ML
[2022] VSC 10
•21 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0001
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by ML |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 January 2022 |
DATE OF JUDGMENT: | 21 January 2022 |
CASE MAY BE CITED AS: | Re ML |
MEDIUM NEUTRAL CITATION: | [2022] VSC 10 |
---
CRIMINAL LAW — Bail — Application for bail pending de novo appeal against sentence and conviction in County Court — Charges of persistent contravention of a family violence intervention order and contravening a family violence intervention order intending to cause harm or fear — Whether ‘exceptional circumstances’ or ‘compelling reason’ test applies — Magistrate erred in requiring applicant to show ‘exceptional circumstances’ — ‘Compelling reason’ test applicable — Possibility sentence will have been served at time of appeal —Compelling reason established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4C, 4D, 4E, 5AAAA; Criminal Procedure Act 2009 (Vic) s 265.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms. Rebecca Heley | Rolfe Criminal Law |
| For the Respondent | Dr. Jason Harkess | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by ML (the ‘applicant’). An order for bail is sought pending his appeal against conviction and sentence for offences of persistent contravention of a family violence intervention order (‘FVIO’) and contravening a FVIO intending to cause harm or fear.
The applicant was sentenced for those offences on 14 December 2021 in the Magistrates Court to a total effective sentence of eight months’ imprisonment, with 125 days reckoned as time served. He filed a notice of appeal the following day. That appeal proceeding is listed on 9 February 2022 at Mildura County Court for first mention. The appeal itself is yet to be listed. The applicant’s sentence was originally thought to expire on 11 April 2022 but due to the allocation of Emergency Management Days that date is now likely to be during March 2022.
Procedural history
On 6 August 2021, the applicant was arrested by Detective Senior Constable Anthony Lee and charged with nine offences, being persistent contravention of a FVIO; stalking; contravening FVIO (six charges); and contravening a FVIO intending to cause harm or fear. He was remanded in custody.
On 16 August 2021 the applicant was refused bail at Mildura Magistrates’ Court on the basis that he failed to show a compelling reason to justify a grant of bail and posed an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person and interfering with a witness or otherwise obstructing the course of justice. The applicant made further applications for bail on 24 August and 11 October 2021 which were refused on the basis that he failed to show a compelling reason and posed an unacceptable risk.
After a contested hearing on 3 and 6 December 2021, the applicant was found guilty of persistent contravention of a FVIO and contravening a FVIO intending to cause harm or fear. The balance of the charges were struck out. The applicant was assessed for a community correction order (‘CCO’), however he did not consent to the order being made and was therefore found unsuitable. On 14 December 2021, as detailed, the applicant was sentenced to eight months’ imprisonment with 125 days recognised as time served.
After filing a notice of appeal on 15 December 2021, the applicant was refused appeal bail at Mildura Magistrates’ Court on 17 December 2021 on the basis that he had failed to demonstrate exceptional circumstances which justified a grant of bail and posed an unacceptable risk of committing an offence whilst on bail and endangering the safety and welfare of any person. By application dated 6 January 2022, the applicant now applies for bail in this Court.
The alleged offending
Background
The applicant and complainant were in a relationship for nine years, however they separated in April 2020. They share a daughter, R.
On 7 June 2021 a final FVIO was granted against the applicant, listing the complainant and R as the affected family members (‘AFMs’). The order includes full “no contact” conditions, with exceptions to do anything permitted under a Family Law Act order, child protection order or written childcare agreement, communicate through a lawyer or mediator, and participate in counselling or mediation. The FVIO is due to expire on 6 June 2023.
The applicant and complainant also jointly owned a property in Ouyen (‘the Ouyen property’), which the Family Court ordered the complainant could sell and retain all profits.
Informant Lee matter
On 27 July 2021 the applicant attended the real estate agency who had listed the Ouyen property for sale and abused staff. As a result of the applicant’s behaviour, the agency refused to sell the property and the complainant was forced to engage an alternative real estate agency. The applicant contacted the alternative real estate agency on 31 July and 2 August 2021 and stated that he would take legal action against them if they sold the Ouyen property.
On 30 July 2021 the applicant attended the residence of the complainant’s brother BB and demanded to know the complainant’s address. BB refused to provide this information and the applicant left the address. The applicant told BB not to tell anyone that he attended, as he was contravening the FVIO. The applicant re-attended BB’s address on 31 July 2021, however BB did not open the door.
On 31 July 2021 the applicant contacted the complainant’s friend and requested to see his daughter R.
The applicant contacted the complainant on 2 August 2021 on a private number. The complainant answered the phone and immediately recognised the applicant’s voice, before ending the call.
On 11 August 2021 the applicant attended Mildura Police Station for arrest and interview. The applicant made no admissions to the alleged offending, and was remanded in custody.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[1]
[1]Bail Act 1977 (Vic), s1B(2).
The parties submitted that the applicant is required to show a compelling reason that justifies the grant of bail pursuant to s 4AA(3) of the Act, as he is accused of a Schedule 2 offence.[2] On this analysis, it follows that bail must be refused unless the Court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[3] In considering whether a compelling reason exists the Court is obliged to take into account all of the relevant surrounding circumstances including, but not limited to, those set out in s 3AAA of the Act.[4]
[2]Ibid schedule 2, item 19 (persistent contravention of a FVIO).
[3]Ibid, ss 4C(1A)-(2).
[4]Above n 1, s 4C(3).
Notwithstanding parties’ agreed position on the applicable test, it is prudent to consider what was said by their Honours Maxwell P, Beach and Weinberg JJA in Cvetanovksi v The Queen on the principles governing applications for bail pending appeal:[5]
[1]An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.
[2]Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court. A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.
[3]In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant’s non-parole period. The fundamental principle is one of fairness. Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.
[5][2020] VSCA 126, [1]-[3].
The parties and were united that this case is distinguishable from the present application and that the appropriate test is the compelling reason test.
The Act is silent on the particular arrangements that apply when an application is made for bail pending appeal. As can be seen, the Court of Appeal have prescribed a test which requires an applicant to establish exceptional circumstances. However, Cvetanovksi v The Queen and Re Zoudi dealt with matters where the charges had been heard before a jury either in the County Court or in this Court and verdicts obtained. Understandably the Court of Appeal did not deal with the rules that apply to applications for bail pending an appeal from the Magistrates Court to the County Court of Victoria, which is dealt with by way of a hearing de novo. The difference is important and in my view this case is distinguishable from cases like Cvetanovski v The Queen and Re Zoudi primarily because of the nature of the appellate hearing in the County Court and because the Criminal Procedure Act 2009 (Vic) contains the following provision:
265Bail pending appeal
(1)If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant—
(a)may apply to the Magistrates' Court to be released on bail; and
(b)if he or she makes an application under paragraph (a), must give reasonable notice of the application to the respondent to the appeal.
(2)If an application is made under subsection (1), the Magistrates' Court must either grant or refuse bail as if the appellant were accused of an offence and were being held in custody in relation to that offence and, for this purpose, the Bail Act 1977 (with any necessary modifications) applies.
It is true that s 265 of the Criminal Procedure Act 2009 (Vic) does not refer to applications for bail in this Court pending County Court appeals from the Magistrates Court but for all intents and purposes I am in the same position as a Magistrate faced with an application for bail pending appeal. It was not in issue that this Court has jurisdiction to hear this application as a consequence of s 18AH of the Act.
In Re Application for Bail by Tyson Searancke, his Honour Weinberg JA, as he then was, held that the requirement in Re Zoudi that “bail pending appeal to the Court of Appeal would only be granted where “exceptional circumstances” were shown” does not apply when determining whether to grant an applicant bail pending appeal from the Magistrates’ Court to the County Court, “where the appeal is by way of hearing de novo”.[6]
[6][2017] VSC 489, [7] and [9].
That being the case, in my opinion cases involving an application for bail pending a de novo appeal from the Magistrates’ Court to the County Court are distinguishable from the pronouncements of the Court of Appeal referred to. The test that applies in this application is the same test that would have applied to the bail applications previously made in the Magistrates Court – the applicant must show a compelling reason that would justify a grant of bail.
If satisfied to the requisite standard that bail is justified, the Court must then consider the unacceptable risk test.[7] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[8] In determining whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[9]
[7]Above n 1, ss 4A(4), 4D(1)(a).
[8]Ibid, ss 4D(2)-(3), 4E.
[9]Ibid, s 4E(3).
Finally, s 5AAAA(1) of the Act requires the Court to make inquiries of the respondent as to whether there is in force against the applicant a FVIO, family violence safety notice or another recognised domestic violence order. Further, as the applicant 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.[10]
[10]Ibid, s 5AAAA(2).
The respondent has confirmed the applicant is currently subject to a final FVIO, listing complainant and R as the AFMs. The order was initially granted on 20 April 2020 and extended on 7 June 2021, due to expire on 6 June 2023.
The applicant’s personal circumstances
The applicant is 41 years old.
As I have already said, the applicant was in a relationship with the complainant for approximately nine years before they separated in 2020. They have one daughter, R, who is in the full-time care of the complainant.
The applicant was previously employed as an interstate truck driver and is also a qualified mechanic.
Criminal history
The applicant has a relevant criminal history in Victoria spanning to 2002 to 2020, including the following:
(a) May 2020: the applicant was fined $2,000 with conviction for charges of make threat to kill and commit indictable offence whilst on bail. This related to an incident whereby the applicant threatened to kill his father.
(b) July 2020: the applicant was sentenced to 28 days’ imprisonment for charges of contravene FVIO, contravene a conduct condition of bail, criminal damage and use carriage service to harass. This related to two family violence incidents in 2020. In April 2020 the applicant sent complainant a number of derogatory and threatening text messages, and broke a chair against her car window. On 18 June 2020 the applicant attempted to pick up R from day-care, in contravention of the FVIO and his bail conditions.
(c) October 2020: the applicant was sentenced to 28 days’ imprisonment for charges of make threat to kill and contravene FVIO. This related to an incident whereby the applicant attended the complainant’s address in contravention of the FVIO, and made a threat to kill the complainant’s mother.
The applicant’s contentions
Ms Heley on behalf of the applicant relied on the following matters, in combination, in support of the application.
Nature and seriousness of the alleged offending
Ms Heley characterised that the objective seriousness of the offending is low, categorising it as a single phone call to the complainant; a request of the complainant’s brother for the complainant’s address; and attempts by the applicant to contact his daughter and prevent the sale of the property he owns with the complainant.
Strength of the prosecution case
Ms Heley conceded that the contravention of FVIO on 27 July 2021 is proven. However, the applicant intends to contest the remaining contraventions that constitute the persistent contravention charge, primarily disputing that his actions constituted family violence.
Criminal history
Although it was conceded that the applicant has priors for family violence offences, it was submitted that his criminal history is limited and somewhat sporadic.
Bail compliance history
The applicant has no prior history for failing to appear on bail but he does have prior findings of guilt for other bail offences. He was not on bail at the time of the alleged offending.
Outstanding matters
The applicant has no other outstanding matters and was not subject to sentencing orders at the time of the alleged offending.
Family violence intervention order in force
It was submitted on the applicant’s behalf that he does not have a history of perpetrating physical violence against the AFMs. He intends to enter into a parenting plan with the complainant regarding their shared daughter and it was submitted that, once this is in place, there will be no need for him to contact the complainant, and thus his risk of reoffending will be reduced. It was contended on the applicant’s behalf generally that he poses a low risk of committing family violence, and that any risk can be mitigated by the imposition of bail conditions which prevent the applicant from having any contact with the complainant.
Family support and stable accommodation
The applicant has strong support from both of his parents, and it was proposed that he will reside at one of their properties, either in Mildura or Ouyen, if released on bail. A further alternative living proposal is that the applicant reside at a nominated caravan park in a caravan owned by his parents. They are prepared to financially support him.
Special vulnerability
The applicant reports that he suffers from depression and anxiety and was prescribed anti-depressants and Valium.
Availability of treatment or bail support services
The applicant is willing to engage with community-based services including a Men’s Behaviour Change Program, counselling and obtaining a Mental Health Care Plan.
Delay and likely sentence
It was submitted that if bail is not granted, there is a real risk that the applicant will serve his entire sentence before his appeal is heard and determined. As the Lee matter is listed for first mention on 9 February 2022 and there are only six sittings at Mildura County Court in 2022, it was submitted that it is unlikely that the matter will be finalised before the expiration of the applicant’s sentence.
The applicant intends to appeal both conviction and sentence, although the conviction appeal is limited and does not extend to all charges. It was submitted that, even if the conviction appeal is not successful, it is still unlikely that a penalty will be imposed greater than the pre-sentence detention already served.
COVID-19 and onerous conditions in custody
Ms Heley submitted that the applicants time in custody has been more onerous due to COVID-19 restrictions on in-person visits.
Surety
The applicant’s parents are willing to offer a $5,000 surety.
Unacceptable risk
It was submitted that any risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, geographical exclusion from Mildura, reporting, not to contact prosecution witnesses, to comply with the FVIO, to engage in a Men’s Behaviour Change Program and a surety.
The respondent’s contentions
Dr Harkess on behalf of the respondent conceded that it is open to the Court to find that a compelling reason exists that justifies the grant of bail. The application for bail was, however, opposed on the basis that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relied on the following.
Nature and seriousness of the alleged offending
The respondent characterised the alleged offending as persistent, deliberate and highly motivated.
Strength of the prosecution case
The prosecution case is said to be strong, especially in light of the fact that the applicant has been found guilty of both charges in the Magistrates’ Court.
Criminal history
The applicant has a pattern of similar offending in the last two years, and it was submitted that he has not been deterred by his periods of imprisonment.
Bail compliance history
The applicant has one prior conviction for committing an indictable offence whilst on bail.
Family violence intervention order in force
The applicant has a history of contravening the FVIO in place protecting the complainant and R. Although the Ouyen property has now been sold, the parties have not finalised child custody arrangements and it was submitted on the respondent’s behalf that there remains a risk of further contraventions of the FVIO. It was noted that the applicant was previously subject to a FVIO protecting his father MH, following the threat to kill made in May 2020. That order expired on 24 May 2021.
Availability of treatment or bail support services
It was submitted on the respondent’s behalf that the applicant may not be suitable for family violence support programs such as the Men’s Behaviour Change Program, as he will be required to acknowledge that his behaviour constitutes family violence.
Complainant’s views on bail
The complainant is of the view that the applicant will continue contravening the FVIO and fears for her safety if the applicant is granted bail.
Delay and likely sentence
It was not conceded that, if the conviction appeal is unsuccessful, the applicant is unlikely to be sentenced to a term of imprisonment exceeding the time he has already served. It was further submitted on behalf of the respondent that there would only be an injustice if the applicant spent more time remanded in custody than the term of imprisonment ultimately imposed.
Unacceptable risk
Endangering the safety and welfare of any person
It was submitted that the risk factors surrounding child custody issues and settlement of property remain live, and therefore there is a risk the applicant will continue to breach the FVIO.
Committing an offence whilst on bail
It was submitted that the applicant’s history of family violence offending and his minimisation of prior convictions, as stated in his CCO assessment report which was filed with the Court, suggest that the applicant poses a risk of committing further offences if granted bail. It was submitted that the applicant lacks insight into his offending behaviour and has shown disregard for complying with court orders. It was further noted that the applicant has a prior conviction in May 2020 for committing an indictable offence whilst on bail.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submitted that the applicant has demonstrated a propensity to threaten and intimidate witnesses by virtue of the nature of the alleged offending.
Analysis and conclusion
This applicant has already served in excess of half of the sentence that was imposed on him. He has appealed against both conviction and sentence. The only thing that is known at this stage is that the matter will be mentioned in the Mildura County Court on 9 February 2022. When the appeal itself will be heard is unknown. Dr Harkess for the respondent suggested that the hearing of the appeal will be listed promptly after the mention hearing given the applicant is in custody, but conceded this submission is speculative. In the Magistrates Court, the matter was heard over two days. It is at least foreseeable, if not likely, that the applicant will have served the entirety of the sentence imposed in the Magistrates’ Court before the finalisation of the appeal. In my opinion, that circumstance alone establishes a compelling reason that would justify a grant of bail. Dr Harkess did not press a different outcome.
The significant issue on the hearing of this application was the question of risk. It was urged on behalf of the respondent that bail be refused because of the risk of further offending by the applicant against the complainant. At present there is a FVIO in force, however it was argued that this order will not preclude the applicant from further similar offending. Whilst the charged offending does not involve physical violence, Dr Harkess made the point that it certainly involved threats of such violence and that the intimidating nature of the alleged conduct makes this an example of serious family violence nonetheless. I respectfully agree with that submission. However, the fact is that in the next few weeks the applicant is going to be released from custody in any event. In my opinion, his release on bail with strict conditions has the potential to at least commence the process of some form of rehabilitation pending the hearing of his appeal.
In addition, the applicant enjoys both the emotional and financial support of his parents. His proposed involvement in Men’s Behaviour Change Program counselling and obtaining of a Mental Health Care Plan are also important protective factors that can be incorporated into conditions of bail.
I consider that a surety and other appropriate conditions of bail will serve to protect the complainant and the community such that the risk of releasing the applicant on bail is not unacceptable. Any breach of these conditions would result in the return of the applicant to custody until his appeal is heard.
Therefore, the applicant will be released on bail and I will make the following orders:
1.The said ML (‘the applicant’) be admitted to bail upon his own undertaking with a surety in the amount of $5,000 by MB and MH and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’);
(b)The applicant not leave his place of residence between the hours of 9:00 pm and 7:00 am;
(c)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of Detective Senior Constable Anthony Lee (‘the informant’) or his nominee, being an authorised member of Victoria Police;
(d)The applicant must notify the informant or his nominee at least 48 hours in advance of any proposal to change to his place of residence;
(e)The applicant is to report to the Officer in Charge of the Ouyen Police Station, or his or her nominee, every Monday, Wednesday and Friday between the hours of 7:00 am and 8:00 pm;
(f)The applicant not commit ‘family violence’ within the meaning of the Family Violence Protection Act 2008 (Vic);
(g)The applicant comply with any current Family Violence Intervention Order in which he is the respondent;
(h)The applicant not contact or attempt to contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, except as permitted by any current Family Violence Intervention Order in which he is the respondent;
(i)The applicant is not to possess or use more than one mobile phone;
(j)The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or his nominee;
(k)The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the reasonable request of the informant or his nominee;
(l)The applicant not attend the city of Mildura in the State of Victoria;
(m)The applicant self-refer to a Men’s Behavioural Change Program within 7 days of being released on bail and provide evidence of the referral to the informant or his nominee;
(n)The applicant obtain a Mental Health Care Plan within 7 days of being released on bail and provide confirmation of obtaining the Mental Health Care Plan to the informant or his nominee;
(o)The applicant is to appear:
(i)at the County Court at Mildura at 9:30 am on 9 February 2022 and any such other date thereafter as directed by that Court; and
(ii)at this Court, for the purpose of judicial monitoring, at 9:30 am on 10 February 2022 and thereafter as directed by this Court.