Re Anderson
[2021] VSC 835
•15 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0341
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by BRADLEY ANDERSON |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2021 |
DATE OF JUDGMENT: | 15 December 2021 |
CASE MAY BE CITED AS: | Re Anderson |
MEDIUM NEUTRAL CITATION: | [2021] VSC 835 |
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CRIMINAL LAW – Application for bail – Schedule 2 offence, committing an indictable offence whilst on bail – Other charges of theft, arson, burglary and criminal damage – Whether compelling reason established – Whether unacceptable risk – Residential rehabilitation program proposed – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4AA, 4C, 4E, 18AC and 18AD.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Barreiro | Criminal Lawyers Geelong |
| For the Respondent | Mr P Kounnas | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail, and an application to vary bail, by Bradley Anderson (‘the applicant’).
Informant Fox matter
The applicant is facing trial on six charges of theft and two charges of arson (‘the Fox matter’). The informant on these charges is Senior Constable Fox.
Between 25 and 26 March 2021, the applicant and co-accused, Andrew Turner, stole a vehicle from an address in Newcomb, valued at $21,000. They then travelled in the stolen vehicle to commit a series of thefts over the course of the next two days, including two motorbikes, a trailer, and other items.
The applicant and co-accused then set fires in two streets in North Geelong, causing damage to a vehicle, trees, and residential fences. In one of the streets, police found a stolen fuel container.
Shortly after, police sighted the applicant and co-accused driving the stolen vehicle in Newtown, with the box trailer attached. The vehicle was travelling in residential streets at speed, which caused one of the motorbikes to fall from the trailer onto the road. When police attempted to intercept the applicant and co-accused, the co-accused rammed the stolen vehicle into a police car and fled on foot.
Police located the stolen box trailer, containing a KTM motorbike and motorbike stand. The stolen leaf blower, wallet, and cards were located within the vehicle, along with a mobile phone which was registered to the co-accused.
The co-accused was apprehended by police on 1 May 2020 and remanded in custody. He was granted bail on 3 May 2021.
Background
On 27 March 2020, the applicant was arrested and remanded in the Fox matter, and later granted bail at Geelong Magistrates’ Court on 16 June 2020.
On 9 March 2021, the applicant was arrested and bailed in the first Hammond matter, which alleged that on 14 August 2020, the applicant and two unknown co-offenders forced entry into a tobacconist in Norlane (‘the first Hammond matter’). Once inside, the applicant and co-offenders stole a large quantity of cigarettes, valued at $21,233.04. During the burglary, the applicant and co-offenders caused damage to a security shutter and two rear doors to the approximate value of $10,000.
On 19 July 2021, the applicant was committed to stand trial in the Fox matter.
On 17 August 2021, the applicant was charged on summons by Leading Senior Constable Mark Williamson with offences of driving whilst disqualified and exceeding the speed limit by not more than 35 kilometres per hour (‘the Williamson matter’). He remains on summons for this matter.
On 16 September 2021, the applicant was charged and remanded on the second Hammond matter. In respect of these charges it is alleged that between 29 July 2021 and 2 August 2021, the applicant and unknown co-offenders gained entry to a recently constructed residence in Norlane and stole a vanity benchtop and caused property damage (‘the second Hammond matter’). The total value of the stolen items and damage caused is estimated at $3,400.
Whilst on remand in this matter, the applicant was charged on summons by Constable Leishman with offences of acting in a manner prejudicial to the safety of a person in gaol and attempting to take contraband into a gaol (‘the Leishman matter’). He remains on summons for this matter.
The Fox matter is next listed for a directions hearing at the Geelong County Court on 15 December 2021, and all other outstanding matters are listed for mention at the Geelong Magistrates’ Court on 2 February 2022.
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 (‘the Act’).[1]
[1]Bail Act 1977 s 1B(2).
The applicant is required to show a compelling reason that justifies a grant of bail under s 4AA(3) of the Act as he is accused of a Schedule 2 offence. On this analysis, it follows that bail must be refused unless the Court is satisfied that a compelling reason exists that justifies the grant of bail.[2] 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.[3]
[2]Ibid ss 4C(1A)-(2).
[3]Ibid s 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test.[4] Bail must be refused if the respondent satisfies the Court that, if released on bail, the applicant poses a risk of engaging in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[5] In determining whether a risk is unacceptable, the Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[6]
[4]Ibid s 4D(1)(b).
[5]Ibid ss 4D(2), 4E(2).
[6]Ibid s 4E(3).
With respect to the applicant’s application to vary bail, a person who has been granted bail may apply for a variation of their bail conditions.[7] In determining such an application, the Court may vary the conditions of bail if it is reasonable to do so having regard to the surrounding circumstances, including those set out in s 3AAA of the Act.[8]
[7]Ibid s 18AC.
[8]Ibid s 18AD.
The applicant’s personal circumstances
The applicant is 39 years old. He has two children aged 15 and 11 years.
The applicant commenced using amphetamines at the age of 16. Whilst on the Court Integrated Support Program (‘CISP’), the applicant undertook five sessions of drug and alcohol counselling.
The applicant has an appalling criminal history in Victoria, spanning 1998 to 2021. The applicant has served several custodial sentences, including the following in the last five years:
· December 2016: the applicant was sentenced for a number of property offences. He was sentenced to an aggregate term of 15 months’ imprisonment, with a non-parole period of nine months and a Community Correction Order (‘CCO’) for a period of two years.
· December 2018: the applicant was sentenced to 30 days’ imprisonment for a single offence of possess drug of dependence.
· 19 April 2021: the applicant was sentenced to an aggregate term of 60 days’ imprisonment for property, bail, and drug offences.
The applicant’s contentions
The centrepiece of the application arises from the fact that the applicant has been offered a four month placement at The Bridge residential rehabilitation program from 16 December 2021. The applicant submits that the program provides onerous levels of supervision and is arguably more strict than other bail arrangements. It is also anticipated that the applicant will continue engagement with drug and alcohol counselling at Odyssey House. The applicant has expressed motivation to remain abstinent from drug use to present as a role model for his children.
With the support of housing services, the applicant intends to secure stable accommodation outside of the Norlane region in order to distance himself from negative peer associations.
The applicant notes that his charges in the Fox matter were uplifted to be heard alongside the co-accused as the co-accused’s offences, including ramming a police car, are not triable summarily.
It is submitted that the Fox matter is unlikely to be listed for trial in the Geelong circuit in 2022 and therefore the applicant is likely to face significant delay. The applicant further submits that if he successfully completes the residential rehabilitation program, this could significantly alter the likely sentencing landscape for this matter.
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residential rehabilitation, curfew, and non-contact with any prosecution witnesses.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has failed to show a compelling reason that justifies a grant of bail. It is also opposed on the basis that the applicant poses an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail.
The respondent says that the uplift of the applicant’s matter to the indictable stream reflects the seriousness of the alleged offending. It is submitted that the alleged offending can be categorised as ‘spree offending’ and that the arsons posed a risk to members of the public.
The applicant has a lengthy criminal history of relevant theft, burglary, and dishonesty offences. The applicant has previously been sentenced for contravention of a CCO and re-sentenced for breaching three suspended sentences.
The respondent submits that the Fox matter is a sound circumstantial case. It is conceded that there is no forensic evidence linking the applicant to the arsons, however the prosecution relies on the timeframe of the alleged offences and their close location, and that the applicant was seen running from the stolen vehicle in which the stolen items were found.
Although the applicant’s acceptance into The Bridge residential rehabilitation program is acknowledged by the respondent as a potential ‘circuit breaker’, the respondent holds concerns that the applicant will continue to offend once he has completed the program. It is asserted that the applicant’s engagement in residential rehabilitation may expose him to associates who will influence him in drug-taking and reoffending. The respondent further submits that the applicant has not produced a report that evaluates whether engagement with rehabilitation and other community supports would mitigate his risk of further offending. The respondent also submits that the applicant has had previous opportunities to engage with residential rehabilitation programs and that this has not resulted in a cessation of offending.
Although the applicant has shown some success in complying with bail between May and October 2020, the alleged offending in the Fox matter and the second Hammond matter occurred whilst the applicant was on bail. The applicant has one prior conviction for failing to answer bail in 2010.
The respondent holds concern that the applicant does not have any prospect of paid employment if released on bail, which will increase his likelihood of reoffending to fund ongoing drug use.
The respondent submits that the applicant’s offending while subject to the CISP in 2020 further reflects the limited utility of rehabilitative programs in addressing the applicant’s offending behaviour.[9]
[9]The applicant was subject to CISP bail from 16 June 2020 to 7 October 2020. The alleged offending in the first Hammond matter occurred during this period, on 14 August 2020.
The respondent concedes that the applicant is likely to experience delay in the finalisation of his matters.
The respondent asserts that the nature of the arson offences, being in a residential setting, demonstrates the applicant’s disregard for public safety and welfare. While it is conceded that the applicant does not have a proven, longstanding pattern of this type of offending, the respondent holds concerns that the applicant will continue to pose a risk to the public if released on bail.
The respondent submits that the applicant’s criminal history and disregard for court orders is indicative of a high risk of reoffending on bail. It is further submitted that residential rehabilitation will provide little deterrence to the applicant’s offending behaviour due to his longstanding history of drug use and his ability to be easily manipulated into further drug use and offending.
Consideration
The applicant has a very bad criminal history that is associated with long term drug use, particularly methylamphetamine. He has had a number of opportunities within the criminal justice system but has continued to offend.
The present offences for which he is awaiting trial or a contested hearing occurred over a number of occasions and are by no means minor offending.
That said, I am persuaded that there are compelling reasons justifying the grant of bail. Importantly, the charges in the Fox matter are awaiting trial in the County Court. The reason for the uplifting of those charges is that the co-accused is facing charges relating to endangering emergency services workers by driving. This relates to the co-offender ramming the stolen car into a police car. The applicant is not charged with this offence. However, as his charges occurred on the same night, and were related in time and place, they will be heard together and his charges have been uplifted. Were it not for that fact, the applicant’s charges would be heard in the summary stream in the Magistrate’ Court. These facts assume present significance because any trial in the County Court will take much longer to get on than would be the case were the charges to be heard summarily.
The applicant’s counsel submitted, without demur from the respondent, that the trial would not be heard in 2022. I accept that is likely. In those circumstances, delay is a very significant factor to take into account. Given the seriousness and number of charges, and the applicant’s criminal history, if convicted the applicant will face a term of imprisonment. Nevertheless, the period on remand would likely account for a significant proportion of any sentence.
Next, I note that the applicant has a residential place in The Bridge, which provides residential drug and alcohol counselling conducted by the Salvation Army under strict conditions. I am satisfied that the applicant’s long criminal history has been associated with his drug abuse. Plainly, given the failure of the applicant to address his drug abuse and its relationship with his offending, the applicant’s history suggests that there is a real risk of further offending unless he abstains from drug use. On the other hand, the opportunity for residential treatment provides some prospect that his drug use will abate. Having heard evidence from the applicant, I accept that there is a level of sincerity in his desire to be drug free. That has either not been present or has been inadequate in the past. I also accept that he has put in place steps to find accommodation outside of the area in which he has lived in recent years in an attempt to remove himself from an environment where the temptation and availability of drugs has been a constant feature. I take this into account while noting that it will not be a lack of drugs that will be determinative of whether the applicant remains drug free or reverts to past form.
If the applicant is not at the end of the line for the opportunity of some therapeutic component of any court disposition, he must be perilously close to it. However, ultimately the combination of delay and the availability of a residential drug treatment place has persuaded me that there are compelling reasons justifying the grant of bail.
On the question of risk, based on the applicant’s antecedents there is obviously a risk of further offending. The terms of the residence are strict and in my view provides a measure of protection. Of course, it is likely that the program will be shorter than the period of bail and that at the end of the program there will be a question as to where the applicant lives. These matters can, at least to some degree, be accommodated by judicial monitoring. In the absence of stable accommodation and success in the program there would remain the possibility of a return to remand.
In the circumstances, I will grant bail on the condition that the applicant enter the residential program at The Bridge. I will also impose a condition requiring judicial monitoring. Having regard to the surrounding circumstances, I will vary the bail conditions on the first Hammond matter so that the applicant is subject to the same set of conditions as ordered in the Fox matter and the second Hammond matter.
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