Re AJ (Second bail application)
[2021] VSC 772
•21 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0324
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by AJ | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2021 |
DATE OF JUDGMENT: | 21 May 2021 |
CASE MAY BE CITED AS: | Re AJ (Second bail application) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 772 |
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CRIMINAL LAW – Bail – Second Application – Applicant charged with possess a firearm in breach of firearm prohibition order and related charges – Lengthy criminal history – Significant drug history and mental health concerns – Proposed bail to residential rehabilitation facility along with substantial surety – Significant delay until trial – Exceptional circumstances established – Unacceptable risk not established – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sala | Theo Magazis & Associates |
| For the Respondent | Mr T Crouch | Office of Public Prosecutions |
HER HONOUR:
Introduction
The applicant was arrested on 11 November 2020 by Detective Senior Constable Zahra (‘D/S/C Zahra’). On 21 May 2021, I granted AJ bail in relation to the matters where D/S/C Zahra is the informant.
That grant of bail commenced on 25 May 2021. My reasons for that decision are publicly available (‘first ruling’).[1] A core condition of AJ’s bail was that he was to reside at a residential rehabilitation facility, The Cottage, and comply with their drug rehabilitation program.
[1][2021] VSC 291.
On 23 June 2021, the Director of Public Prosecutions filed an application to revoke AJ’s bail after AJ was re-arrested and charged with further offending by D/S/C Zahra relating to alleged possession of a drug of dependence and associated charges for breaching his bail. He was subsequently exited from the rehabilitation program and re-remanded. I heard that revocation application on 1 July 2021. The application was ultimately unopposed and I revoked AJ’s bail that day. My reasons for revoking bail are also publicly available (‘second ruling’).[2]
[2][2021] VSC 395.
On 15 November 2021, a further application for bail was filed. AJ sought bail on both sets of charges where D/S/C Zahra is the Informant on the basis that there are new facts and circumstances, including that The Cottage were once again content to have AJ in their program and that a bed would become available for him in November 2021. The application was supported by an Affidavit.[3]
[3]Sworn by Theo Magazis on 15 November 2021 (‘Affidavit in Support’).
On 17 November 2021, the applicant filed a further Affidavit, which explained the charges that were laid as a result of the arrest on 23 June 2021 were withdrawn by the prosecution at the Contest Mention hearing on 16 November 2021. In that affidavit, AJ’s solicitor deposed that he had provided the CCTV footage and relevant still images from it to the informant in August 2021, but unfortunately that evidence was not properly evaluated by the prosecution until the Contest Mention hearing, resulting ultimately in their decision to withdraw the charges against AJ.
The Respondent filed an Affidavit in Response on 19 November 2021,[4] indicating the application was opposed on the basis that AJ has not established that exceptional circumstances exist to justify a grant of bail, and that he poses an unacceptable risk of committing an offence whilst on bail and endangering the safety and welfare of any person.
[4]Affirmed by Ashleigh Kate Ruberto on 19 November 2021 (‘Affidavit in Response’).
Therefore, on this application, AJ is in a similar position to the time of his first application for bail before me on 21 May 2021. Accordingly, this ruling should be read together with my first two decisions in relation to AJ.
The charges AJ is facing are as follows:
(a) Charge 1: Possess a firearm at Westmeadows on 11 November 2020 to whom a firearm prohibition order applied, contrary to Section 112B of the Firearms Act 1996 (Vic) ('Firearms Act');
(b) Charge 2: Prohibited person possess firearm at Westmeadows on 11 November 2020 contrary to Section 5(1) of the Firearms Act;
(c) Charge 3: Possess cartridge ammunition at Westmeadows on 11 November 2020 whilst not the holder of a licence under the Firearms Act, or permit under Section 58A, contrary to Section 124(1) of the Firearms Act;
(d) Charge 4: Possess a drug of dependence, namely cannabis, at Westmeadows on 11 November 2020 contrary to Section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’);
(e) Charge 6: Possess a drug of dependence, namely somatropin on 11 November 2020, contrary to Section 73 of the DPCS Act; and
(f) Charge 7: Unauthorised possession of a poison, namely Tamoxifen and Profasi.
The parties also filed written submissions in support of their respective positions.[5]
[5]For the Applicant: ‘Brief Submission in Support of the Application for Bail,’ dated 22 November 2021 (‘Applicant Submissions’); For the Respondent: ‘Respondent’s Written Outline of Submissions’ dated 22 November 2021 (‘Respondent Submissions’).
Summary of Alleged Offending
I refer to and adopt the summary of the facts relevant to the 11 November 2020 charges set out in my first ruling as follows:
On 11 November 2020, shortly after 9:00am, a search warrant was executed by police on the applicant's home address where he lived with his mother and brother ('the Westmeadows address') At approximately 9:45am, in the presence of the applicant, police found some car keys on the floor next to his bed. The car keys were used to open a BMW I8 coupe (BCG-439) that was parked in the driveway immediately outside the front door of the address. On the front passenger seat of the car, police located a Louis Vuitton satchel. In that satchel, was a black zip up case, containing a a[sic] silver .32 calibre Colt revolver ('the revolver'), loaded with six ammunition rounds (from that revolver). The satchel, the case, the revolver and the ammunition were all seized. Cannabis and diverse steroid related substances were also seized during the search of the applicant's garage. Police also searched another BMW vehicle parked in the driveway (white, BIQ-286), and located a mobile phone. Other evidentiary items seized by police at the premises included certain mobile phones and a hard drive relating to a CCTV camera.
The applicant was arrested and charged in relation to the firearm and other substances seized by police. At the time of his arrest he was prohibited from possessing firearms. He had also been served with a firearms prohibition notice on 4 April 2019. He did not have a licence or permit to possess the ammunition within the revolver.[6]
[…]
Facts relevant to the Zahra Charges
CCTV Evidence
7CCTV footage seized from the applicant’s Westmeadows address showed the following events occurring on 10 and 11 November 2020:
(a)At 9:45pm on 10 November 2020 the BMW (BCG-439) can be seen to arrive at the Westmeadows address;
(b)At approximately 9:56pm the applicant is visible entering the front door of the property;
(c)The BMW remained at the address until police arrived at approximately 8:00am on 11 November 2020.
[6]Re AJ [2021] VSC 291, [2]–[3].
Fingerprint and DNA Evidence
8Fingerprint examination of the BMW, (BCG-439) where the revolver was located, revealed the likelihood of a connection to the applicant on the following surfaces:
(a) External driver’s door – left thumb of the applicant; and
(b) External driver’s door window – right thumb of the applicant.
9DNA swabs were taken from the interior of the same vehicle, and from the revolver and ammunition.
10The swab taken from the trigger/trigger guard of the revolver revealed a mixed DNA profile that did not exclude the accused. The swab taken from the grip showed a mixed DNA profile which was regarded as too complex for further interpretation.
11Due to a miscommunication, the swab from the ammunition has not been tested yet and results are still pending on that.[7]
12The satchel within which the revolver was located was not swabbed. Further, no swabs were taken from the passenger side of the vehicle, nor was it examined for fingerprints.[8]
[7]Testing performed on the swab has now been found to be inconclusive.
[8]Re AJ [2021] VSC 291, [8]–[12].
The Zahra charges are next listed for a Directions Hearing on 9 February 2022.
Outstanding matters
At the time of the original grant of bail, AJ had a number of matters outstanding. Three of those matters were finalised on 13 September 2021 (where the Informants were West, Hanson and Maloney). AJ pleaded guilty to the charges and was sentenced to a total effective sentence of two months’ imprisonment. He should have completed that sentence on 13 November 2021.
There is one other matter that remains outstanding, where Constable Curtis Shine is the Informant. I refer to and adopt my summary of that offending set out in my first ruling as follows:
He was also on summons for charges laid by Constable Curtis Shine relating to assaults on his then girlfriend CF on 24 January 2020; intentionally cause injury, recklessly cause injury, unlawful assault (two charges) and assault by kicking. The allegations are that the applicant and CF were in an intimate relationship for six months. He attended her home that day unexpectedly to speak with her. She invited him in and they spoke for half an hour. An argument arose and during the argument, the applicant grabbed her phone and punched her in the face when she tried to take it back. She dropped to the ground and was kicked by the applicant before he picked up a knife from the bench and motioned towards her in a threatening way. The applicant then noticed CF was bleeding, and got an ice pack for her, he then wiped up her blood and left. The complainant reported the incident to police, but declined their offer to take her to hospital. The matter is listed for a contest mention on 17 August 2021 at the Broadmeadows Magistrates’ Court. Counsel for the respondent was unable to provide further information about the current status of this matter on inquiry during the bail hearing, except that it was still proceeding.[9]
[9]Re AJ [2021] VSC 291, [17(b)].
That matter is next listed at the Broadmeadows Magistrates’ Court on 25 November 2021 for Contest Mention.
Also at the time of the current charges, AJ was subject to proceedings relating to contravening a Community Corrections Order (‘CCO’). That CCO was imposed on him on 24 January 2019 for offending that occurred in 2017. I summarised that offending in my first ruling, and I adopt that summary, which is as follows:
The 2017 charges included prohibited person possess firearm, make threat to kill, recklessly cause injury, commit indictable offence on bail, and possess cartridge ammunition without a licence or permit. The charges relate to incidents in January and February 2017, including a serious event involving a former girlfriend, LK and her son. On that occasion, the applicant is alleged to have been armed with a handgun and to have threatened LK and her infant son DK whilst wielding the handgun in the garage of the Westmeadows address. The applicant's father intervened and disarmed the applicant. LK (together with her young son DK) obtained a Family Violence Intervention Order (FVIO) against the applicant.
The applicant commenced the CCO upon his release from prison on 8 March 2019. He remained at liberty on the CCO, apart from brief period of remand for charges for possession of drugs (four charges ) and breach alcohol interlock condition which placed him in custody on 28 March 2020 and led to a 14 day sentence (released on 8 April 2020).[10]
[10]Re AJ [2021] VSC 291, [14]–[15].
Those proceedings were also resolved on 13 September 2021. The breach was found proven and the CCO was confirmed.
Applicable law
In applying and interpreting the Bail Act 1977 (Vic) (‘The Act’), the Court must have regard to the guiding principles set out in s 1B of the Act.[11] 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.[12]
[11]The Act, s 1B(2).
[12]The Act, ss 1B(1)(a) and 1B(1)(b).
There is some competing authority on whether applicants are required to show new facts and circumstances in subsequent bail applications before this Court pursuant to s 18AA.[13] However, in the event AJ is required to do so, I am satisfied that the fact of the charges laid against him in June 2021 have been withdrawn, and the fact that a bed is available again for the applicant, are sufficient to meet that threshold to allow this Court to hear and determine a further bail application.
[13]See for example Re Foxwell (No 2) [2014] VSC 145, Re Al-Jinavo [2017] VSC 413, Re Abdulrahim [2017] VSC 411.
Section 4AA of the Act sets out the two-step test that applies to the Court’s consideration of an application for bail, and which applies to this application.
Step 1 – the ‘exceptional circumstances’ test
As with the previous application for bail, the parties agree the Court must refuse bail unless the applicant can satisfy the Court that there are ‘exceptional circumstances’ that justify a grant of bail, because he is accused of committing Schedule 2 offences[14] while subject to a 24-month CCO imposed for other Schedule 2 offences.[15]
[14]Namely, indictable offences allegedly committed by the applicant in the matter of informant Zahra while he was subject to two separate summons to answer charges for indictable offences in the matters of informants West and Shine (sch 2 item 1(b) of the Act).
[15]Pursuant to s 4AA(2)(c)(iv). The CCO was imposed for several offences, including making a threat to kill that was also a family violence offence (sch 2 item 7 of the Act), and committing an indictable offence whilst on bail (sch 2 item 30 of the Act). See also sections 4AA(2)(c)(iv), 4A(1A) and 4A(2) of the Act.
In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed by s 3AAA(1) of the Act.[16]
[16]Ibid s 4A(3).
Step 2 – the ‘unacceptable risk’ test
Even if the Court is satisfied that exceptional circumstances exist to justify a grant of bail, the Court must apply the unacceptable risk test.[17] That is, bail must be refused if the Court is satisfied by the respondent[18] that there is an unacceptable risk that the applicant would, if released on bail:
[17]Section 4D(1)(a) of the Act.
[18]Ibid s 4E(2).
(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.[19]
[19]Ibid s 4E(1).
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[20]
[20]Ibid s 4E(3).
Family Violence Factors
Both parties agree that the present charges upon which bail is sought do not relate to family violence. However, the Affidavit in Response confirms that there are two active FVIO’s currently in place against the applicant, as follows:
(a) a final FVIO with no-contact conditions was issued at the Broadmeadows Magistrates’ Court on 14 December 2018 naming the applicant’s ex-partner, LK and her son, DK, as protected persons. That order expires on 14 December 2021; and
(b) a final FVIO with no-contact conditions was issued at the Broadmeadows Magistrates’ Court on 5 February 2020 naming CF as the protected person. That order expires on 4 February 2022.
Applicant’s personal circumstances and criminal/bail history
AJ is now 35 years old. I refer to and adopt my summary of AJ’s personal history and circumstances set out in my first ruling as follows:
The applicant was born in Iraq, he is one of five children. Being from an Assyrian Christian background, his family were a persecuted minority. During the applicant's early childhood, the family were in a refugee camp in Iraq for about 18 months, before migrating to Australia. The applicant's father was violent towards him when he was growing up and when he disclosed sexual abuse by his paternal uncle at the age of 13, he was assaulted by his father. The applicant went on to develop issues with anger in his adolescence.
The applicant commenced smoking cannabis at age 16 and has been daily user of methamphetamine for the past 13 years. He has spent much of the last eight years in prison. He has told Ms. Maria Hutchinson, CEO at The Cottage in Shepparton (a residential drug rehabilitation facility), who assessed him for a placement there, that typically he was using the drug replacement, buprenorphine, when in custody and would return to using drugs within about a month after his release. When not in prison, he ordinarily resides with his mother at her Westmeadows address.
The applicant completed year 10 at school and did six months of a panel beating apprenticeship before working in construction. The applicant's work history is limited due to frequent periods in custody throughout his adult life, but he recently worked part time at his brother's (Emmanuel) plumbing business before being arrested on the Zahra charges.
The applicant's brother, Emmanuel, proposes to support the applicant's drug rehabilitation and take him on full time learning the plumbing trade when the applicant is released into the community.[21]
[21]Re AJ [2021] VSC 291, [18]–[21].
Since his bail was revoked, AJ has been assessed again by Ms Maria Hutchinson, Addiction Counsellor at The Cottage. Ms Hutchison has found AJ suitable to return to The Cottage to undertake their 16 week residential program. A bed is available at The Cottage for AJ from 27 November 2021.
AJ’s brother has once again offered a surety, though this time a lesser amount is available: $50,000. This decrease in the surety is as a result of a change in Emmanuel’s financial circumstances due to a re-financing of a property rather than any change in his level of support for AJ. Emmanuel is also still willing to employ AJ at his plumbing business, with the idea being that AJ would be able to commence employment after completing The Cottage’s program.
I also refer to and adopt the following summary of AJ’s criminal and bail history from my first ruling:
22The applicant’s criminal history includes a concerning number of drug offences, driving offences, assaults and firearm offences. Firearms offending scontributed[sic] to two previous sentences of imprisonment. As already mentioned, a firearm was brandished in the offending in 2017 against LK and DK, at which time he was a prohibited person in possession of a firearm. Also in 2014, he was sentenced to a term of imprisonment for possessing a firearm as a prohibited person, along with other dishonesty and driving offences.[22]
[22]Re AJ [2021] VSC 291, [22].
In addition to the above, as already mentioned, in September this year, the applicant has now been sentenced for the offending that occurred in August 2019 and August 2020. Those charges, including one charge for theft of a motor vehicle, and one of driving without an interlock device fitted.
Applicant’s contentions in favour of bail
The applicant is seeking to be bailed to reside at The Cottage, with the intention that provided he successfully completes that 16 week program, he would seek a variation of bail to reside back at the family home. The proposed bail conditions would allow for this to occur provided the informant consents.
The applicant relies on a combination of factors to establish exceptional circumstances justifying a grant of bail:
(a) Delay: The applicant notes that AJ was arrested for the 2020 charges on 11 November 2020 and that there will be lengthy delays in this matter being finalised. At this stage, it appears AJ will not face trial for those charges until the end of 2022 or Term 1 or 2 of 2023. There is currently no trial date fixed for those charges.
(b) Strength of the prosecution case: The applicant relied on the earlier circumstances grounding exceptional circumstances wherein it was conceded that the charges are serious, but argued that there are triable issues in the case. For example, the fact that the firearm that was found was in a bag that did not contain any identification of the accused inside, and that the vehicle that the bag was found in was not registered to the accused, and it could not be said how long the accused was in the vehicle before returning home nor whether anyone else was in the vehicle beforehand.
(c) Conditions in custody: While conditions in custody have improved somewhat, the Applicant drew the Court’s attention to the conditions AJ has endured in custody to date. Those conditions have been more difficult and onerous due to COVID-19. Currently, AJ’s access to programs and visits is still limited.
(d) Availability of residential rehabilitation at The Cottage: As with the previous application, the program at The Cottage is strict. AJ would be removed from the general community, subject to strict rules. The fact of AJ having been exited from the program in June 2021 after the alleged further offending was said to demonstrate The Cottage’s zero tolerance approach to breaches of their rules. The Cottage’s program would assist to address his long-standing substance abuse issues. Since he was exited from The Cottage program on 17 June 2021, AJ has maintained contact with its staff and has expressed a strong desire to return to complete the 16-week residential rehabilitation program offered at its Shepparton facility. In a letter authored by addiction counsellor and CEO of The Cottage, Maria Hutchison, dated 7 October 2021,[23] Ms Hutchison advises that she conducted an informal assessment with AJ on 5 October 2021 to determine his suitability to return to the program. During that assessment, AJ explained that he had a new awareness that it was not simply his actions that have resulted in his various encounters with the criminal justice system, but also his development of a ‘jail mentality’ that has prevented him from making necessary changes in his life. AJ described an understanding that he needs help to change, and expressed a willingness to take on the advice and support offered by The Cottage if permitted to return there. Ms Hutchison assesses AJ as suitable to return to The Cottage program, stating in her letter:
[23]Affidavit in support, Exhibit TM-19.
there has been a shift and deepening in [AJ’s] awareness and his willingness to engage in treatment. I believe that his experience with The Cottage and the evidence that old behaviour will not be tolerated may prove to be the turning point for him.[24]
[24]Ibid.
(e) Aaron Gilhooley, General Manager, of The Cottage gave evidence at the hearing. He confirmed a bed would be available for AJ as early as 27 November 2021, which was a few days earlier than first expected. Mr Gilhooley confirmed that he had known the applicant since his arrival at The Cottage in May 2021. He spoke of how the applicant had attended The Cottage with a positive outlook. During the short period the applicant was at The Cottage earlier in the year, AJ was reasonably consistent in his participation. AJ had some issues with his sleep, which is quite common with people attending The Cottage from custody, and they were exploring medication for that issue. Mr Gilhooley confirmed he was content to have AJ back at The Cottage. He last spoke to AJ in July 2021, and AJ spoke openly with Mr Gilhooley about his belief that the Suboxone was not his.
(f) Mr Gilhooley testified that The Cottage reports any breaches of bail that arise at their facility almost immediately. He confirmed that the approach taken earlier in the year when Suboxone was found in AJ’s room was reflective of that standard process. Further, Mr Gilhooley confirmed that AJ had personally experienced The Cottage’s zero tolerance policy towards drug use, having already been exited from the program once. That process is essential to maintain the integrity of The Cottage’s program.
(g) Regarding AJ’s discharge from The Cottage earlier this year, Mr Gilhooley told the Court he personally did not have any knowledge of AJ having appeared drug affected, although a letter from The Cottage raised this concern when AJ was exited from the program. At the time, Mr Gilhooley recalled that AJ had been discussing his medications with their resident Professor, but he had no further information about that. Mr Gilhooley confirmed that The Cottage performed urine drug screens two to three times per week, and no illicit drugs were detected in any of the tests that AJ completed while he was there earlier this year.
(h) Mr Gilhooley confirmed that staff from The Cottage could collect AJ from custody and take him directly to The Cottage as early as Saturday, 27 November 2021.
(i) Strong family support and ties to the jurisdiction: The Applicant has strong support from his family. His mother is still willing to have him return to live with her in the future and he has a stable residence with her in Westmeadows if he successfully completes The Cottage program. The applicant’s brother Emmanuel also remains very supportive of AJ, and remains willing to offer him employment and a surety, as already mentioned.
(j) AJ’s brother Emmanuel gave evidence at the hearing. Emmanuel had contact with AJ when he was in The Cottage earlier this year. He noticed his brother was not in a positive frame of mind in custody, but that changed when he went to The Cottage. AJ had more opportunities to face his issues within himself and to improve when at The Cottage. Emmanuel gave evidence that AJ was upset after he was exited from The Cottage and quite devastated to have lost the opportunity to be there. AJ was adamant in maintaining to Emmanuel that he was not involved in the alleged incident with the tissue box. Emmanuel confirmed he understood the risk of putting up a surety and that were there to be any breach of bail, he would lose the surety. He was confident to provide the surety because AJ was on the road to recovery and so he would not breach his bail. He had seen a dramatic improvement in AJ within the last year and a half, both in custody and in The Cottage, and he had no doubt that he would perform well in The Cottage program. Emmanuel confirmed AJ was still in a relationship with a woman who he had commenced a relationship with shortly before the previous bail application.
(k) Emmanuel confirmed he and his siblings, and their mother, were very supportive of AJ. Emmanuel would offer AJ a job at his plumbing business after AJ completed The Cottage program, AJ having done some work for Emmanuel in the past. Emmanuel thought that AJ was capable of turning his life around.
The applicant concedes that AJ has a lengthy criminal history and relevant prior conditions, as well as a history of committing offences whilst on bail, whilst noting that the applicant has also successfully complied with earlier bail undertakings.
The applicant submits that he does not pose an unacceptable risk because of the availability of residential rehabilitation, strong family support and ties to the jurisdiction and the significant surety on offer from his brother.
The applicant submitted AJ was willing to comply with any conditions deemed appropriate and necessary by the Court.
At the hearing, Mr Sala submitted that The Cottage had demonstrated their ability and willingness to supervise bail through their actions earlier this year. Further, the incident in June confirmed AJ’s own increasing maturity: He did his best to explain to Mr Gilhooley what happened, allowed the issue to run its course through the Courts in the appropriate way, and took the process seriously. Mr Sala indicated this behaviour appeared in contrast to AJ’s earlier patterns of behaviour.
Regarding the concern regarding AJ’s access to Suboxone or his having been possibly drug affected at The Cottage earlier this year, Mr Sala submitted there were competing inferences available about these issues, and he referred to Mr Gilhooley’s evidence about this. Mr Sala submitted that AJ should have the chance to continue to rehabilitate himself and any risk he presents can be ameliorated to an acceptable level.
Respondent’s contentions in opposition to bail
The Respondent opposes bail on the basis that AJ has failed to show exceptional circumstances justifying bail and that AJ poses an unacceptable risk of:
(a) committing an offence whilst on bail; and/or
(b) endangering the safety or welfare of any person having.
At the hearing, Mr Crouch referred to and adopted his written submissions with respect to exceptional circumstances, but indicated that the principal issue on this application was risk.
Mr Crouch highlighted the issue of the Suboxone having been found at The Cottage in June. He also highlighted AJ’s history of firearms offending, and the current charges relating to firearms that were cause for concern.
Analysis
Has the applicant established that there are exceptional circumstances that justify a grant of bail?
I consider it exceptional that the only reason the applicant is currently back in custody is because of charges that have now been withdrawn. I granted AJ bail on the Zahra charges in May of this year. His bail was revoked because of an allegation of further offending at The Cottage. Had it not been for those further charges, absent any other wrongdoing by him, AJ would likely still be on bail.
It is unfortunate that AJ’s first attempt at rehabilitation was interrupted. However, it is encouraging that despite this setback, AJ remains committed to engaging with The Cottage and pursuing rehabilitation. This tends in favour of his future prospects of rehabilitating himself and addressing the issues that appear to have been underlying his previous criminal offending. The experience of returning to custody has no doubt been very sobering for AJ. It will be up to him to make the most of the opportunity to re-engage at The Cottage.
I note the Respondent’s concern that The Cottage staff suspected AJ was drug affected prior to the Suboxone being found in his room, and held concern about the mere presence of Suboxone, regardless of who it belonged to. However, I have considered the evidence given by Mr Gilhooley about the cautious approach that was taken at the time and the fact The Cottage are now willing to accept AJ back in their program.
I have also taken into account the continuing issue of delay which may mean the applicant’s pre-trial detention could exceed any sentence imposed.
I have also taken into account the value for the community of AJ being successfully rehabilitated at The Cottage and the stringent residential and other conditions proposed in support of bail.
For all these reasons I consider that exceptional circumstances are met by the applicant.
Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 3E of the Act?
Through their approach to the further allegations against AJ in June 2021, The Cottage staff have demonstrated to this Court the integrity of their program by adopting a zero-tolerance approach to suspected breaches of their rules. They have also demonstrated their willingness to promptly notify the Informant of suspected breaches of bail. Accordingly, I am satisfied The Cottage will be able to appropriately supervise AJ if he is bailed to that facility. If he completes the program successfully that should stand him in good stead to return to the community.
Therefore, I am satisfied that conditions requiring AJ to reside at The Cottage until completion of the four month program and follow all lawful directions of their staff will ameliorate all the risk he poses of committing offences whilst on bail to an acceptable level. I also take account of the surety offered by AJ’s brother, which in combination with the other proposed bail conditions will ameliorate any risk that AJ will fail to answer his bail to an acceptable level. The respondent has not satisfied the Court as to unacceptable risk.
Therefore, bail will be granted on conditions similar to those in place prior to revocation.
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