Re Application for Bail by Rebecca Dillon
[2019] VSC 80
•22 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0301
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Rebecca DILLON | |
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| JUDGE: | MAXWELL P |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 December 2018 |
| DATE OF ORDERS: | 5 December 2018 |
| DATE OF JUDGMENT: | 22 February 2019 |
| CASE MAY BE CITED AS: | Re Application for Bail by Rebecca Dillon |
| MEDIUM NEUTRAL CITATION: | [2019] VSC 80 |
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CRIMINAL LAW – Application for Bail – Charges of criminal damage, causing false fire alarm to be given, committing an indictable offence whilst on bail – Applicant on bail for persistent breaches of family violence intervention order at time of offending – Schedule 2 offences – Exceptional circumstances and unacceptable risk test applied – Applicant unlikely to receive custodial sentence – Exceptional circumstances conceded by respondent – Whether unacceptable risk established – Surrounding circumstances – Intellectual disability – Pattern of behaviour demonstrated risk of reoffending – Not unacceptable risk – Lower end of seriousness – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA, 30B, sch 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Fitzgerald with Ms H Canham | Victoria Legal Aid |
| For the Respondent | Dr I Freckelton QC | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
On 26 October 2018, Rebecca Dillon (‘the applicant’) was charged by police with the offences of criminal damage, causing false fire alarm to be given,[1] and committing an indictable offence whilst on bail. These charges arise out of events alleged to have occurred the previous day. At the time of the alleged offending, the applicant was on bail in respect of nine outstanding matters, referred to below.
[1]This charge was later withdrawn.
At the time of the alleged offending, the applicant was subject to a family violence intervention order (‘FVIO’), naming her ex-partner, Leigh Roach, and her daughter (‘K’) as the affected family members. This order expires on 13 June 2019.
The applicant was in custody from 26 October 2018 onwards. She was refused bail in respect of the present charges in the Magistrates’ Court on 26 October, 13 and 20 November 2018. On 13 November 2018, her bail was revoked in relation to the balance of the outstanding matters.
On 23 November 2018, the applicant applied to this Court for a grant of bail. At that time, all charges formed part of a consolidated plea which was listed for further plea and sentence on 18 December 2018 at the Melbourne Magistrates’ Court.
The offence of committing an indictable offence whilst on bail is a Schedule 2 offence.[2] Because the offence is alleged to have been committed while the applicant was on bail for another Schedule 2 offence — persistent contravention of a FVIO[3] — ss 4AA(2)(c)(i) and 4A of the Bail Act 1977 (the ‘Act’) required that bail be refused unless the Court was satisfied that exceptional circumstances existed justifying the grant of bail, and that there was no unacceptable risk.
[2]Bail Act 1977 s 30B, sch 2 item 30.
[3]Ibid sch 2 item 19, and also committing an indictable offence while on bail, contravention of a conduct condition of bail, and contravention of a FVIO involving the applicant using violence in circumstances where she had been found guilty of an offence involving violence within the preceding 10 years, namely recklessly causing injury on 18 June 2012 (see the Act ss 30A, 30B, sch 2 items 18(a), 30).
At the conclusion of the hearing, I announced that I was so satisfied and that bail would be granted. I said that I would publish my reasons subsequently. These are those reasons.
The alleged offending
By way of background, the applicant commenced a relationship with Leigh Roach when she was pregnant with K. Although Leigh is not K’s biological father, he has been involved in her care since she was born. The applicant and Leigh are no longer in a relationship, and K remains in the care of Leigh’s parents.
As noted earlier, the applicant is currently the respondent to a FVIO where Leigh and K are the affected family members. The applicant has also previously been the respondent to a FVIO where Leigh’s parents are the affected family members, but no active FVIO remains in place in relation to them.
The matters in respect of which the applicant sought bail are summarised and set out in chronological order of offending as follows.
Date of charge: 10 January 2016
On 10 January 2016, following a verbal dispute with Leigh’s mother, the applicant punched a hole in one of the walls of the Roach family residence. The applicant, at the time, was living at these premises.
Later that same day, Leigh went to collect K from the applicant, and informed her that police were at his parents’ home in relation to damage caused earlier in the day. As Leigh was placing K in his vehicle, the applicant took Leigh’s XBOX out of his vehicle and threw it to the ground.
The applicant and Leigh subsequently returned to the Roach family residence. Leigh’s father refused to allow the applicant inside, at which time the applicant kicked the security door, causing the wire mesh to detach from the door frame. The applicant proceeded to Leigh’s vehicle, and caused damage by pulling off the side mirrors, number plates, and stone guard protector.
Date of charge: 19 January 2016
On 16 January 2016, Leigh drove to a friend’s premises. Whilst there, the applicant, who had been at a nearby park, ran toward Leigh’s vehicle yelling, ‘Leigh wait, Leigh wait’. The applicant approached Leigh’s vehicle and opened the rear door, pulling K out of her car seat. Leigh retrieved K from the applicant and placed her back in the vehicle before driving away.
On 18 January 2016, Leigh received 11 missed calls and three text messages from the applicant, stating, ‘I’m going to the police and DHS Leigh’, ‘Babe call me plz’, and ‘Is it safe to talk’.
Date of charge: 6 March 2016
On 21 February 2016, the applicant engaged in a confrontation with Leigh at a service station. It is alleged that the applicant took Leigh’s mobile phone and threw it to the ground. She then pushed Leigh and pulled him by the shirt, before pulling Leigh’s sunglasses from his face and throwing them under a passing vehicle.
Date of charge: 10 February 2017
On 3 and 4 March 2016, the applicant was observed by Leigh’s parents sitting approximately 120 and 140 metres respectively from the Roach family residence, in breach of an active FVIO and bail conditions.
Date of charge: 10 February 2017
A credit card belonging to someone else was mistakenly delivered to that person’s former address in Werribee. The applicant was a resident of that address at the time the card was delivered. She made a number of purchases and attempted purchases using the victim’s credit card. The total value of these purchases was $294.25.
Date of charge: May 2017
On 15 July 2016, the applicant sent a number of photos to Leigh’s mother and attempted to call her in breach of an active FVIO.
Date of charge: 27 April 2017
The applicant breached an active FVIO on 30 and 31 July 2016 by calling Leigh.
On 14 August 2016, she breached an active FVIO by messaging Leigh’s mother to say, ‘Hey, thanks for letting me have [K] at my 21st on Friday night, hope all is well big hugs X.’
On 10 January 2017, Leigh received a friend request on Facebook from ‘Smith Beck’, with a profile picture matching the applicant’s appearance.
Date of charge: 20 April 2017
Between 15 and 20 November 2016, the applicant sent numerous messages to Leigh via ‘Facebook Messenger’, in breach of an active FVIO.
Date of charge: 22 November 2017
On 14 April 2017, Leigh was in the driveway of a friend’s premises when the applicant drove slowly past. Leigh’s friend alerted him to the applicant’s presence, and Leigh subsequently drove out of the driveway and proceeded home. The applicant followed Leigh for approximately 300 to 400 metres.
The 2018 offence
At the time of the offending, the applicant was residing at accommodation in Clifton Hill, provided through specialist community mental health service provider ‘Mind Australia’.
On 25 October 2018, the applicant became involved in a verbal dispute with a worker at her residential facility. The applicant reacted by throwing furniture, paint and eggs throughout the residence, which caused the worker to take the only other resident to safety by leaving the premises. Upon returning, the worker observed a smashed window and fire extinguisher material throughout the premises.
The applicant
The applicant is a 23-year-old woman with an intellectual disability. Her full-scale intelligence quotient is 61. She has Aboriginal heritage, but does not identify herself as Aboriginal.
The applicant had a troubled upbringing. Her father committed suicide only days after her birth, and her mother struggled to provide proper care due to her own struggles with polysubstance use, schizophrenia and bipolar disorder. As a young adolescent, the applicant was placed in the care of DHHS, moved from home to home, and ultimately became involved with negative peers, substance use and criminal activity.
At the age of 18, the applicant secured accommodation and experienced a relative period of stability and independence. Whilst at this accommodation, the applicant commenced an intimate relationship, which resulted in her pregnancy with K. This relationship ended, and the applicant soon commenced a new relationship with Leigh Roach.
The applicant moved into the Roach family residence and later gave birth to her daughter. Whilst living at the family residence, the applicant became involved in a verbal argument with Leigh’s mother, which resulted in the applicant causing damage to the home and ultimately the imposition of a FVIO in respect of Leigh, K, and Leigh’s parents. K remains in the care of the parents.
The applicant initially moved to shared accommodation with a friend, before later transitioning to accommodation provided through Anglicare and Mind Australia. At the time of her arrest and incarceration, the applicant was residing at Mind Australia accommodation in Clifton Hill and engaging in weekly supervised visits with her daughter at the Roach family residence.
The applicant has a criminal history, without conviction, dating back to 2010 and including offences of violence, threats to kill, resisting police, dishonesty and property damage. Relevantly, the applicant’s criminal history includes four offences of failing to answer bail, dated 22 July 2013, 19 February 2015 (two counts) and 29 September 2015. Save for one instance, all matters contained within the applicant’s criminal history were later dismissed following successful compliance with good behaviour bonds.
The applicable legislation
Section 4 of the Act makes plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail. Section 4AA of the Act sets out circumstances in which a ‘2-step test’ applies to the consideration of a grant of bail. Section 4AA(2) dictates that the ‘exceptional circumstances test’ applies to a decision whether to grant bail to a person accused of a sch 2 offence if the offence is alleged to have been committed while on bail for any sch 1 or 2 offence — as noted earlier, the 2018 charge — committing an indictable offence whilst on bail[4] is a sch 2 offence. It is alleged to have been committed while on bail for another sch 2 offence, namely, persistent contravention of a FVIO.[5] Accordingly, pursuant to ss 4A(1) and 4A(1A) of the Act, the Court was required to refuse bail unless satisfied that exceptional circumstances existed that justified the grant of bail. The burden of satisfying the Court that exceptional circumstances rested with the applicant.[6]
[4]The Act s 30B and Item 30 of sch 2 offences.
[5]The Act sch 2 item 19, and also committing an indictable offence while on bail, contravention of a conduct condition of bail, and contravention of a FVIO involving the applicant using violence in circumstances where she had been found guilty of an offence involving violence within the preceding 10 years, namely recklessly causing injury on 18 June 2012 (see the Act ss 30A, 30B, sch 2 items 18(a), 30).
[6]Ibid s 4A(2).
In considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’.[7] This draws attention to s 3AAA of the Act, which sets out the following matters that a court must take into consideration:
[7]Ibid s 4A(3).
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the ‘unacceptable risk test’ pursuant to s 4D(1)(a) of the Act. Further, pursuant to s 4E(1) of the Act, the Court must refuse bail if the prosecutor satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) requires the Court to again have regard to the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
In addition, pursuant to s 5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is an FVIO, or any other family violence safety notice or domestic violence order, in force made against the applicant. Additionally, the Court must consider whether there would be a risk that the applicant would commit family violence if released on bail and whether that risk could be mitigated.[8]
[8]Ibid s 5AAAA(2).
Finally, when interpreting the Act, the Court is required by s 1B of the Act to take into account, inter alia, that:
(1) The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty;
…
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Consideration
As noted earlier, the first statutory hurdle for the applicant was to show the existence of exceptional circumstances justifying the grant of bail. The principal matter relied on for the purpose was that, unless she were granted bail, she would have been on remand for 58 days by the time she came to be sentenced on 18 December.
The applicant submitted that, given her personal circumstances and the nature of her offending, she was most unlikely to receive a custodial sentence. It was pointed out that the reason her consolidated plea hearing on 20 November 2018 had been adjourned was to enable the preparation of a ‘Justice Plan’ pursuant to s 80(3)(c) of the Sentencing Act 1991. As the applicant correctly submitted, this signified that the sentencing court was considering a community correction order or release on adjournment without conviction.[9]
[9]Sentencing Act 1991 s 80(1).
The respondent conceded that the applicant was unlikely to be sentenced to a period of imprisonment. On that basis, it was said, the respondent did not seek to contradict the applicant’s contention that exceptional circumstances existed.
This was, with respect, a proper concession to make. In a series of first instance decisions of this Court, judges have viewed as very significant in deciding whether continued custody is justified the fact that, if the applicant for bail remained on remand, he/she would be likely to serve time in custody in excess of any sentence which might subsequently be imposed.
In that regard, senior counsel for the respondent helpfully drew attention to one such decision, that of J Forrest J in Re Kyle Magee.[10] The question for consideration there was whether the applicant for bail had shown cause as to why his detention in custody was not justified. His Honour viewed as ‘highly significant’ the fact that the applicant was unlikely to be sentenced to a custodial term longer than ‘the ten weeks he has already served by way of putative pre-sentence detention’.[11]
[10][2009] VSC 384 (‘Magee’).
[11]Ibid [20]. See also Re Application for Bail by Patricia Mitchell [2013] VSC 59 [12] (T Forrest J); Re Application for Bail by RS [2013] VSC 350 [21] (Elliott J).
The respondent’s opposition to the application for bail rested on what was said to be an unacceptable risk that the applicant would, if released on bail, commit an offence or offences while on bail. The respondent relied on the range of offences for which the applicant was still to be sentenced, as set out earlier, and on her extensive criminal history dating back to 2010, mostly in the Children’s Court. As already noted, she has convictions for obstruction of or damage to property, attempted arson, threat to inflict serious injury, threat to kill, assault, theft, burglary and multiple charges of failure to answer bail.
Given the applicant’s record, it could not be doubted that there was a risk of further offending. I was not, however, persuaded that the risk was unacceptable. First, and most importantly, until the alleged criminal damage offence in October 2018, there had been a period of 18 months without the applicant facing any charge whatsoever. As senior counsel for the respondent properly conceded, that was a very significant indicator of the applicant’s prospects for rehabilitation and — I would add — of her ability to be in the community without offending.
Secondly, as can be seen from the summary set out earlier, the offences for which she is to be sentenced are mostly from a much earlier period and of a relatively minor nature. Breaches of intervention orders are always to be taken seriously but, as counsel for the respondent accepted, the conduct involved is at the least serious end of the scale.
Finally, I refer again to what Fox J said in Burton v The Queen,[12] which I first cited in Asmar,[13] as follows:
It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime while he is on bail. It should not readily be assumed that he might commit an offence, or further offence. If he does, he can be dealt with by the criminal law. There are, however, situations in which the consequences of any crime he commits while on bail may be so serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration.[14]
As J Forrest J said in Magee,[15] after citing that passage:
A citizen should not be detained arbitrarily because there is a real risk of him committing a further offence of a relatively minor nature; one that the criminal law will punish if committed.[16]
[12](1974) 3 ACTR 77 (‘Burton’).
[13][2005] VSC 487 [26].
[14]Burton (1974) 3 ACTR 77, 78.
[15]Magee [2009] VSC 384.
[16]Ibid [24].
Charter of Human Rights and Responsibilities Act 2006
On 26 November 2018, the applicant filed a Notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) under the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’).[17] It was submitted by the applicant’s solicitor that the present application raises questions in respect of the interpretation of ss 4A, 4B[18] and 3AAA of the Act. Both the Attorney-General and VEOHRC indicated an intention not to intervene in this matter.
[17]Submissions in support of the Charter Notice were filed on 30 November 2018. Any submissions in reply were due from the respondent by 4.00pm on 4 December 2018.
[18]I note that there is no ‘s 4B’ in the Act, and it is my understanding from reading the supporting submissions that the Notice was intended to be made in relation to s 4E of the Act.
Counsel for the applicant had prepared a detailed and helpful submission which identified the interpretation questions said to arise, as follows:
(a) Does s 32 of the Charter require the tests in ss 4A and 4E of the Act to be interpreted in a manner that only allows bail to be refused where to do so would be a reasonably necessary limit on Charter rights, in accordance with s 7(2) of the Charter?
(b) Do the applicant’s Charter rights form part of the ‘surrounding circumstances’ to which the Court must have regard when making a decision under ss 4A and 4E of the Act, where those rights could be limited by a decision to refuse bail?
(c) Does s 6(2)(b) of the Charter require the Court when exercising the discretions under ss 4A and 4E of the Act to have regard to the content of the applicant’s Charter rights as part of the proper exercise of those discretions?
It was submitted that, while some of these questions had been answered prior to the recent amendments to the Act, they had not been considered with respect to the current provisions. The applicant further submitted that each of the three questions should be answered in the affirmative.
I indicated in the course of argument that I would very likely be in a position to decide the application for bail without needing to address the questions of interpretation. As appears from reasons set out above, that proved to be the case. Since those questions do not fall for decision, it would be quite inappropriate for me to express any views. The questions must await a case where they need to be answered.
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