Howell v Director of Public Prosecutions
[2021] VCC 112
•17 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01619
| IN THE MATTER OF the Bail Act 1977 |
| and |
IN THE MATTER of an Application for Bail by
MICHAEL HOWELL
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2021 | |
DATE OF RULING: | 17 February 2021 | |
CASE MAY BE CITED AS: | Howell v DPP | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 112 | |
REASONS FOR RULING
CRIMINAL LAW – Bail – Applicant charged with two Schedule 2 offences allegedly committed whilst subject to a CCO for a schedule 2 offence – Applicant required to establish exceptional circumstances justifying grant of bail – Whether unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, and Schedule 2, items 22(ec) and 1(a).
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Barker | Emma Turnbull Lawyers |
| For the Respondent | Ms K Farrell | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The applicant James Howell makes application to this Court for his release on bail.
2 According to the draft summary of prosecution opening,[1] he has been charged with a total of 36 charges relating to eight offending episodes said to have occurred in the six or so week period between 11 September and 24 October 2019. The charges mainly allege dishonesty and driving related conduct, although some involve weapon and drug related conduct. In summary form, the nature and number of those charges are as follows:
[1] Dated 1 February 2021 and tendered as Exhibit A on the application. No trial indictment has yet been filed.
· Theft (12 charges);
· Handle stolen goods (7 charges);
· Go equipped to steal (1 charge);
· Drive whilst disqualified (6 charges);
· Fail to stop vehicle on police request (4 charges);
· Aggravated offence of intentionally exposing an emergency worker to risk by driving (2 charges);
· Prohibited person possess a firearm (1 charge);
· Possess ammunition without holding a licence (1 charge); and
· Possess drug of dependence (cannabis and methylamphetamine) (2 charges)
3 The applicant was arrested and charged by police on 24 October 2019. On that occasion, he is alleged to have been in possession of a stolen red Volkswagen vehicle in which police located various stolen items, a pair of bolt cutters and a spring-loaded punch, drugs, a sawn off 12-gauge shotgun and 23 rounds of compatible 12-gauge shotgun cartridges. When interviewed, he admitted to having driven the stolen red Volkswagen and to having possessed the sawn off shotgun. He also identified the drugs found as being “ice” and cannabis.
4 At a first committal mention on 6 February 2020, the matter was listed for hearing as a contested committal on 13 May 2020. That date had to be administratively adjourned due to the COVID-19 pandemic. It ultimately proceeded on 25 November 2020. The applicant was committed to this Court after entering pleas of not guilty. No trial date has yet been fixed in light of the backlog of vacated trials arising from the suspension of all jury trials on 16 March 2020. That backlog has only very recently been able to be targeted by means of a limited resumption of jury trials. The situation is somewhat unpredictable however, as demonstrated by the 5-day snap Stage 4 lockdown which commenced last Wednesday, resulting in all new trials listed to commence in that period being adjourned.
5 I note that the applicant has been in custody for these matters since his initial arrest on 24 October 2019. His only previous bail application was made at the Magistrates Court on 16 June 2020 and refused.
6 He had therefore served a total period of 470 days on remand by the time his bail application was heard in this Court on 5 February 2021. The relevant period as of today is 482 days not including today’s date.
7 It would seem, based on current expectations, that the trial of this matter will not be able to commence until towards the end of 2021 at the earliest if the applicant remains in custody. Were he to be granted bail, the trial would likely not commence until a date in the first half of 2022.
8 So, as best one can estimate in these unpredictable times, the applicant is likely to spend at least 24 months or so in custody awaiting trial unless granted bail.
Circumstances of the alleged offending
9 The circumstances of the alleged offending are more fully set out in the draft prosecution opening. For present purposes, the following will suffice together with what I have already said at [2]-[3] above.
10 Some of the charges relate to the theft of items from parked vehicles, whilst others relate to motor vehicles which the applicant is alleged to have stolen by having driven them and thereby assuming the rights of the lawful owners.[2]
[2] Including a black Audi, a white Toyota Landcruiser, a black Mazda and a red Volkswagen.
11 The numerous drive whilst disqualified charges involve his alleged driving of those vehicles. On four such occasions, he is said to have taken evasive action by way of erratic and dangerous driving in order to successfully avoid being intercepted by police.
12 The first such occasion occurred on 14 September 2019 and involved a stolen white Toyota Landcruiser. When police attended outside his address, they noticed that he was leaving in that vehicle. They followed him to a location in Delacombe before attempting an interception. On becoming aware of their presence, he is alleged to have begun speeding and driving erratically.
13 The remaining three occasions occurred over a 3 ½ hour period between 10.15pm on 19 October and 1.25am on 20 October 2019. All involved the use of a stolen black Audi.
14 On the first of those occasions, he was seen driving in Ballarat. At one point he turned off the headlights, overtook two vehicles, and drove on the wrong side of the road at 100-kilometres per hour in a 60-kilometre zone.[3]
[3] This incident is said to have occurred at approximately 10.15pm on 19 October 2019
15 The second occasion occurred approximately two hours later when two police officers located the Audi parked in Aquila Court, Ballarat. After parking the police vehicle across the Court, they started to approach the other vehicle on foot. When the Audi’s driver saw this, he put the headlights on high beam and began to accelerate at high speed. The police officers were forced to return to their vehicle and reverse it in order to avoid a collision. The Audi’s driver passed within a metre of the police vehicle at approximately 50-kilometres per hour, mounting the gutter as he did so.
16 The third and final occasion involving the stolen Audi occurred approximately one hour later. As police were travelling along Sturt Street in Ballarat, they saw that vehicle travelling in the opposite direction. In response, police conducted a U-turn and attempted to catch up and intercept the vehicle. As they approached it from the rear, they noticed the driver swerve into the right-hand lane between two taxis and then turn off the headlights.
17 The four occasions just described have been charged on the basis that the applicant drove whilst disqualified and failed to stop the vehicle on police request. On the second occasion involving the Audi, the applicant has also been charged with two counts of the aggravated offence of intentionally exposing an emergency worker (the two police officers) to risk by driving. Those two charges are Schedule 2 offences for the purposes of interpreting and applying the relevant test under the Bail Act 1977.
Exceptional Circumstances Test
18 I note that the parties are agreed that, in the particular circumstances of this case, the court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. As is clear from s.4A (2), the applicant bears the onus or burden in that regard.
19 The exceptional circumstances test in s.4A is engaged here because the applicant is alleged to have committed the previously mentioned two Schedule 2 offences[4] whilst subject to a community correction order for a schedule 2 offence (namely, committing an indictable offence while on bail for another indictable offence). So much is clear from the combination of s.4AA(2)(iv) and Schedule 2, items 22(ec) and 1(a) of the Bail Act.
[4] That is, the two aggravated offences of intentionally exposing an emergency worker to risk by driving.
20 I note that pursuant to s.4A(3), in considering whether exceptional circumstances exist, the court must take into account ‘the surrounding circumstances’ set out in s.3AAA. It is a non-exhaustive definition or list of potentially relevant matters to which the court may, as appropriate, have regard when taking into account the surrounding circumstances. For present purposes, s.3AAA relevantly states:
[T]he bail decision maker must take into account all the relevant circumstances that are relevant to the matter including, but not limited to, the following-
(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 any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused-
…
(v) was subject to a community correction order made in respect of…another offence;
(g) the accused’s personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail or the conditions of bail
(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;
21 In the case of Ceylan,[5] Beach J had to consider whether the applicant had satisfied the ‘compelling reason’ test under s.4C of the Act. He noted that it had replaced the previous ‘show cause’ test, and then observed that for the applicant to show compelling reason why detention in custody was not justified, a synthesis or balancing of all relevant matters must ‘compel’ the conclusion that the applicant’s detention in custody is not justified.[6] A compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that in all the circumstances, the continued detention of the applicant was not justified[7]. However, as he also went on to note, that does not require the applicant to show "a reason which is irresistible or exceptional" as that would place the bar at too high a level in a scheme where the exceptional circumstances test exists as the most onerous test under the Act.[8] Ultimately, he observed that ‘compelling reason’ might be described as “reason which is difficult to resist”.[9]
[5] [2018] VSC 361.
[6] At [46].
[7] At [47].
[8] Ibid.
[9] Ibid.
22 By way of relevant comparison, Beach J noted that the exceptional circumstances test in the Act is intended to be one that is more difficult to satisfy than the compelling reason test.[10] The former focuses on the frequency or rarity of circumstances, the latter on the quality of reasons for a particular decision.[11]
[10] At [45].
[11] At [46] fn 31.
23 In Re CT[12], Champion J noted the following:
The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail.’ It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances is a high one.’ That having been said, it is not an impossible standard to reach.[13]
[12] [2018] VSC 559.
[13] Ibid, at [64].
24 As was later noted by Priest J in the case of Gloury-Hyde[14], the concept of exceptional circumstances is a somewhat elusive one. Like Beach JA in Ceylan, he accepted that it is well-established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[15]
[14] [2018] VSC 393.
[15] At [35] (case references and citations omitted).
25 More recently, in Afram,[16] Tinney J observed that the authorities emphasised how difficult it was to establish the existence of exceptional circumstances.
[16] [2018] VSC 708, [24].
26 Even more recently, in Sipser,[17] Beach J referred with approval to Beale J’s reference in Re Reker [18] to what Kaye J had said in DPP v Muhaidat.[19] The quoted passage was in the following terms:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[20]
Unacceptable Risk Test
[17] [2019] VSC 362, [43].
[18] [2019] VSC 81.
[19] [2004] VSC 17.
[20] Muhaidat [2004] VSC 17, [13] – [14].
27 As s.4A (4) makes clear, the finding of exceptional circumstances by a Court is not the end of the matter. So, if a court is satisfied that exceptional circumstances exist that justify the grant of bail, it must then proceed to apply the ‘unacceptable risk’ test contained in s.4E(1). That section states as follows:
The bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that-
(a) there is a risk that the accused would, if released on bail-;
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
28 As s.4E(2) states, in the event that the court is required to proceed to this second step, the prosecution bears the burden of satisfying the court that there exists a risk of a kind mentioned in sub-s.1(a) and that the risk is an unacceptable risk.
29 Section 4E(3) further provides that in considering whether a risk mentioned in sub-s.(1)(a) is an unacceptable risk, the court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Other provisions
30 Finally, I also note that when interpreting the Bail Act, this court is required by s.1B to take into account, among other things, that Parliament recognises the importance of maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.
Applicant’s submissions
31 The applicant’s counsel relied on his detailed written submissions together with his very brief oral submissions which were well prepared and appropriately focused on the matters relevant to this Court’s task.
32 In terms of exceptional circumstances, he placed particular reliance on the following factors and submissions in combination to satisfy the test:
(a) The nature and seriousness of the alleged offending range from the comparatively mundane to the very serious; the most serious of the offences being the two alleged aggravated instances of intentionally exposing police officers to risk by driving;
(b) While the prosecution case is generally strong, the case against the applicant in respect of the two most serious charges is far from strong and rests heavily on a questionable and fraught identification by one of the police officers who purports to have recognised the applicant based on one previous contact and from a photograph which appeared in an internal police circular. A strong identification direction would be required at any trial given the difficult circumstances in which the purported identification occurred: of a driver in a moving vehicle, at night, for a very short period and in frightening circumstances;
(c) The significant delay and remand period that will elapse before any jury trial can be held; a period of at least two years since the applicant was arrested and remanded in custody. Depending on what offences are able to be proven by the prosecution, such a period may end up representing a significant portion or more of the sentence the applicant is likely to receive for the offending;
(d) The onerous COVID-19 conditions in which the applicant has been housed while on remand to date and the fact that such conditions will continue, to varying extents, well into the foreseeable future;
(e) The relative youth, immaturity and vulnerability of the applicant. He had only just turned 21 at the time of his arrest and turned 22 in August of last year. He experienced a difficult and deprived upbringing and has been diagnosed with an intellectual disability;
(f) The applicant has some supports available to him if released on bail. He can reside with his half-sister’s mother, Michelle, whom he regards as like a step-mother. An intensive and wide-reaching raft of programs can be utilised under the NDIS/ CROP plan which far exceeds previous rehabilitative supports offered in the past, including via CCO’s. The proposed programs include behaviour supports which are functional behaviour assessments to consider strategies that will assist him to maintain engagement with disability supports such as long term stable accommodation and employment and to make informed choices about where he spends his money;
(g) The applicant has been receiving some assistance with his drug problem while on remand through the prescription of pharmacotherapy (methadone), which he wants to continue after his release from custody;
33 In the event that the Court was satisfied that exceptional circumstances had been established and was therefore required to move to the second step, counsel for the applicant submitted that the prosecution were not able to establish that the applicant would represent any relevant unacceptable risk if released on bail.
34 Counsel frankly acknowledged that the applicant presents as a risk of re-offending if released on bail. However, he emphasised the available supports and the nature and the extent of the bail conditions which could be imposed in order to ameliorate any such risk to an acceptable level. For example, the applicant can engage with a GP, continue with a methadone program, and engage with ACSO. He can also access an online service for advice on the best type of counselling/treatment for his gambling problem. And, he can engage with his NDIS support worker and the various services and programs on offer. The NDIS plan will provide 9 hours of personalised support, 6 of which will involve ‘one on one’ work with his disability support worker. That assistance will include strategies to help him comply with his bail conditions were bail granted.
35 Apart from any conditions which could direct the applicant to engage with those services and personnel, in particular NDIS and his support worker, other conditions could be imposed to reduce any relevant risks, including that relating to re-offending. Such additional conditions could include a curfew, a requirement to present to police officers at the front door if requested, a reporting condition and a condition prohibiting the use or possession of drugs.
36 So, the applicant’s counsel argued, release on such a strict and targeted bail regime would sufficiently mitigate any risk such that it would not be ‘unacceptable’.
Respondent’s submissions
37 In response, counsel who appeared on behalf of the Director submitted that the matters relied on by the applicant did not amount to exceptional circumstances justifying the grant of bail, whether considered individually or in combination. As such, there was no need for the court to consider proceeding to the second step of considering whether the respondent had established that the applicant presents as an unacceptable risk if released on bail. In the alternative, she submitted that in the event that the Court was satisfied that exceptional circumstances exist, then the Court should also be satisfied that the applicant would, if released on bail, present as an unacceptable risk to commit an offence while on bail, endanger the safety or welfare of any person and fail to appear and surrender himself into custody in accordance with the conditions of bail.
38 The prosecution reminded the court that the exceptional circumstances test was a high one and difficult to meet. In that context, they made a number of submissions in relation to the surrounding circumstances and matters relied on by the applicant’s counsel.
39 The delay to trial, while of some significance, is by no means ‘inordinate’ or capable of establishing exceptional circumstances, even when considered in combination with any other relevant circumstances.
40 The prosecution case is strong in relation to many of the charges, including the serious weapon offence involving the applicant’s unexplained possession of a sawn off shotgun as a prohibited person in circumstances where he also had ready access to live ammunition for that weapon. The prosecution case relating to the two Schedule 2 offences was not weak and involved a circumstantial case beyond just the observations of the identifying police officer at the time. He had had a previous contact with the applicant. And, another police officer had seen the applicant driving the very same vehicle on a previous occasion.
41 Prosecuting counsel emphasised the seriousness of the alleged offending, which both she and the applicant’s counsel referred to during the application as ‘a spree’.
42 Counsel for the prosecution submitted that in the event of the applicant being convicted, he would face the very real possibility of receiving a lengthy term of immediate imprisonment. That submission was essentially based on the seriousness and extent of the alleged offending, the applicable maximum penalties and the relevant and significant criminal history of the applicant.
43 The personal circumstances of the applicant were not exceptional, submitted the prosecution, even when combined with the other matters relied on by the applicant’s counsel. So, the prosecution submitted, none of the matters relied on by the applicant warranted a finding of exceptional circumstances.
44 In the alternative, it was put that even if it did, the prosecution can and have established that the applicant, if released on bail, would pose an unacceptable risk to commit an offence while on bail, endanger the safety or welfare of any person and fail to appear and surrender himself into custody in accordance with the conditions of bail.
45 In this context, counsel for the respondent addressed a number of aspects of the applicant’s criminal record which was tendered as exhibit C on the application. In 2018, the applicant was convicted of one charge of reckless conduct endanger serious injury, one charge of drive in a manner dangerous, and four charges of assault emergency worker on duty. In 2017, he was convicted of aggravated burglary (person present). His record includes many findings of guilt and convictions for offences involving dishonesty as well as for driving while disqualified. In both 2017 and 2018, he was convicted of a charge of fail to stop vehicle on police direction.
46 The applicant’s criminal history also has numerous entries for bail related offending. For the offence of committing an indictable offence whilst on bail he was sentenced for 5 charges in 2016, 5 charges in 2017 and 3 charges in 2018. For the offence of contravene a conduct condition of bail, he was sentenced for 5 charges in 2016, 9 charges in 2017and one charge in 2018. He has also been sentenced for two charges of fail to answer bail, initially in 2017 and again in 2018.
47 The applicant has also breached a number of court orders. He has multiple convictions for driving whilst disqualified. He breached a 2016 youth supervision order, a 2017 community correction order that included a condition that he participate in a justice plan, a varied 2017 community correction order and a 2018 community correction order imposed as part of a combination sentence.
48 The prosecution submitted, in effect, that the applicant’s criminal history demonstrated a scant disregard for the law and very little if any basis for confidence in his motivation and/or ability to abide by any future conditions of bail no matter how targeted or stringent they may be.
Analysis
49 I now turn to consider the relevant issues and surrounding circumstances in this application.
50 As is clear from the nature and extent of the current charges, the applicant is alleged to have engaged in very serious offending. I regard the three most serious of the charged offences, if proven, to be relatively serious examples of their type. If a court were required to sentence him in respect of those charges, it would need to do so cognisant of his relevant and extensive criminal history.
51 The applicant’s prior criminal record indicates that he has received a plethora of dispositions in recent years ranging from an adjourned undertaking and probation at one end and immediate imprisonment at the other. In between, he has received a youth supervision order, community correction orders and youth justice detention.
52 In my view, if convicted at trial, the applicant would likely be facing the very real likelihood of being sentenced to a significant term of immediate imprisonment and not necessarily one that did not exceed the time that he would spend on remand until trial in the event that he were refused bail today.
53 As to the relative strength of the prosecution case, I am reluctant to say too much given the fact that the depositions are not yet to hand and there may be future arguments in relation to the admissibility of some of the evidence at trial. The most that I am prepared to say at this stage is that, based on what is known and conceded, the prosecution case appears to be generally strong but not as strong in respect of the two charges alleging the aggravated offence of intentionally exposing an emergency worker to risk by driving. I have noted and considered the respective and contrasting arguments of the parties on this issue. Whilst it is difficult to gauge with any certainty or precision the relative strength of the prosecution case for those charges in the present circumstances, it appears to be neither strong nor very weak.
54 I accept that the personal circumstances of the applicant are as has been outlined by his counsel.
55 I also accept the estimate of the likely time that the applicant will spend on remand to trial if he is refused bail and the onerous nature of that experience, particularly given his vulnerabilities and the restrictive conditions in place to deal with the risks posed by the COVID-19 pandemic. They are significant matters to consider in the balancing exercise that must be undertaken.
Conclusion
56 Having considered all of the relevant matters raised in this application, I have concluded that the applicant’s submission that exceptional circumstances that justify the grant of bail have been established by a combination of circumstances should be accepted.
57 Accordingly, this court must proceed to the second step and consider the ‘unacceptable risk’ test. In the particular circumstances of this case, having regard to all of the relevant surrounding circumstances, I have concluded that the prosecution has discharged the burden that they faced in that context.
58 Whilst I accept that the proposed conditions for bail may go some little way towards ameliorating the risks posed by the applicant if released on bail, I do not consider that they come close to reducing such risks to an acceptable level.
59 He has a drug problem for which he is yet to receive any long term and sustained counselling and treatment. I suspect that his drug addiction is at least part of the explanation for some of his previous offending.
60 The applicant’s prior criminal history is extensive and very significant, in my view. He appears to have learned very little from his many previous court appearances in which sentencing courts have endeavoured to assist him with his rehabilitation. He has continued to flout the law and the court’s orders. He has treated past opportunities when released on bail with contempt. He has been proven to have endangered members of the community in the past, including emergency workers on duty. His propensity to continue driving whilst disqualified and his previous preparedness to fail to stop the vehicle on police request are of significant concern. He appears not to have been deterred by previous sentences, including youth detention and immediate imprisonment.
61 The nature of some aspects of his current alleged offending are very troubling, in particular, the charge of being in possession of the sawn off shotgun as a prohibited person (with ammunition) and the two aggravated offences of intentionally exposing an emergency worker to risk by driving.
62 In my view, there are real and substantial reasons for residual concern notwithstanding the measures that can be put in place insofar as any bail conditions are concerned.
63 My principal concerns are in relation to the significant ongoing risk that the applicant would pose in relation to re-offending and endangering the safety and welfare of persons if released on bail. That said, I also have concerns about him appearing in answer to his bail conditions given his two previous convictions for failing to appear.
64 As I have already indicated, the burden rests with the prosecution when it comes to the appropriate risk assessment test; unless the prosecution can establish that the applicant is and remains an unacceptable risk to commit further offences if released on bail, then this court must grant bail in circumstances where the court has been prepared to find that the applicant has demonstrated that exceptional circumstances exist that justify the grant of bail.
65 In the end, the question of risk is one of fact and degree. What is clear is that the applicant has a very poor history in regard to previous grants of bail and in complying with police directions and courts orders. It would seem that over recent years he has been either unwilling or unable to comply with those bail conditions and court orders, even when his liberty is at risk. Such a past attitude and demeanour does not augur well for the future. His past history would strongly suggest that he is at high risk, if released on bail, to commit further indictable offences and thereby endanger the safety of one or more members of the public. The risk of not appearing and surrendering himself into custody in answer to bail, while not as high, remains significant in my view. Those risk assessments have been made by me fully cognisant of the available supports being offered to the applicant on his release and the related bail conditions that could be imposed to try and encourage the applicant to engage with those supports and thereby endeavour to reduce the risks that he poses.
66 In coming to the ultimate conclusion that I have, I have borne in mind that it is the prosecution who bear the relevant onus and that there are a number of conditions suggested by the applicant’s counsel that could be put in place to lessen the risk. In the end, however, whilst I am prepared to accept that the risks of re-offending, endangering persons and failing to appear would likely be reduced to some extent, I remain of the view that those risks would not be reduced to the extent that they were no longer unacceptable risks.
67 Accordingly, Mr Howell’s application for bail is refused.
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