Re application for bail by Dalton Espagne
[2023] VSC 746
•12 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0292
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by DALTON ESPAGNE | Applicant |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 December 2023 |
DATE OF RULING: | 12 December 2023 |
CASE MAY BE CITED AS: | Re application for bail by Dalton Espagne |
MEDIUM NEUTRAL CITATION: | [2023] VSC 746 |
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CRIMINAL LAW – Application for bail – Whether unacceptable risk exists if applicant released on bail – Exceptional circumstances exist justifying the grant of bail – Not shown that the applicant an unacceptable risk of committing an offence while on bail – Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Portelli | Valos Black & Associates |
| For the Respondent | Mr P McKimmie (solicitor) | Legal Services Department, Victoria Police |
HIS HONOUR:
This is an application for bail by 23 year old Dalton Espagne. He has been on remand since 24 October 2023 after being arrested and charged by Constable Zachary Pearson with a number of offences. They include cultivating a narcotic plant; two charges of trafficking in a drug of dependence; two charges of possessing a drug of dependence; dealing with the proceeds of crime; committing an indictable offence while on bail; contravening certain conduct conditions of bail; and failure to comply with an order to access data storage.
At the time of the alleged offending, the applicant was on bail for one charge of theft of an electric bike in 2023, and was the subject of a summons dated 9 June 2023 for charges of driving while disqualified; using an unregistered vehicle; failing to stop the vehicle on the direction of a police officer; and failure to wear a helmet. Those charges concern driving an e-scooter.
In addition, it is relevant to note that the applicant was, at the time of the current charges for which he seeks bail, serving two 12-month community correction orders (‘CCOs’) imposed on 14 December 2022 in the Wangaratta Magistrates’ Court. The CCOs were imposed for a range of offences, including trafficking a drug of dependence; contravening certain conduct conditions of bail; and committing an indictable offence while on bail. The charges are next listed in the Benalla Magistrates’ Court on 16 January 2024 for mention.
The charges arise from the execution of a search warrant at a property in Benalla. It is alleged that the applicant and his partner, Tara Simes, who is a co-accused in relation to the charges, were both present at the time and lived at the Benalla property together. It is the applicant’s position that there is insufficient evidence to establish that he was living at the Benalla property at the time or that he had any knowledge of or involvement in any drug trafficking that might be inferred from items seized from the Benalla property during the search.
During the search of the Benalla property, police located various items inside the house, including a can of liquid alleged to be GHB; a vial of GHB; a rock-like substance weighing 12 grams alleged to be methamphetamine; multiple small Ziploc bags containing a crystal-like substance alleged to be methamphetamine; numerous sets of scales and deal bags; a tick sheet detailing various names against large amounts of prescription medications; and a wallet containing personal cards in the applicant’s name and $700 in cash. I note charges three and five refer to 1,4-Butanediol, but I am told this is a mistake that will be amended and charges relating to GHB substituted.
In addition, five very small cannabis plants were located and seized from a shed at the rear of the Benalla property, and a vial of liquid alleged to be GHB was located in the glove box of a car parked in the drive way of the property. The car was registered in the applicant’s mother’s name. In the result, the charges relate to 12 grams of methamphetamine and 100 grams of GHB.
The applicable legislation
When applying and interpreting the Bail Act 1977 (‘the Act’), this Court is required to take into account — and I do — the guiding principles set out in s 1B(1).[1]
[1]The Act, s 1B(2).
The parties agree the applicant falls into the category of having to satisfy the Court that exceptional circumstances exist that justify the grant of bail, on the basis that he is accused of sch 2 offences[2] that are alleged to have been committed during the period of a CCO for other sch 2 offences.[3]
[2]Specifically, trafficking in a drug of dependence; cultivating a narcotic plant; committing an indictable offence while on bail; and contravening certain conduct condition of bail. See the Act, sch 2, items 24(b), 24(c) and 30.
[3]Specifically, trafficking in a drug of dependence; committing an indictable offence while on bail and contravening certain conduct condition of bail. See the Act, sch 2, items 24(b) and 30.
Bail must therefore be refused unless this Court is satisfied by the applicant that exceptional circumstances exist to justify the grant of bail.[4] In considering whether exceptional circumstances exist, this Court must take into account the surrounding circumstances, including but not limited to those in s 3AAA(1) of the Act.[5]
[4]The Act, ss 4A(1)–(2).
[5]Ibid s 4A(3).
The respondent fairly accepted that due to the possible delay in finalising evidence so that the matters are ready to proceed to trial, and the likely range of sentences that may be available in the event of convictions, there is a real possibility that the time on remand in the absence of the grant of bail would exceed any term of imprisonment imposed. I agree. In this respect, I note that in the event the substances located require chemical analysis, it would require a period of eight weeks from the date of mention in January, and in the event that the prosecution sought to access the phone located at the premises without a PIN being supplied by the applicant, that exercise might take six months or longer. I give little weight to this latter aspect as the applicant is subject to a direction to provide the PIN, which he has refused.
In combination with the delay and likely sentence in the event of a conviction on the charges, I also take into account the overall strength of the prosecution case, which I consider does give rise to some triable issues. Further, the fact that the applicant and his partner are expecting a child in 12 weeks leads me to conclude that in combination, there are exceptional circumstances justifying the grant of bail. I note that the respondent again fairly submitted that it was open to this Court to make such a finding in favour of the applicant.
If satisfied that exceptional circumstances exist that justify the grant of bail, this Court must then apply the unacceptable risk test.[6] Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is an unacceptable one.[7] In the present case, the respondent submits that there is an unacceptable risk that the applicant will further offend while on bail.
[6]Ibid ss 4A(4), 4D(1)(a).
[7]Ibid ss 4E(1)-(2).
In applying this test, this Court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[8]
[8]Ibid s 4E(3).
The applicant’s personal circumstances
In considering this matter, it is necessary to refer to some aspects of the applicant’s personal circumstances. He is, as I have said, 23 years old. He is currently in a relationship with Tara Symes, the co-accused in the remand matter, and she is pregnant with their first child.
Prior to this remand, the applicant contends that he was residing with his mother in Benalla while unemployed and receiving benefits from Centrelink. The applicant relies on a report authored by psychologist Sandra Cokorilo, dated 23 June 2022, which sets out further matters with respect to his personal background. I have had regard to those matters.
In terms of substance use, Ms Cokorilo’s report sets out that the applicant commenced engaging in alcohol and drug use from early adolescence, which evolved into regular daily use of methamphetamine from the age of 18 and regular daily use of GHB from the age of 21. The applicant reported that a number of his family members, including his mother, step father, brother, and one of his sisters, have used methamphetamine. He also reported some history of familial mental health issues, including both of his biological parents suffering from depression and his brother having a history of psychiatric admissions. Having regard to the various matters outlined in her report, Ms Cokorilo opined that the applicant has a high risk of further offending.
The applicant has a criminal history commencing in 2020:
(a) in June 2020, he was convicted in the Wangaratta Magistrates’ Court of driving while disqualified;
(b) in August 2020, he was convicted of various driving, dishonesty, drug and bail offences, and sentenced to a 12-month CCO, including conditions requiring him to undergo assessment, treatment and rehabilitation for his mental health, and drug and alcohol abuse;
(c) in August 2021, he was found to have contravened the CCO imposed in August 2020. That order was varied and extended to 2 August 2022;
(d) in December 2022, he was sentenced in the Melbourne County Court to 11 months’ imprisonment, reflecting time served at that time, for offences of intentionally causing injury, blackmail, committing an indictable offence while on bail, theft and possessing methylamphetamine; and
(e) on 14 December 2022, the applicant was;
(i) found to have contravened the CCO originally imposed in August 2020. The Court cancelled the original CCO and imposed a new 12-month CCO which included conditions requiring the applicant to undergo assessment and treatment; and
(ii) convicted of various driving, weapon, ammunition, drug possession, escape police custody and bail offences, and sentenced to a second 12‑month CCO with conditions to undergo assessment, treatment and rehabilitation for mental health and drug and alcohol abuse.
If granted bail, the applicant proposes to reside with his mother, Patricia Zerbato, at an address in Benalla. He reports having a good relationship with his mother and enjoying her support. If bail is granted, the applicant’s mother is willing to provide a $2,000 surety by way of bank cheque, which is confirmed in an affidavit sworn by her on 30 November 2023.
Ms Zerbato gave evidence before me. She impressed me as someone who is doing her best to assist the applicant in avoiding drug use. And she gave an undertaking to report breaches of bail conditions. I accept that she will provide some assurance of compliance and I give weight to the undertaking that she gave to this Court, and the fact that she will act as surety in respect of her son.
In addition to that support and accommodation, the applicant relies on the availability of employment as a labourer or apprentice with a maintenance and construction business in Benalla. Given that the business owner, Mr Tim Roscoe, has not met the applicant, and the details in respect of that employment are scant, I am only able to give it limited weight.
It is plain from the applicant’s criminal history that it arises from and is caused by his abuse and addiction to illicit substances. It is evident that unless he is able to curb his drug abuse, the risk of further offending will be high. The applicant notes that at the time of the alleged offending, he was serving CCOs requiring him to engage in relevant assessment, treatment and community work.
The previous treatment conditions on the CCOs do not seem to have been successful. Notwithstanding this, the applicant relies on the support of the Court Integrated Services Remand Outreach Program if bail is granted. I have had regard to a report from the Court Support Services officer dated 11 December 2023, which identifies that there will be some assessment and support in the event that the applicant is granted bail.
In that report, it was confirmed that the applicant had been assessed by the Community Outreach Program and recommended for brief intervention case management. The assessor identified issues with respect to substance abuse and mental health, and made referrals for the applicant to engage with an accredited worker in the area of substance abuse and to meet with a general practitioner for a mental health review, if bail is granted.
It is also intended that the applicant will receive one month of phone support through that service. The respondent refers to the applicant’s methylamphetamine and GHB addiction and submits that it is open to this Court to find that his addiction is the driver of the most recent alleged offending and will contribute significantly to any risk that he may commit further offences if granted bail.
The respondent submits the applicant will continue to commit offences if granted bail, even with the availability of treatment support services, on the basis that he had done previously, and that he poses a high risk of committing offences without intensive supports being put in place, such as a residential drug rehabilitation program.
Unacceptable risk
Having regard to these matters, although I retain a significant concern that the applicant will not adequately address his drug problem, I am satisfied that the risk is not unacceptable, given all of the circumstances and the gravity of the offending, and that the conditions I intend to impose, which will go some way to addressing the risk, will be sufficient to enable me to conclude that the applicant does not pose an unacceptable risk of further offending while on bail. The grant of bail subject to conditions does not provide a guarantee that there will not be further offending, and the history that the applicant has demonstrated shows that there remains a risk.
However, in circumstances where there is some family support, he and his partner are expecting a child in the next few months, and he has given some recognition of the importance of abstinence from drugs if he is to remain out of prison and be able to look after his partner and child, I am satisfied that he has a real incentive to avoid further offending.
It should be obvious to him that in the event of any further offending while on bail, the very high prospect is that bail would be revoked and he would be returned to prison, and he would have understood that the delay in finalising the matter may mean that that remand would be for a considerable period of time. Having regard to all of these matters, I am satisfied that there are exceptional circumstances, and it has not been shown that the applicant is an unacceptable risk. I propose therefore to grant the applicant bail.
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