Re Application for Bail by LM
[2021] VSC 623
•23 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0237
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by LEIGH M | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2021 |
DATE OF JUDGMENT: | 23 September 2021 |
CASE MAY BE CITED AS: | Re Application for Bail by LM |
MEDIUM NEUTRAL CITATION: | [2021] VSC 623 |
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CRIMINAL LAW – Bail – Applicant charged with using carriage service to menace, threats to cause serious injury and other charges – Applicant already on bail for other charges – Mental health issues – Applicant may not be fit to stand trial – Delay – Exceptional circumstances established –No unacceptable risk – Bail granted – Bail Act 1977 – ss 1B, 3AAA, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Hancock | Criminal Lawyers Geelong |
| For the Respondent | Mr J Dickie | Office of Public Prosecutions |
HER HONOUR:
Introduction
The applicant (‘Leigh M’) is 46 years old. On 25 May 2021, Leigh M was arrested and remanded by Constable Jordan Drue Robbins (‘the informant’) for the following charges (‘the Robbins charges’):
(a) Charges 1, 2 and 3: Use carriage service to menace contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995 (Cth)(‘the Code’), on 11, 12 and 13 April 2021 respectively;
(b) Charges 4, 5 and 6: Threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 (‘Crimes Act’) on 11, 12 and 13 April 2021 respectively;
(c) Charges 7, 8 and 9: Commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (‘the Act’) on 11, 12 and 13 April 2021 respectively; and
(d) Charges 10 and 11: Contravene interim personal safety intervention order (‘PSIO’) contrary to s 100(2) of the Personal Safety Intervention Order Act 2010 on 11 and 13 April 2021.
Leigh M was refused bail in the Geelong Magistrates’ Court on 26 May 2021 and again on 2 July 2021. Leigh M was legally represented on both occasions by his current solicitor who has acted for him in the past. On each occasion, exceptional circumstance were found to be made out[1], but Leigh M was found to pose an unacceptable risk of committing an offence while on bail, and (on 2 July 2021) interfering with witnesses. Her Honour Magistrate Bolger noted on 26 May 2021 that Leigh M had an acute mental illness and recommended he be assessed as a matter of priority. On 2 July 2021, Magistrate Mellas noted that Leigh M was in the early stages of psychiatric treatment, and that he had a long-standing psychosis and problematic drug use.[2]
[1]Ms Hancock told the Court that despite the Magistrates’ Court extract from 26 May 2021 indicating that Magistrate Bolger was not satisfied of exceptional circumstances, her instructor’s recollection and notes indicate that her Honour was so satisfied.
[2]Notices of Order Made on 26 May 2021 and 2 July 2021, supplied by the respondent.
Leigh M has been in custody since he was arrested.
A committal mention was listed on 30 July 2021, but that hearing was adjourned to allow time for the applicant to commence mental health treatment. The Robbins charges are next listed on 1 October 2021 in the Geelong Magistrates Court for committal mention.
There are no co-accused.
Resolution of issues
The application for bail was initially opposed by the respondent. However, the day before the hearing, the applicant’s lawyers filed additional material setting out, amongst other things, information about Leigh M’s current mental health treatment in prison, including that he had been compliant with antipsychotic medication since June 2021.[3] In response to this, Counsel for the respondent Mr Dickie advised that exceptional circumstances were conceded. Mr Dickie also indicated that the respondent would not press its submissions regarding unacceptable risk if arrangements were made for Leigh M to re-engage with the Barwon Health Mental Health service, and if that service was content to re-engage with Leigh M if he were granted bail.
[3]Further Affidavit of Niamh Harrington affirmed 22 September 2021 (‘Further Affidavit in Support’) and Outline of Submissions in Support of an Application for Bail dated 22 September 2021 (‘Applicant’s Written Submissions’).
At the hearing, Ms Hancock, counsel for the applicant, confirmed an appointment had been made for Leigh M with Barwon mental health service for the Monday following the hearing, which he would attend if he were bailed. On that basis, Mr Dickie informed the Court that the bail application was not opposed provided the conditions proposed by the applicant were imposed other than a proposed condition that his father supervise him. This was not considered appropriate. However, an addition was suggested to the condition requiring Leigh M to attend his appointment with Barwon Health that he was to advise the informant when he had done so.
As such, ultimately, the bail application proceeded unopposed, and the discussion at the hearing was largely confined to determining suitable conditions of bail.
Circumstances of the applicant’s alleged offending and arrest
The complainant in the Robbins charges is Mark O. On 2 March 2021, a PSIO was made in the Geelong Magistrates’ Court for Mark O’s protection against Leigh M, prohibiting Leigh M from having any contact with Mark O.[4]
[4]At the time the Order was made, Mark O believed Leigh M’s named was ‘Lee Kenner’.
On 11 April 2021, Leigh M sent Mark O a text message asking for ‘his money’. On 13 April 2021, Leigh M sent Mark O a further 14 text messages regarding a debt, that could be characterised as very threatening. Mark O reported the messages to Geelong police on 13 April 2021.
After he failed to attend the police station for interview as agreed, a warrant was issued for Leigh M’s arrest and interview. On 25 May 2021, he was intercepted by members of the highway patrol and interviewed. He gave no comment, and was arrested and remanded.
Leigh M was on bail at the time of the alleged offending, having been granted bail on the prior Fitzgerald and Van Dugteren matters, discussed below.
Outstanding matters
Leigh M has four other sets of outstanding charges. He is one summons for two, and on bail for the other two.
On 12 June 2020, informant Constable Tim James charged the applicant on summons with recklessly causing injury to and assaulting Melissa L during an altercation that day (‘James charges’). Melissa L used to be married to Leigh M’s uncle. A FVIVO was later made for Melissa L’s protection. That matter is next listed on 1 October 2020 for Mention.
On 19 September 2020, Senior Constable James Fitzgerald charged Leigh M with trafficking methylamphetamines, dealing in suspected proceeds of crime and related charges (‘Fitzgerald charges’). These charges arose after Leigh M was intercepted by police that day and found with a quantity of ice in zip lock bags and a large amount of cash in his car. Leigh M was granted bail on the Fitzgerald charges in the Geelong Magistrates’ Court on 21 September 2020. The conditions of that bail include a static residence condition at his Hamlyn Heights home, a curfew, and prohibitions on driving and using drugs. That matter is next listed for further committal mention on 1 October 2021.
On 29 September 2020, Leigh M was charged by Constable Samuel Van Dugteren with making threats to kill and other related charges (‘the Van Dugteren charges’). Constable Van Dugteren alleges Leigh M sent threatening text messages to his associate Glenn C, that same day. The threats appear to relate to Glenn C owing Leigh M money. On 2 October 2020, Leigh M was bailed on these charges in the Geelong Magistrates’ Court. The conditions of that bail are the same as the bail on the Fitzgerald charges, with the addition of a requirement that Leigh M was to immediately arrange and participate in treatment with Geelong West community mental health team. The Van Dugteren charges are next listed for Mention on 1 October 2021, in the Geelong Magistrates’ Court.
Lastly, on 29 July 2021, Leigh was charged on summons by First Constable Jack Andrews for possessing cannabis, drug driving and unlicensed driving on 25 May 2021. Those charges are next listed for Mention on 3 February 2022 in the Geelong Magistrates’ Court.
Intervention Orders
I am advised by the respondent that there are currently two active FVIVOs in place where Leigh M is the respondent:
(a) The first was made in the Geelong Magistrates’ Court on 15 December 2017 and expires on 15 December 2022. It is a final order, for the protection of Leigh M’s uncle, Nevada C, and two other family members and prohibits Leigh M having any contact with them.
(b) The second was made in the Geelong Magistrates’ Court on 6 February 2018 and expires on 14 July 2022. It is a final order, for the protection of Leigh M’s ex-partner, Christina S, and their five children, and prohibits Leigh M having any contact with them unless in accordance with a written agreement about child arrangements.
There is also a current interim PSIO in force where the protected person is Glenn C (the complainant in the Van Dugteren charges). That Order was made in the Geelong Magistrates’ Court on 2 October 2020. It will remain in force until a final order is made or it is varied, revoked or the application is withdrawn.
The applicant’s personal circumstances and criminal/bail history
Leigh M ordinarily resides in Hamlyn Heights with his father, Ken M. His mother is deceased, and herself had a history of incarceration. Leigh M previously worked as a plasterer, but has been reliant on a Disability Support Pension from Centrelink for the last 10 years after he suffered a serious hand injury.
Leigh M had a kidney removed in 2014 due to ongoing illness. It appears he still suffers some complications connected to that, which cause him difficulty when urinating.
Leigh M has five children from one relationship with his ex-partner, Christina S. Child protection authorities are involved with all five children and there are ongoing Court proceedings in relation to them. Leigh M and Christina S separated in 2017. Leigh M attempted suicide shortly after that relationship ended. He was hospitalised and diagnosed with adjustment disorder and substance abuse.
Leigh M had several further mental health assessments between 2018 and 2020. All of those assessments raised concerns that Leigh M may be psychotic and untreated.[5] In 2020, after an assessment with Dr McInerney, a Consultant Forensic Psychiatrist, Leigh M was considered to be floridly psychotic. Dr McInerney contacted Barwon Health and requested an urgent assessment for Leigh M, but he was reportedly unwilling to cooperate with that service.
[5]Report of Clare McInerney dated 18 June 2021, annexed at NH-5 of the Affidavit in Support.
In around October 2020, shortly after being bailed on the Van Dugteren charges, Leigh M re-connected with Barwon Health and received treatment through the community mental health service for several months. He was prescribed an oral antipsychotic medication (Paliperidone). It appears he was compliant, though he complained of sedation effects from the medication. The service lost contact with Leigh M in March 2021.
Since being remanded, in June 2021, Leigh M was assessed by Dr McInerney again, to assist in determining his fitness to stand trial for his outstanding charges. In her report, Dr McInerney considered it likely that Leigh M has either a delusional disorder or paranoid schizophrenia. She found that for the last three years he has almost certainly been constantly and actively psychotic. She observed that Leigh M may have suffered a brain injury as a result of his failed suicide attempt in 2017, and considered a neuropsychological assessment would be useful to determine the nature of any cognitive deficits. Further, Dr McInerney observed that Leigh M had lost a considerable amount of weight since her assessment in 2020. She thought this might be related to him not eating while in prison, which she had observed before, but noted that a medical examination ought to be conducted to investigate the issue.
Dr McInerney ultimately found that Leigh M is not currently fit to stand trial but that he could become fit if he received proper treatment for eight weeks. Dr McInerney recommended he commence treatment in custody and liaised with Forensicare for this purpose. Leigh M commenced taking the antipsychotic medication Olanzipine shortly after in June 2021. Leigh M was then transferred to another prison, and into a mental health unit at that new prison on or about 1 September 2021. Since then, his dose of Olanzipine has been increased. He has reportedly been compliant with his medication, although it appears he may lack some insight into his mental illness. Dr McInerney will assess Leigh M again on 19 November 2021.
It appears Leigh M has a history of abusing alcohol, cannabis, benzodiazepines, and methamphetamine. The details of this are not clear, though it seems that Leigh M has been abstinent whilst in custody.
Leigh M has somewhat of a lengthy adult criminal history commencing in 1995, but no recent history of bail-related offending.[6]
[6]He has one prior conviction for failing to answer bail in 1995.
Between 1995 and 1999 he received fines, community-based orders, and some short terms of detention in youth justice centres mainly for dishonesty and drug offending, including trafficking cannabis. Leigh M was granted bail on the Fitzgerald charges in the Geelong Magistrates’ Court on 21 September 2020. The conditions of that bail include a static residence condition at his Hamlyn Heights home, a curfew, and prohibitions on driving and using drugs.
That matter has been listed several times.[7] At the most recent committal mention on 30 April 2021, issues of Leigh M’s fitness to stand trial were raised, and the matter was adjourned for a further committal mention on 1 October 2021, so this could be explored. In 2001 he was sentenced to six months imprisonment for trafficking cannabis, that was served as an intensive corrections order. It seems he managed to stay out of trouble until 2005, receiving a good behaviour bond, which he complied with, that year for breaching an intervention order and resisting police.
[7]A filing hearing was held on 21 September 2020. The matter was then listed for committal mention on 8 January 2021.
In December 2006, he received two suspended sentences for various changes, including two charges of breaching an intervention orders.
On 9 October 2007, he was sentenced to 12 months' imprisonment for intentionally threatening serious injury and criminal damage, with a non-parole period of 3 months. Also, that day, he was convicted of breaching one of the 2006 suspended sentences.
Between 2007 and 2016, he received several fines for minor drug and driving offences. In June 2016, he was placed on a 12-month Community Corrections Order (‘CCO’) for driving and dishonesty offences. That order included therapeutic conditions, including to undergo treatment for drug abuse and dependency. He complied with that Order. He did not offend again until June 2020 (the James charges).
Applicable law
When interpreting the Act, the Court must have regard to the guiding principles set out at s 1B(1) of the Bail Act 1977 (Vic)(‘the Act’).
In this case, the parties agree that the applicant must establish that exceptional circumstances exist in order to justify the grant of bail due to being charged with a Schedule 2 offence, namely charges 7, 8 and 9 (committing an indictable offence whilst on bail),[8] whilst on bail for a Schedule 2 offence, namely charge 2 of the Fitzgerald charges (trafficking a drug of dependence.[9]
[8]The Act Sch 2, Item 30.
[9]The Act Sch 2, item 24(b), thus putting him within the exceptional circumstances test pursuant to the Act s 4AA(2)(c)(i).
Therefore, the Court embarks on a two-step process in determining the application. First, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances justify the grant of bail.[10] Second, even if satisfied by the applicant under Step 1, the Court must refuse bail if the respondent satisfies the Court under Step 2 that the applicant poses an unacceptable risk pursuant to ss 4D and 4E of the Act.
[10]The Act s 4A(1A).
Step 1 – the ‘exceptional circumstances’ test
In considering whether exceptional circumstances exist, the Court must take into account ‘the surrounding circumstances’.[11] This includes all the circumstances that are relevant to the matter, including, but not limited to, those set out in s 3AAA(1) of the Act.
[11]The Act, s 4A(3).
In the bail application of Re Brown,[12] Lasry J summarised principles relevant to interpreting ‘exceptional circumstances’ in the context of applications for bail:
The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[13]
[12][2019] VSC 751.
[13]Ibid [65] (citations omitted).
Unacceptable risk test
Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing that if released on bail, Leigh M poses an unacceptable risk or engaging in any or all of the conduct captured by s 4E(1). In the present case the respondent says the applicant poses an unacceptable risk of:
(a) Committing an offence while on bail;
(b) Interfering with witnesses; and/or
(c) Failing to surrender into custody in accordance with the conditions of bail.[14]
[14]Affidavit in Response affirmed by Chloe Eckersley dated 17 September 2021, (‘Affidavit in Response’), [15](b).
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
The applicant’s contentions in support of bail
Ms Hancock relied on the affidavit material filed in support of Leigh M’s application, and her own written submissions. At the hearing, Ms Hancock usefully summarised Leigh M’s progress over the last 12 months with respect to his mental health and treatment. Notably, Leigh M, despite having engaged in a series of offences since 2020, had managed to abstain from offending between October 2020 and April 2021, and for much of that time, he was engaged with mental health treatment with the same service that is willing to support him on bail now.
Ms Hancock noted that the material from treating psychiatrists indicates Leigh M has a psychotic illness. He has now spent four months in custody and has been medicated since June 2021. He is compliant with his medication, and his dose has been substantially increased. Ms Hancock highlighted that there was now treatment available for Leigh M in the community and that he was willing to do anything in order to comply with his bail. Ms Hancock also relayed that her instructor had spoken with Leigh M the day before the bail hearing and had noticed a marked improvement in Leigh M’s presentation.
Ms Hancock noted that the applicant will be well supported by his father and if granted bail could live with his father in Hamlyn Heights. Ken M, Leigh M’s father was present at the hearing, but was not required to give evidence. Leigh M himself confirmed at the hearing that he could make arrangements to get taxis or buses to all of his appointments, and that he had organised to have his Disability Support Pension re-instated if released.
The applicant relied on delay connected with COVID-19, as well as Leigh M’s vulnerability in custody, owing to his mental health issues, the outstanding issue of fitness which may take some time to be resolved , in combination with the above matters to make out exceptional circumstances. The current period on remand has been the longest period Leigh M had spent in custody since 2007.
Ms Hancock relied on these same factors to submit that Leigh M does not present an unacceptable risk, and submitted he understands the conditions of bail being proposed.
The respondent’s contentions in opposition to bail
As already indicated, the respondent at the oral hearing the respondent did not oppose bail on the conditions ventilated in open court. Mr Dickie explained to the Court that the respondent’s previous concerns surrounded the lack of updated information regarding Leigh M’s mental health status and treatment. Mr Dickie noted that the two Magistrates’ who had refused bail earlier in 2021 were clearly concerned about Leigh M receiving appropriate mental health treatment. He said that the further material provided more recently had allayed the respondent’s concern. It is clear that Leigh M has been receiving mental health treatment and he is complying with, and there is treatment available for him in the community. Further, it seemed on the material available that Leigh M’s mental health was improving. Mr Dickie acknowledged that if not bailed, Leigh M would not be re-assessed by Dr McInerney until November, at which time he would have been in custody for 6 months. Mr Dickie acknowledged the length of time Leigh M had already spent in custody was a concern. These matters taken together were sufficient to establish exceptional circumstances on Mr Dickie’s submission.
Mr Dickie acknowledged that Leigh M did present some risks, and that it would appear Leigh M did engage in a spree of offending, but this seemed to be linked to his mental health issues. The respondent and the informant were content that the risks could be rendered acceptable by the imposition of the conditions proposed by the applicant, with the modifications discussed at the hearing and mentioned above. In particular, Mr Dickie submitted that there was no issue taken with the proposed static residence, but that it was not appropriate to make Leigh M’s father his ‘supervisor’ as was initially proposed by the applicant. Rather, Mr Dickie agreed that it was up to the applicant to ensure he complied with his conditions of bail and so Mr Dickie did not seek to cross-examine Ken M.
Analysis
Has the applicant established that exceptional circumstances exist justifying a grant of bail?
Having regard to all the surrounding circumstances in this matter, I am satisfied that exceptional circumstances are established by the combination of the following circumstances:
(a) The psychiatric materials confirm that Leigh M has a serious psychotic illness, and because of that, he has previously been considered unfit to stand trial. His illness makes him particularly vulnerable in the custodial setting.
(b) Leigh M has been receiving mental health treatment since June 2021, and is currently compliant with anti-psychotic medication at a higher dose than he has previously had;
(c) Mental health treatment is available in the community, with the Barwon Mental Health Service. Leigh M has successfully engaged with this agency before, and Leigh M is willing to engage;
(d) Leigh M has ongoing physical health difficulties, regarding his kidneys and substantial weight loss, which also increases his vulnerability in the custodial setting, especially in the context of the ongoing risks of COVID-19; and
(e) Leigh M faces a lengthy delay in having his matters finalised due to COVID-19 factors, which is particularly concerning given his vulnerability in custody.
Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)?
I am not satisfied that Leigh M presents an unacceptable risk of engaging in any conduct set out in s 4E(1), and I am satisfied that the conditions of his grant of bail, which are agreed between the parties, will ameliorate any risk to an acceptable level.
Accordingly, bail is granted.
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