Re Application for Bail by Mihalitsis
[2020] VSC 6
•21 January 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0252
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by Chris MIHALITSIS |
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 January 2020 |
DATE OF ORDERS: | 16 January 2020 |
DATE OF REASONS: | 21 January 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Mihalitsis |
MEDIUM NEUTRAL CITATION: | [2020] VSC 6 |
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CRIMINAL LAW – Application for bail – Charges of intentionally causing serious injury in circumstances of gross violence, recklessly causing serious injury in circumstances of gross violence, intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury, recklessly causing injury, aggravated assault, common assault, possession of drugs of dependence, possession of prohibited weapons, driving motor vehicle displaying registration plates not issued to that vehicle, and failing to comply with direction of police officer – Schedule 2 offending – Whether ‘compelling reason’ made out – – Offending occurred in context of heightened state of addiction – Likely lengthy delay between arrest and any trial – Compelling reasons established – Whether applicant ‘unacceptable risk’ – Therapeutic services available to applicant – Strong family support – Applicant not ‘unacceptable risk’ – Bail granted – Bail Act 1977 ss 3AAA(1), 4, 4AA(3), 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M C Fisher | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr P Tehan QC | Melasecca Kelly & Zayler |
HIS HONOUR:
On 16 January 2020, I heard an application by Chris Mihalitsis for bail. On that day, I granted bail, subject to a number of stringent conditions, and indicated that I would publish brief reasons in due course. These are those reasons.
The applicant is presently charged with intentionally causing serious injury in circumstances of gross violence (1 charge — Schedule 2 offence); recklessly causing serious injury in circumstances of gross violence (1 charge — Schedule 2 offence); intentionally causing serious injury (1 charge — Schedule 2 offence); recklessly causing serious injury (1 charge); intentionally causing injury (1 charge); recklessly causing injury (1 charge); aggravated assault (1 charge); common assault (1 charge); possession of drugs of dependence (4 charges); possession of prohibited weapons (2 charges); driving a motor vehicle which displayed registration plates not issued to that vehicle (3 charges); and failing to comply with a direction of a police officer (1 charge). These offences were said to have been committed between 13 and 16 September 2019, but the charges relating to the infliction of injury upon the complainant all arose out of a drug-fuelled dispute between domestic partners on 13 September 2019.
The applicant is currently aged 41. About 18 months ago, his relationship with his wife had deteriorated, and he moved out of the family home. He relocated to Rye, where he met the complainant, and their relationship developed over time.
As the applicant was charged with a number of Schedule 2 offences, but not of a kind that would give rise to the need to show ‘exceptional circumstances’, he was required to overcome the less onerous ‘compelling reasons’ test.[1] In other words, he was obliged to point to matters of sufficient cogency and force to warrant the grant of bail. Included among these would, of course, be the delay between the date of arrest and the date of any trial, which, it was indicated to me, would not commence this year. Therefore, it was common ground that the applicant would have been in custody for perhaps in excess of a year and a half by the time the question of his guilt or innocence would be determined. In written submissions, it was noted that the charges involving allegations of ‘gross violence’ had only been added relatively recently. It was also submitted, with some force, that the evidence in support of that particular aggravating characteristic was by no means compelling.
[1]Bail Act 1977 ss 4AA(3), s 4C(1A).
During oral argument, senior counsel for the applicant submitted, quite fairly, that the offending had taken place ‘in the context of a toxic relationship’. It had also taken place in the context of both the applicant and the complainant using significant quantities of methamphetamine. That drug use had escalated considerably in the six months or so leading up to the offending.
Senior counsel for the applicant noted that the evidence led in support of this application strongly suggested that his client had since accepted responsibility for his part in what occurred. In support of that submission, senior counsel called two psychologists who had dealt with the applicant after his arrest, Mr Luke Armstrong, and Ms Amanda Brown.
Mr Armstrong provided a comprehensive report, and gave oral evidence before me to the effect that
[t]he circumstances around [the applicant’s] situation, his family circumstances, relationship circumstances, financial circumstances, all culminated in … this situation where … he was no longer coping, and … we’ve got a man that … reached the end, I would suggest of … a severe addiction process, and that’s typically what … we see happens, that usually that severe addiction process only ends in a major event like this.
Of the applicant’s peculiar relationship with the complainant, Mr Armstrong said that ‘it was … an intense relationship … again, magnified within the context of [substance abuse].’
Similarly, Ms Brown’s oral evidence was that
whenever I’ve spoken with [the applicant], his … response to why he thinks his drug use escalated, it’s generally been to do with the emotional dysregulation … to do with the two lawsuits, liquidation and the breakdown of his marriage. He just wasn’t able to manage that, and I think that was what had tipped him into the … excessive drug use that brought him … to this point.
Plainly, the applicant’s addiction to drugs, and in particular, methamphetamine, played a significant role in bringing about the violence that he exhibited towards the complainant. Both Mr Armstrong and Ms Brown gave evidence that if the applicant were to be granted bail, they would respectively provide him with comprehensive treatment services designed to deal with his drug addiction and personality disorder. I found their evidence to be impressive and cogent. I was satisfied on the basis of that evidence, and the other matters upon which senior counsel for the applicant relied, that ‘compelling reasons’ had been demonstrated.
I then had to consider whether, as counsel for the respondent contended, the applicant would pose an ‘unacceptable risk’ if released on bail.[2] Senior counsel for the applicant submitted that, in light of the circumstances highlighted by Mr Armstrong and Ms Brown, and also in light of the evidence given by the applicant’s wife, Ms Thelma Mihalitsis, ‘the root of [the applicant’s] problems will be addressed by the granting of bail on strict conditions.’
[2]Ibid ss 4D, 4E. See also, s 1B.
I note, in particular, that Mr Armstrong concluded that the imposition of appropriate conditions, coupled with measures to ensure that the applicant complied with the requirements so set out, would reduce the risk of his reoffending while on bail to be ‘low to moderate’.
Senior counsel for the applicant submitted that the proposed conditions would include regular reporting to police; attendance upon the respective offices of Mr Armstrong and Ms Brown, together with the applicant’s wife (who also gave evidence to the effect that she was willing to take him back into their home, and said that he had never been violent towards her or their children); drug urine screens twice a week; and a nightly curfew. In addition, there would be the usual conditions of bail, plus a sizeable surety of $100,000.
I noted that the applicant had no relevant prior convictions. I observed that he appeared to be on the path towards overcoming his drug problems, and that it would be in the interests of the community generally if he were to continue to receive counselling and specialised drug treatment. I noted also that he had a business, to which he could return, if released.
I therefore imposed bail conditions which, in my view, would significantly ameliorate any risk that the applicant posed to the safety and welfare of members of the public. There was no suggestion that the applicant would not attend court to meet his bail, and that consideration did not feature in my deliberations.
It was for these reasons that I determined to grant bail.
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