Re AH
[2021] VSC 426
•16 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0169
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by ADRIAN H | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2021 |
DATE OF RULING: | 16 July 2021 |
CASE MAY BE CITED AS: | Re AH |
MEDIUM NEUTRAL CITATION: | [2021] VSC 426 |
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CRIMINAL LAW – Bail – Applicant charged with recklessly causing injury and other offences – Family violence offences – Applicant prima facie entitled to bail unless respondent establishes unacceptable risk – Whether applicant poses an unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Mitchell | Michael J Gleeson & Associates |
| For the Respondent | Mr J Jassar | Victoria Police |
HER HONOUR:
Introduction
Adrian H (‘the applicant’) is 29 years old, and this is his first time in custody. He has been on remand since 23 June 2021 for the following charges that relate to offending that occurred on 22 June 2021:
(a)Where the informant is First Constable Benjamin Price (‘Price Charges’)[1](this offending is alleged to have occurred at around 4pm):
[1]First Constable Price confirmed at the oral hearing that the lesser charges are laid in the alternative to the most serious charge.
(i) Recklessly cause injury on 22 June 2021 contrary to s 18 of the Crimes Act 1958 (Vic)(‘Crimes Act’);
(ii) Two charges of Unlawful assault on 22 June 2021 contrary to s 23 of the Summary Offences Act 1966 (Vic)(‘Summary Offences Act’);
(iii) Common law assault on 22 June 2021 contrary to common law; and
(iv) Aggravated assault on 22 June 2021 contrary to the Summary Offences Act.
(b)Where the informant is First Constable Healy (‘Healy charge’)(this offending is alleged to have occurred at approximately 9pm):
(v) Contravention of a family violence safety notice (‘FVSN’) on 22 June 2021 contrary to s 37(2) of the Family Violence Protection Act 2008 (Vic).
The applicant seeks bail for both matters.
On 23 June 2021, the applicant was refused bail on both matters in the Melbourne Magistrates’ Court, on the basis that he posed an unacceptable risk of committing an offence while on bail and endangering the safety or welfare of any person.[2]
[2]Certified Extract of orders of the Melbourne Magistrates Court on 23 June 2021, exhibited at HL-3 of the Affidavit in Support of Bail of Helen Le affirmed 5 July 2021 (‘Affidavit in Support’).
The Price and Healy Charges are next listed on 30 July 2021 for Mention in the Broadmeadows Magistrates’ Court.
Circumstances of offending and arrest
The complainant in the Price and Healy charges is Adrian H’s half-sister, SA. They shared the same mother, Michelle H.
Michelle H died on 18 May 2021. At the time of her death, and for the two months immediately prior, Adrian H had been attending on a daily basis and caring for her in her unit in Broadmeadows (‘the Broadmeadows address’). At the time of the current offending, Adrian H had been in the process of clearing and tidying the Broadmeadows address, as the lease on that property was due to end. SA was assisting Adrian H with this, and had been residing at the Broadmeadows address for the previous five weeks. Michele H’s funeral was held the day before the alleged offending.
The offending that gave rise to the Price charges
The allegations against Adrian H on the Price charges are that at 3:00pm on 22 June 2021, Adrian H and SA were at the Broadmeadows address. An argument arose about SA’ request for money. SA left the Broadmeadows address but returned 45 minutes later. At that time, Adrian H was in the lounge room, and the two continued arguing about SA’s earlier request for money. Adrian H became aggressive during the argument and SA alleges he dragged her up the stairs by the hair while yelling at her and that he choked her, and ‘jumped’ on her face, kicking her approximately six times. Adrian H and SA’s aunt, Sharlene S (the sister of the applicant’s biological father) tried to intervene, but Adrian H pushed her away. Adrian H is alleged by SA to have then dragged her up a second flight of stairs and into SA’s bedroom here he pushed her onto the bed and said ‘this is what your dad did to my mum when we were younger’. SA responded ‘The reason mum’s not here is because of you’. Adrian H then assaulted SA and started choking her again. SA kicked out and broke a nearby window while this was happening, which caused a cut on her heel. Sharlene S told Adrian H to get off SA, and SA freed herself and ran to a neighbours’ home. Police were alerted to the situation. The neighbour drove SA to her maternal aunt Irene’s residence in Dallas (‘the Dallas address’). Ten minutes Adrian H went to a caravan at the Dallas address, where he went inside and spoke to a friend, Jodie. He did not engage with SA at the Dallas address.
Police attended the Dallas address shortly after and located Adrian H in the caravan. He was arrested by First Constable Price and taken to the Broadmeadows Police Station. He was interviewed, and released at around 8:50pm pending further enquiries and served with a FVSN prohibiting him from going within 200 metres of the Dallas address. SA did not provide a statement to police at this time, and although police arranged paramedics to attend to SA, SA declined further medical attention.[3] SA sustained bruising to her eye and lips,[4] but the informant did not observe any bruises or marks on her neck.[5]
[3]Statement of SA, dated 23 June 2021, [22].
[4]See Exhibit 1 to the Preliminary Brief, annexed at NPW-2 to the Affidavit in Response to Bail of Nathan Watt sworn 13 July 2021 (‘Affidavit in Response’).
[5]Evidence of informant First Constable Price.
The Healy charge
At approximately 9:30pm, Adrian H attended the Dallas address to collect his car. When he arrived, he allegedly began verbally abusing his aunt Irene. He remained at the address for approximately one hour, until SA attended with two other males. The two males and Adrian H had a verbal argument before Adrian H left in his car.
Arrest and interview
On 23 June 2021, SA attended Broadmeadows Police Station and provided statements in relation to both incidents that had occurred with Adrian H. That same day at approximately 11:30am, police attended the Broadmeadows address, and Adrian H was arrested by First Constable Healy. He was taken to Broadmeadows Police Station and interviewed. He admitted to returning to the Dallas address to collect his car, phone and wallet, after the FVSN was issued. It is noted that the details of complaint founding the safety notice, drawn from the brief account given to police by SA that day do not refer to choking. When questioned by police about non-compliance with the safety notice, he explained that he was aware he was not allowed to return to that address, but that he had no other way of getting his belongings. He was charged and remanded for both incidents. When asked during the hearing if the issue of the applicant being able to collect his car and other items was discussed with Adrian H when he left the police station the previous day, First Constable Price said it was not discussed.
Sharlene S declined to provide a witness statement to police. In evidence before the Court she explained that she suffers from memory issues due to a previous stroke.
The applicant’s personal circumstances and criminal/bail history
The applicant was born 15 December 1991. He is 29 years old.
Adrian H has 3 siblings, being the complainant SA and two younger brothers aged 14 and 13. He gave evidence that his mother died in his arms after battling a range of conditions including epilepsy, emphysema, heart failure and organ failure. His step-father died on 14 January 2021. The applicant told the Court he regarded his step-father as his father, and that he does not have a relationship with his biological father. His mother and father had each asked him to take on the care of his younger brothers after their death. The applicant was in the process of applying to Department of Fairness, Families and Housing (‘DFFS’) to make arrangements to prepare for taking on his brothers when he was arrested. He had also been in the process of clearing possessions out of the family home so that DFFH could finalise the lease.
It appears that the applicant’s younger brothers currently reside with their aunt Irene R. She is the sister of the applicant’s mother. The complainant stays there from time to time, although she does not have a fixed address at the current time. The applicant says he gets on well with all of his aunties, including Aunty Sharlene S who is like a second mother to him Aunt Irene R and aunt Tracey S. He is confident that if granted bail he could arrange to see his brothers away from aunt Irene’s address. He would continue to pursue arrangements to prepare to apply for custody of his brothers. This would include arranging appropriate accommodation through DFFH and he would be required to produce drug testing results for this to support his suitability.
Prior history
He has no other history of family violence or other violent offending, aside from an attempted armed robbery charge as a 19 year old, for which he was placed on probation by the Broadmeadows’ Children’s Court.
He has otherwise received fines for most of his offences, some without conviction. On 20 December 2017, he was placed on a six month community corrections order (‘CCO’) for drug possession charges (methylamphetamine and heroin).[6] That CCO had treatment and rehabilitation conditions directed at addressing his drug use and dependency, as well as conditions requiring him to engage in offender behaviour program. It appears he breached that order, having been found guilty of a contravention (by non-compliance) on 11 January 2019, though the CCO was simply confirmed and no further penalty imposed. On 17 April 2018, the applicant was released, with conviction, on an eight month adjourned undertaking for two further drug possession charges. He complied with that undertaking. Most recently, also on 11 January 2019, the applicant was convicted of driving a vehicle as a learner driver without an experienced driver and possessing heroin. He was released on an adjourned undertaking.
[6]That day, he was also fined, with conviction, $500.00 for driving as a learner with a supervising driver and without displaying his L plates.
Family Violence Intervention Orders
Adrian H is the respondent to two active family violence intervention orders (‘FVIVO’).
There is a final FVIVO in place for the protection of his current girlfriend Alice C. That order was made on 12 May 2021 and does not prevent contact between Adrian H and Alice C, but does prohibit Adrian H from committing family violence against Alice C, damaging or threatening to damage her property, or getting anyone else to do any of the above. The order was taken out by police although no criminal offences were alleged to have led to the order. That order expires on 11 May 2022.
There is also a current interim FVIVO in place against Adrian H for SA’s protection. That order was made on 28 June 2021. It has full no-contact conditions, and will remain in place until further order. The order has been served on Adrian H in custody
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’).[7] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.[8]
[7]The Act, s 1B(2).
[8]The Act, ss 1B(1)(a) and 1B(1)(b).
The parties agree that the applicant is prima facie entitled to bail, unless the respondent discharges the burden of establishing a risk that if released on bail, Adrian H would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.[9]
[9]The Act, ss 4D(1)(b), (2).
Under s 4E(3) of the Act, the Court is directed to take into account the ‘surrounding circumstances’. The Court is also directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
Family violence risks
In accordance with s 5AAA(1), because the applicant is charged with a family violence offence,[10] the Court must make enquiries of the prosecutor as to whether there is a FVIO, FVSN, and or a recognised DVO in force against the applicant. As outlined above, I am informed by the respondent that there are current FVIOs in place for the protection of Alice C and SA.
[10]As defined in the Act at s 3(a). The Healy charge is a family violence offence, given it is laid under section 37(2) of the Family Violence Protection Act (2008).
Pursuant to s 5AAAA(2), in deciding whether to grant bail, I must also consider the following:
(a) Whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and
(b) whether that risk could be mitigated by—
(vi) the imposition of a condition; or
(vii) the making of a family violence intervention order.
Respondent’s contentions in opposition to bail
Given the applicant is prima facie entitled to bail unless the respondent demonstrates he poses an unacceptable risk of engaging in any of the conduct described at s 4E(1) of the Act, it is convenient to address the respondent’s contentions in opposition to bail first.
While the respondent raised several matters in opposition to bail in their written material, at the oral hearing, Mr Jassar’s ultimate position was that the respondent did not oppose bail if there were very strict conditions put in place . Mr Jassar noted previous concerns raised by the Informant Price regarding the proposed bail address of aunt, Sharlene S., but after Sharlene S. and the applicant gave evidence the respondent did not maintain opposition to bail.
For completeness, the Court notes the following points raised by the Informant on the question of risk, which have informed the imposition of the conditions of bail, while noting the respondent did not ultimately oppose bail.
The respondent originally opposed bail on the basis that Adrian H posed an unacceptable risk of:
(a) Endangering the safety or welfare of any person, specifically SA, because he and SA had a common interest in attending the Broadmeadows’ address, and in light of SA’s stated concern for her safety.[11] SA has told First Constable Price that she loves her brother, but fears for hers and her family’s safety if he is released, because his alleged offending behaviour was out of character.[12] Regarding the Price charges, the respondent submitted that it was a serious example of family violence, in circumstances where there are visible injuries to the complainant, allegations of choking and kicking.[13] The Healy charge was initially described as a blatant breach of the FVSN.
(b)The respondent submitted that Adrian H presents an increased risk of family violence.[14] The respondent made reference to the Multi-Agency Risk Assessment Management Framework noting that the allegation of choking gives rise to a heightened risk of family violence reoccurring, thereby increasing the risk to the safety of the complainant
(c)The respondent referred to a risk of the applicant committing an offence while on bail, in light of his two prior charges of failing to answer bail,[15] the prior charge of contravening a FVIVO in 2013, and contravening his 2017 CCO, which was dealt with in 2019.[16]
(d)Interfering with a witness or otherwise obstructing the course of justice. The respondent noted that Sharlene S was the only person to see the alleged offending against SA and there is a risk that they would discuss the case together.[17]
(e)Failing to answer bail or comply with conditions of bail. Reference was made to previous warrants executed at Sharlene S’s address, which resulted in possession charges against the applicant in 2014, 2015 and 2017. It was also submitted Sharlene S could not control Adrian H, as she was unable to stop him from assaulting SA.[18]
[11]Informant’s Report, [32(a)].
[12]Informant’s Report, [30].
[13]Submissions on Behalf of the Respondent dated 14 July 2021 (‘Respondent’s Written Submissions’).
[14]Respondent’s Written Submissions, [34].
[15]Being his appearances in the Broadmeadows’ Magistrates’ Court on 15 March and 17 April 2018, Informant’s Report, [32(b)].
[16]Respondent’s Written Submissions, [14]-[17].
[17]Respondent’s Written Submissions, [28]-[29].
[18]Respondent’s Written Submissions, [28]-[29].
The respondent conceded however that with CISP support and strict conditions, this could reduce the risk to an acceptable level.[19]
[19]Respondent’s Written Submissions, [37].
Applicant’s contentions in support of bail
The applicant submitted that he ought to be granted bail because the respondent had not demonstrated that the applicant poses an unacceptable risk.[20] The applicant’s representatives submitted as follows:
(a)The applicant does not pose an unacceptable risk of endangering the safety or welfare of SA. Any such risk is addressed through the interim FVIVO in place for her protection. The applicant understands there would be a ‘profound consequence’ if he approached SA in any way, or got others to do so on his behalf.[21] Further, this is his first time in custody, and his period on remand has had a ‘salutary’ effect on him.[22] The applicant’s representatives also referred to the minimal history of violent offending.[23]
(b)The applicant does not pose an unacceptable risk of failing to answer bail because he has been assessed as suitable for case management through the Court Integrated Services Program (‘CISP’),[24] and has expressed enthusiasm and willingness to engage in the services they recommend, in particular grief counselling and drug treatment. A CISP appointment has been arranged for the applicant for 19 July 2021, should he be bailed.[25] The applicant had already joined a waitlist for an anger management program and expressed he would follow that up when released and liaise with his CISP case manager accordingly. If granted bail, CISP will refer him to Australian Community Support Organisation (‘ACSO’), for an assessment for alcohol and other drugs treatment, and will discuss mental health and grief counselling with him. Adrian H told Ms Burger from CISP, during his assessment on 15 July 2021, that the current alleged incidents occurred the day after his mother’s funeral, and in the context of SA telling him that he had ‘let’ their mother die.
(c)The applicant proposed to live with Sharlene S in Meadow Heights should he be granted bail. The applicant’s representatives acknowledged that police have located drugs at that premises before However, they submitted that any concerns about the appropriateness of this residence can be addressed through the support of CISP, which will assist Adrian H to confront any underlying substance abuse issues. Further, they submit that the Meadow Heights address is, in effect, Adrian H’s family home. Adrian H lived at the Meadow Heights address with Sharlene S between the ages of 12 and 29 years old and so it is a stable and supportive family environment.
(d)Regarding whether the applicant poses a risk of interfering with a witness, namely Sharlene S, the applicant’s representatives noted Sharlene S has not made a witness statement, but at any event any such risk could be addressed through the imposition of a condition prohibiting Adrian H from discussing the case with Sharlene H.
[20]In their written submissions entitled ‘Outline of Written Submissions in Support of Bail Application’ dated 15 July 2021 (‘Applicant’s Written Submissions’), and in oral submissions on 16 July 2021.
[21]Applicant’s Written Submissions, [3(a)].
[22]Affidavit in Support, [17]. Report of Samantha Burger dated 15 July 2021 (‘CISP Report’).
[23]Relevant to the Act s 3AAA(1)(c).
[24]Applicant’s Written Submissions, [[3(b)]; said also to be relevant to the Act s 3AAA(1)(h)(i).
[25]CISP Report, 2.
In addition to the above, the applicant submitted that any risk could be rendered acceptable by the imposition of strict bail conditions such as: static residence with his aunt, compliance with the existing FVIVO, compliance with CISP, no contact with witnesses for the prosecution (save for the informant), and any other conditions the Court deems necessary.[26]
[26]Affidavit in Support, [18].
In addition to the applicant’s unique personal circumstances (especially the loss of his parents within a few months of one another),[27] the applicant’s solicitor also drew the court’s attention to fact that the applicant will face delays in having his matter finalised. Currently, the applicant is contesting the charges against him. On current estimates, Broadmeadows Magistrates’ Court does not have capacity to hear a contest mention before September this year, and could not likely hear a contested hearing until four to six months after that date. As such, it is unlikely the matter would resolve this year if it remains contested. Connected to this, the applicant submitted that his time on remand could exceed any ultimate sentence imposed.[28]
[27]Relevant to the Act s 3AAA(1)(g).
[28]Relevant to the Act s 3AAA(1)(l).
Analysis
Does the applicant pose an unacceptable risk of engaging in any of the conduct set out at s 4E(1) of the Act?
I am satisfied that the risk posed by the applicant can be made acceptable with strict conditions in place, having regard to the evidence I have heard from Informant Price, Sharlene S, and the applicant. In particular, I was persuaded that the applicant has a degree of insight into the seriousness of the charges and the importance of bail and FVIO conditions if granted bail
There are triable issues if Informant Price’s matter is contested but there is likely to be a delay for a contest at Broadmeadows Court of at least several months. Regarding Informant Healy’s matter, I leave open the possibility that there was some misunderstanding on the part of the applicant as to how the applicant should go about collecting his car and personal items from the Dallas address.
Regarding the current charges the respondent conceded there was a prospect of the applicant spending longer on remand than would be imposed way of sentence. This was a sensible concession in light of the limited history of prior violent offending and the extenuating circumstances that led to the events which are the subject of the allegations. The incident between the applicant and SA appears to have been triggered in aftermath of Michele H’s funeral and the applicant has expressed some remorse to the author of the CISP report for his behaviour towards SA. The time he has spent on remand, it being his first experience of prison, appears to have had a salutary effect on him. It also appears that despite the applicant’s past drug abuse history he claims to have recently reduced his drug use, and drug use did not form a part of the alleged offending.
The respondent was initially concerned about the applicant residing with Sharlene S at the Westmeadows address due to the fact that she witnessed the incident on 22 June 2021 and may be called by the prosecution if the matter proceeds to contest in the Magistrates’ Court, despite Sharlene S not having provided a police statement. However, the Westmeadows address is regarded by the applicant as having been his home since he was 12, and he has a very close relationship with Sharlene S. In these circumstances the address appears the most practical bail address at the current time.
I accept the evidence of the applicant that he has family support and friends available to help him transition back into the community safely.
I am satisfied from the evidence of the applicant and Sharlene S that they each understand that they must not discuss the incidents that occurred on 22 June 2021.
I am satisfied that the applicant, having been served with the FVIVO protecting his sister SA understands his obligations in that regard. I note that the conditions I propose to put in place will enable informant Price to monitor the applicant’s compliance with bail. Informant Price also stated that he could maintain contact with the complainant SA and monitor her situation to some degree. The current FVIVO in place for the protection of SA should reinforce the importance of the applicant keeping away from SA or from any premises where she is residing.
I consider that future risks of family violence can be addressed and reduced with counselling support and CISP support of the kind foreshadowed in the CISP report
The applicant is keen to obtain custody of his younger brothers and appears willing to work towards that goal with DFFH, and this should provide an incentive for him to ensure that his behaviour does not lead to a negative assessment by DFFH.
In all of the abovementioned circumstances I am satisfied that bail should be granted on the conditions I have foreshadowed with the parties.
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