Re application for bail by Bradley
[2021] VSC 663
•14 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0255
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by TEGAN BRADLEY | Applicant |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 October 2021 |
DATE OF ORDERS: | 7 October 2021 |
DATE OF REASONS: | 14 October 2021 |
CASE MAY BE CITED AS: | Re application for bail by Bradley |
MEDIUM NEUTRAL CITATION: | [2021] VSC 663 |
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CRIMINAL LAW – Application for bail – Applicant charged with summary driving charges, theft, conduct endangering life, and attempt to pervert the course of justice – Whether compelling reasons exist that justify the grant of bail – Whether applicant poses an unacceptable risk – Bail granted – Bail Act 1977 ss 3AAA, 4C, 4D.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Cronin | May Lawyers |
| For the Respondent | Ms A Roodenburg | Office of Public Prosecutions |
HIS HONOUR:
On 7 October 2021, I granted the applicant bail. What follows are my reasons for granting the applicant bail subject to conditions.
The applicant is 24 years old. Although she has a relatively minor criminal history, she now faces a slew of charges for offences that were alleged to have been committed between October 2019 and May 2021. They range in seriousness.
She faces five sets of summary charges which are to be heard on a consolidated plea of guilty in the Magistrates’ Court at Hamilton on 15 December 2021. She also faces two indictable charges that are in their early stages.
The charges
The summary charges are:
(a) Failing an oral fluid test due to the presence of methamphetamine on 9 October 2019,[1] 13 December 2019,[2] and 26 December 2020,[3] and driving while suspended, driving an unroadworthy vehicle, driving without number plates, and failing to display ‘P plates’ on 31 December 2019;[4] and
(b) Theft of electricity (constituted by running two extension cords from a power point on a neighbour’s property).[5]
[1]Informant Hunter.
[2]Informant McLaren.
[3]Informant Dumesny.
[4]Informant Phillips.
[5]Informant Dwyer.
The indictable charges are as follows.
On 14 March 2021, the applicant is said to have driven a car into her uncle. It appears she struck him twice, he fell to the ground, and sustained bruising. He went to hospital but was discharged on the day and did not sustain any injury beyond pain in his knee. The applicant was charged with reckless conduct endangering life, recklessly causing injury, driving in a dangerous manner, assault with a weapon (the car), and use of an unregistered motor vehicle. The first four charges appear to be alternatives. She was on bail for the theft charge at the time,[6] and as a result she was charged with committing an indictable offence whilst on bail.
[6]Informant Thambawita.
On 15 April 2021, the applicant is alleged to have perverted the course of justice by giving false evidence in the Magistrates’ Court. An acquaintance of the applicant was charged with traffic offences in Mildura and faced a contested hearing. The applicant gave sworn evidence that she was driving the car at the time of the alleged offences. The charges were struck out. Police now allege that the applicant was in fact 450 kilometres away at the time, based on phone records and other evidence, and that her evidence was false and constituted perverting the course of justice.[7] She was arrested and charged on 11 August 2021.
[7]Informant Pryor.
History of failure to appear
Although each of the driving charges were on summons, it is alleged that the applicant failed to appear on the return dates, warrants were issued, and when she attended court she was bailed to appear at a later date on four of the charges. In addition, she was bailed to appear on the theft charge. Although the precise sequence of events was not clearly established before me, it was alleged that the applicant failed to answer bail on four occasions and she has been charged with failing to answer bail under the Bail Act 1977 (‘the Act’).
The Bail Act
The applicant was arrested and remanded in custody on 11 August 2021 on all of the charges, including the perverting the course of justice charge. On 17 September 2021, a magistrate refused bail.
Because the injury charge and the perverting the course of justice charge occurred at a time when the applicant was on bail for the theft charge, those charges are Schedule 2 offences for the purpose of the Act. Further, the four charges of failure to answer bail are also Schedule 2 offences.
For that reason, the applicant bore the onus of establishing that compelling reasons exist that justify the grant of bail.[8] In assessing whether there are compelling reasons, the court must have regard to the surrounding circumstances as defined in s 3AAA of the Act.
[8]Bail Act 1977 ss 4C and 4D.
The applicant’s personal circumstances
The applicant is 24 years of age. She has two children aged six and one. They are in the care of their maternal grandmother. The applicant is pregnant and due to give birth in April 2022.
According to a report of the Court Integrated Services Program (‘CISP’), the applicant commenced using illicit substances at the age of 13. She reported periods of abstinence but relapsed into drug use when her children were removed from her care at the end of 2020.
The applicant reported being the victim of family violence. She has obtained a family violence intervention order (‘FVIO’) against the father of her eldest son, the father of her younger child, and the father or her unborn child. Two of the three FVIOs remain in place, including against the father of her unborn child.
The CISP report also noted that the applicant has claimed diagnoses of borderline personality disorder, depression, anxiety, and post-traumatic stress disorder.
The alleged offending with which the applicant has been charged occurred in a variety of places. It appears that in recent times the applicant has had an unsettled life without a stable address.
If granted bail, the applicant proposed that she would live at the home of Ms Sandy Tiba.[9] Ms Tiba is the mother of Mr Yaya Tiba,[10] who is the estranged partner of the applicant and the father of her unborn child. Ms Tiba gave evidence before me. In the current circumstances she gave evidence by telephone. Although that was far from perfect because the applicant sought bail, given the difficulties associated with the pandemic, the method was adequate. I note that the respondent did not contest the suitability of Ms Tiba’s home as a proposed place of residence but voiced some reservations about the arrangement.
[9]Also known as Ms Sandy Alkaratli.
[10]Also known as Mr Fahed Alkaratli.
Ms Tiba lives in a four bedroom home in Meadow Heights. She shares the house with her daughter and son. Her daughter is soon to be married and will move out of the house. Her son is 22 and works as a carpenter. Ms Tiba said that she is happy for the applicant to live with her when on bail. She has known the applicant for around two or three years and the applicant stayed with her for a few nights on one occasion shortly before the applicant was arrested. She said her son (Mr Yaya Tiba) who is the applicant’s former partner does not visit her home. Ms Tiba was aware that there is a FVIO in place that prevents her son being near the applicant and that this would prevent him from visiting her home whilst the applicant was living at the house. Ms Tiba said she understood that and accepted it.
Although Ms Tiba had a somewhat vague understanding of the applicant’s criminal charges, she said that she would notify the police if the applicant breached any conditions of her bail. It was submitted on behalf of the applicant that living in Melbourne would keep the applicant away from associates in Mildura and other places that have been a bad influence on her.
Analysis and conclusion
The combination of the following factors constitute compelling reasons that justify bail. First, although it is difficult to predict when the trial of the indictable offences, which are currently contested, would take place, it is safe to assume that it would not be for a substantial period of time. In the event of a contested committal, the delay would be even longer. A trial would not be held in 2022 and perhaps would not be held until well into 2023. In those circumstances there is a real and substantial risk that the time on remand would exceed any sentence that may be imposed.
Second, the conditions within prison have been significantly impacted by the pandemic. Access to visits, the heightened risk of lockdown, and isolation of prisoners imposes an additional and significant burden on the prison population.
Third, and relatedly, the applicant is pregnant. Unless granted bail she will have the baby in prison.
Fourth, the steps taken towards family reunification between the applicant and her two children are at a relatively important stage. Continued incarceration at this time would impede that process.
Fifth, the present remand is the first time the applicant has been in custody and it is very likely that the combination of factors above would make it very onerous.
Taken together, the circumstances are compelling.
Unacceptable risk?
The respondent submitted that the applicant is an unacceptable risk on bail. Specifically, it was submitted that, given her history, there is a substantial risk of her not answering bail. Further, it was submitted that there is a risk she might contact a prosecution witness involved in the alleged indictable offences.
I agree that there is a risk that the applicant will not attend court. However, the issue is whether, having regard to the surrounding circumstances, that risk is unacceptable. I am satisfied that there is not an unacceptable risk. I take into account each of the matters that I have referred to in the context of assessing whether there are compelling circumstances.
I am also influenced by the fact that the applicant has accommodation in Melbourne. The alleged offending occurred when the applicant lacked stable accommodation and was drifting around a number of regional centres. Although the respondent was correct to have some reservations about the proposed accommodation, the respondent did not submit that it was unsuitable. It appears to be a substantial improvement on the circumstances that existed at the time of the alleged offending.
The risks that inhere in the grant of bail can be ameliorated by the imposition of stringent conditions. I am conscious that the applicant has failed to answer bail and that the offending to which she has indicated that she will plead guilty involves driving offences that, if repeated, would pose a risk to the community. Those factors gave me pause in deciding whether or not to grant bail. However, any assessment of whether the risk is unacceptable has to take into account the likely length of the delay, and that a sentence of imprisonment might well be less than the time on remand. Further, and importantly, stable accommodation is available that assists in ensuring that the applicant answers bail and does not reoffend in the meantime.
In the result, I was satisfied that compelling reasons justified a grant of bail and that the risk of bail was not unacceptable.
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