Re application for bail by Marino
[2021] VSC 769
•22 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0321
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by ADAM MARINO | Applicant |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 November 2021 |
DATE OF JUDGMENT: | 22 November 2021 |
CASE MAY BE CITED AS: | Re application for bail by Marino |
MEDIUM NEUTRAL CITATION: | [2021] VSC 769 |
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CRIMINAL LAW – Application for bail – Applicant charged with contravening a condition of bail – Alleged offending occurred while applicant on bail for other matters – Whether exceptional circumstances established – Unacceptable risk – Delay – History of unfitness to plead – Bail Act 1977 ss 1B, 3AAA, 4A, 4AA, 4E, 4D, 30A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms H Canham | Victoria Legal Aid |
| For the Respondent | Mr N Watt | Legal Services Department, Victoria Police |
HIS HONOUR:
Adam Marino (‘the applicant’) is 45 years old and applies for bail on a single charge of contravening a conduct condition of bail. He was charged by Constable Elissa Dykstra on 10 November 2021 (‘the Dykstra matter’) and refused bail the next day at the Ringwood Magistrates’ Court. The magistrate refused bail finding that the applicant had shown exceptional circumstances justifying the grant of bail, but that there was an unacceptable risk that the applicant would commit an offence while on bail in the absence of stable housing. By notice filed on 12 November 2021, the applicant now applies for bail in this court.
At the time of the alleged offending in the Dykstra matter, the applicant was on bail for four other matters with informants De Santana, McLaren, Sibbing and Campbell. He remains on bail for these matters.
The Dykstra matter, which is the charge in respect of which bail was refused, is next listed on 26 November 2021 at Ringwood Magistrates’ Court for mention.
The alleged offending
On 10 November 2021, the applicant was charged by Leading Senior Constable Wendy Campbell with offences arising from an altercation with police around 1.00 am in Mooroolbark, after they were called to a construction site in response to the applicant verbally abusing workers and causing safety issues. He was bailed by police with conditions including not to go or remain within 500 metres of Mooroolbark or Lilydale central business districts, unless in the company of a police officer.
Later the same day at around 7.00 pm, passers-by reported to police that a man was harassing customers at the Mooroolbark Coles. Police attended and located the applicant sitting out the front of the store. The store is located on Brice Avenue which is described in the police summary as the main street of Mooroolbark, and accordingly it is alleged that he contravened the geographic exclusion in his bail conditions.
The applicant was arrested and deemed not fit for interview due to his mental state.
The applicant was charged with contravening a condition of bail.[1] At the time of the alleged offending, the applicant was on bail for a series of summary offences and had been charged with several counts of assaulting an emergency worker,[2] two counts of criminal damage,[3] and committing an affray.[4] The most serious of the charges the applicant faces is criminal damage, which is a level 5 offence and carries a maximum penalty of 10 years’ imprisonment.
[1][1] Bail Act 1977 s 30A(1).
[2]Crimes Act 1958 s 31(1)(b). Assault of an emergency worker has a penalty of level 6 imprisonment (5 years maximum). As such, pursuant to s 28 of the Criminal Procedure Act 2009, the offence can be heard and determined summarily.
[3]Crimes Act 1958 s 197.
[4]Crimes Act 1958 s 195H.
In the De Santana matter, the applicant is accused of throwing bottles at two workers who were clearing a tram stop in St Kilda and then kicking their equipment and attempting to strike them with a broom. In the McLaren matter, he is accused of using a bike helmet to break a window of an adult entertainment premises in the CBD. The Sibbing charges arise from an incident when the applicant was a patient at Maroondah Hospital Emergency Department. He began throwing things around the room, police were called, and he was placed in a divisional van. He is alleged to have kicked a police officer in the arm as he was placed in the van and spat on another officer. Finally, in the Campbell matter, the applicant is said to have been causing a commotion at a construction site. Police attended and he struck an officer with a punch to the left cheek causing bruising.
The applicable legislation
The application is governed by the Bail Act 1977 (‘the Act’). In interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B(1).[5]
[5]Bail Act 1977 s 1B(2).
Because the applicant is accused of committing a Schedule 2 offence,[6] whilst on bail for Schedule 2 offences,[7] he must satisfy the Court that exceptional circumstances exist that justify the grant of bail. Otherwise bail must be refused.[8] In considering whether the test is met, the Court must have regard to the surrounding circumstances,[9] including those in s 3AAA(1) of the Act.
[6]Bail Act 1977 sch 2, item 30 (offence against the Bail Act).
[7]Bail Act 1977 sch 2, item 30 (offences against the Bail Act in the Sibbing and Campbell matters); and item 1(a) (indictable offences in the Sibbing and Campbell matters while on bail for other indictable offences).
[8]Bail Act 1977 ss 4AA(c)(i) and 4A(1A), 4A(2).
[9]Bail Act 1977 s 4A(3).
Even if the applicant discharges this burden, the Court must still refuse bail if satisfied by the respondent that the applicant poses an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[10] The Court must again have regard to the surrounding circumstances in determining unacceptable risk, and consider whether there are any conditions of bail to mitigate any risk so that it is not unacceptable.[11]
[10]Bail Act 1977 s 4D(1)(a).
[11]Bail Act 1977 s 4E(3).
The applicant’s personal circumstances
The applicant is 45 years of age. He has no living relatives. His father and brother are deceased. The applicant has a long-term experience of homelessness.
He has a complex and extensive psychiatric history including diagnoses of schizoaffective disorder, substance use disorder, and an acquired brain injury, for which he has required both inpatient and compulsory community treatment over many years.
The applicant has criminal history, most recently in 2016. He has previously been sentenced to adjourned undertakings, either with or without conviction, for a range of offences including violence, dishonesty, drug, and driving offences. His most serious sentence was a wholly suspended two month term of imprisonment imposed in 2013 for theft and obtaining property by deception. I note that the applicant does not have a proven history for bail related offences. A number of charges were laid between 2018 and 2021, including weapons offences and drug offences. These were withdrawn on 24 June 2021 on the basis that the applicant was not fit to plead to the charges. He had at that time 110 days of pre-sentence detention.
The applicant was previously assessed by Dr Jacqueline Rakov in December 2020 who opined that the applicant was unfit to stand trial at the time of writing in January 2021, and further stated:
I am not wholly convinced that there is the possibility of restoration of fitness, but if there were to be, it would likely involve continuous treatment by assertive means and ideally in a secure facility where he would not have access to substances and would also alleviate the homelessness burden. Nevertheless, his brain injury may be a limiting factor in perpetuity, in particular his difficulties with impulsive behaviour.
The applicant’s submissions
The applicant submits that the alleged offending is not a serious example of the offence for which he seeks bail. It is noted that the applicant was granted bail with a geographic exclusion, however, he routinely needs to attend familiar areas such as Mooroolbark and Lilydale to access services such as the bank.
The applicant has experienced long-term homelessness. His mental illness is said to be a barrier to engaging in assessment and obtaining a referral for housing support services. Crisis accommodation has either been unavailable or unable to be guaranteed ahead of time or for a specific length of time.
The applicant is submitted to have a special vulnerability due to his mental illness. He requires depot anti-psychotic medication that cannot be administered in prison.
The applicant submits that both fitness to stand trial and the defence of mental impairment are being investigated and those matters are in the early stages and are not likely to finalise for some time.
The applicant submits that even if he were to be found guilty of the offences with which he is charged, he would not receive a term of imprisonment.[12] He points to the low level of the seriousness of the charges and the matters in mitigation in making this submission.
[12]The applicant had spent 39 days on remand at the date of his submissions being 19 November 2021. Being 30 days on remand between 26 September and 26 October 2021, and a further nine days in respect of the Dykstra matter.
The applicant relies on the restrictive conditions in custody due to the pandemic, including 14-days in quarantine, limited time out of his cell, and lockdowns.
As to risk, the applicant submits it can be reduced given he has ongoing access to treatment through Eastern Health. Further, the applicant has experienced longstanding homelessness which is unlikely to be rectified immediately due to the limitations of support services. It is submitted to be ‘unjust’ for the applicant to remain in custody until this issue is resolved.
The respondent’s submissions
The application for bail is opposed on the basis that the applicant is required to demonstrate exceptional circumstances that justify the grant of bail. The application is further opposed on the basis that there is an unacceptable risk that the applicant would endanger the safety or welfare of any person or commit an offence while on bail.
It is submitted that the seriousness of the applicant’s offending is escalating, with charges for assaulting police in the Sibbing and Campbell matters.
The respondent acknowledges that the applicant has no entries on his criminal record since 2016, however, it is submitted that there has not been a pause in offending since that time and that there have been charges brought by eleven informants between December 2018 and March 2021. These charges were withdrawn by the prosecution in the Magistrates’ Court this year due to a psychiatric report that the applicant was unfit to stand trial.
The respondent submits that without suitable accommodation where the applicant can receive treatment and support, he is more likely to re-offend.
The respondent concedes that the applicant has a special vulnerability given his mental illness. However, the respondent holds concerns that the applicant will not engage with treatment as required under his Community Treatment Order, and further notes that it is due to expire on 23 November 2021, though I note that it has been extended to 15 November 2022.
In relation to engagement, the informant outlines that Eastern Health requested police assistance on five occasions between February and July 2021 to locate the applicant as he failed to attend scheduled appointments.
Acting Sergeant Jonathon Woods, who was allegedly assaulted by the applicant in the Sibbing matter, states that he has observed the applicant’s steady decline and rise in aggression towards both police and members of the public. His opinion is the applicant poses an extreme risk of reoffending or seriously harming someone.
The respondent acknowledges that the applicant’s fitness remains a live issue. It is submitted that the outcome of the scheduled psychiatric assessment could impact the issue of delay. To that end:
(a) if the applicant is deemed unfit, consideration will need to be given to uplifting the matters to a jurisdiction capable of imposing a treatment based order; and
(b) if the applicant is found fit, he will face strong prosecution cases in the outstanding matters.
The respondent accepts that the applicant may spend more time in custody if bail is refused than any likely sentence imposed for the Dykstra matter alone. However, when considering all outstanding matters in totality, which includes indictable assaults against police officers, that a period of custody is within range.
Unacceptable risk
The focus of the respondent’s submission was that the applicant is an unacceptable risk.
The respondent submits that the applicant’s offending is becoming increasingly violent in nature. He has also previously demonstrated a propensity to carry weapons. Recent offending further indicates a propensity to act with violence towards responding police.
It is submitted that the applicant has continued to commit offences while on bail. When taking into consideration the outstanding matters, the withdrawn matters, and the applicant’s criminal history, it is submitted the offending is continual. The current treatment plans have not caused the applicant to stop offending.
Conclusion
In my opinion, there are exceptional circumstances justifying bail. Looked at globally, there is a real question as to the applicant’s fitness to plead. Earlier charges have been withdrawn on the basis of evidence that showed the applicant was not fit to plead. It is unlikely those issues have resolved or his capacity improved.
Even if he were fit to plead and found guilty, it is highly likely his mental state, homelessness, and other features would reduce his culpability to a significant degree. Although difficult to assess at this stage, it is very likely that his time on remand would well exceed any sentence that might be imposed. There is a real chance that the offending would not attract a custodial sentence. Further, his time on remand for other offences which were withdrawn would need to be taken into account and would reduce the risk of any further time to a level that is remote.
The conditions in custody are onerous both because of the restrictions associated with the pandemic and because of the applicant’s mental health. I consider him to be vulnerable in a prison environment.
Further, I accept that incarceration may affect his treatment, including the ability to receive depot injections. Although, I observe that his status on his current treatment appears to be mixed.
I accept that that there is a risk that the applicant would offend or endanger the health and welfare of persons if granted bail. However, the issue is whether that risk is unacceptable. In making that assessment the Court is required to have regard to all of the circumstances. As Croucher J observed in Hall v Pangemanan,[13] it may be useful to consider not only the probability of the applicant offending but also the nature and type of offending that might be involved.
[13][2018] VSC 533, [25].
I take into account that some of the offending has involved alleged assaults on police and other persons. I note the opinion of Acting Sergeant Jonathon Woods that the offending is escalating.
There is a risk that if released on bail the applicant will offend. That risk is elevated because the applicant is homeless and not easy to support in the community. Recent efforts to connect the applicant with crisis accommodation and other supported accommodation services have been unsuccessful, largely because his psychiatric illness makes it difficult for him to engage with referral processes. Nevertheless, I am not persuaded that the risk is escalating to any appreciable degree.
Although the assessment of risk for the purposes of deciding whether or not to grant bail has a protective purpose, it should be remembered that bail is not designed as a means of preventative detention. Still less should it be used as an alternative to stable housing in the community.
I do not consider in this case that the absence of a static address means that bail must be refused. The applicant has not been easy to support and presents challenges to those individuals and organisations who would seek to help him. He also has presented challenges to police. Nevertheless, I am not persuaded that, for the purpose of deciding whether or not to grant bail, the applicant presents an unacceptable risk.
In reaching that conclusion I observe that, were the matters finally dealt with today, it is very unlikely that he would be imprisoned and he would most likely be immediately released. In the circumstances, I am not satisfied that the applicant poses an unacceptable risk of any of the matters identified in s 4E of the Act and I will grant bail to the applicant.
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