Re Application for bail revocation re Kaleb Silcock
[2017] VSC 536
•8 September, 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0184
| IN THE MATTER of the Bail Act 1977 | |
| AND | |
| IN THE MATTER of an Application for bail revocation re Kaleb SILCOCK | Applicant |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 8 August 2017, 16 August 2017, 18 August 0217, 28 August 2017, 29 August 2017, 5 September 2017 |
DATE OF RULING: | 8 September, 2017 |
CASE MAY BE CITED AS: | RE Application for bail revocation re Kaleb Silcock |
MEDIUM NEUTRAL CITATION: | [2017] VSC 536 |
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CRIMINAL LAW – Application for bail – Show cause – Applicant not receiving adequate treatment for schizophrenia in custody – Significant criminal history linked to applicant’s mental illness and polysubstance abuse - Bail granted on a provisional basis and subject to the implementation of an inpatient treatment order under the Mental Health Act 2014 (Vic) – Subsequent breaches of bail conditions – Absconding from mental health facility to which Applicant was bail – Application for bail revocation – Bail revoked – No adequately secure facility available capable of treating the Applicant while on remand – High risk of reoffending – Application subject to future judicial monitoring.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms. O Thompson | Victorian Legal Aid |
| For the Respondent | Mr. M Aitken | Victorian Police |
HIS HONOUR:
This is an application for bail filed in this Court on 1 August 2017 by Kaleb Silcock, a 20-year-old indigenous man from the Corio area near Geelong. He was born on 9 June 1997. As a result of the charges he faces, he has been in custody at the Melbourne Assessment Prison since 15 July 2017.
This bail application has demonstrated the extremely concerning shortage of appropriate psychiatric treatment regimens for those who badly need them and who, for various reasons, need to be kept in custody. It also demonstrates the extreme pressure and shortage of resources that apply to organisations called upon to treat those with significant psychiatric illnesses particularly including schizophrenia with psychosis. One of the triggers for such illnesses can often be polysubstance abuse. Simple imprisonment, whilst a short term measure which will temporarily protect the community, is by no means the long term answer. These are not only problems for the criminal justice system – they are social problems for the entire community.
The applicant has a longstanding history of drug abuse and has been diagnosed with schizophrenia as well as mental and behavioural disorders due to his consumption of cannabis and methylamphetamine. Clearly this man is in urgent need of treatment and, notwithstanding the circumstances of his offending and his prior history, some steps must be taken to have him treated in a way which will ameliorate his adverse mental health.
In relation to this application, the applicant faces a number of charges. The charges can be identified as being in seven groups. The first group are charges arising from an allegation that in July 2017 the applicant stole a car and was involved in a police pursuit resulting in the car being crashed. Charges are also laid in relation to various items which were seized from the vehicle. The informant in that matter is a police officer by the name of Howe.
The second group of charges concern the applicant allegedly gaining entry to several cars in a particular neighbourhood, stealing items and making threats to people on 7 April 2017. Those charges are at the instigation of the informant Killeen.
The next group of charges relate to allegations that in January 2017 the applicant stole items from two service stations. The informant in that matter is Korevaar.
Next, there is a group of charges relating to allegations that the applicant stole liquor from a shop on 2 June 2017. The informant in that matter is Mr Coffey.
The next group refer to allegations that the applicant stole a car that had been left open and unattended in a service station on 7 May 2017. Mr Clayton is the informant in that matter.
In the next group of charges the allegations are that the applicant damaged property to the value of $400 at the Community Corrections Office in Geelong, and the informant is Martin.
Finally, the allegations in the charges laid by the informant Trevascus are that the applicant was unacceptably absent from 12 appointments scheduled pursuant to a Community Corrections Order dated 17 February 2017.
On 10 April 2017, bail was granted by the Magistrates’ Court to the applicant. The applicant was then admitted to the Swanson Centre which, as I understand it is part of Barwon Health, under an assessment order. A temporary treatment order was made and, following a tribunal hearing, he was discharged on a Community Treatment Order on 2 May 2017.
I note that the evidence indicates that the Swanson Centre at Barwon Health is not a secure facility, however there is a power pursuant to ss 350 and 356 of the Mental Health Act 2014 to apprehend compulsory inpatients who are absent without approved leave.
All of these matters were listed to be heard before the Geelong Magistrates’ Court on 15 August 2017 but were adjourned to 5 September 2017. As I understand it, the matters were further adjourned but I have not been provided with the date of the next hearing. Counsel for the applicant needed to obtain further instructions from the applicant when his mental health has stabilised and could be visited in custody. That has not yet occurred.
Pursuant to s 4(4)(a) and (d) of the Bail Act 1977, to succeed in this application, the applicant is required to show cause as to why his detention in custody is not justified. He is in that position because it is alleged that he committed an indictable offence whilst awaiting trial for another indictable offence. On 15 July and 17 July, applications by the applicant for bail were refused, initially by a Bail Justice and then by the Geelong Magistrates’ Court and again by the Geelong Magistrates’ Court on 27 July 2017.
In addition to these numerous matters the applicant has a prior criminal history numbering some 144 offences. Some of those offences have resulted in conviction and others in diversion. Those prior offences began in December 2010 when the applicant was 13 and, in summary, his record includes eight counts of committing an indictable offence whilst on bail, three counts of breaching conduct conditions of bail, 79 counts of dishonesty-related offences (mostly involving theft), nine assaults and offences against the person and 23 driving-related offences.
The applicant was still subject to a Community Corrections Order and that order expired on 17 August 2017.
The evidence indicates that the applicant has a long history of hospital admissions for his psychiatric illnesses. He is currently prescribed medication and had been attending regular appointments at Barwon Health with a case manager and psychiatrist under a Community Treatment Order. That psychiatrist is Dr McConnell, who I will return to shorty. That community treatment order expired on 30 August 2017. The applicant also has a history of drug and alcohol abuse.
In support of the application for bail a number of factors were relied upon to demonstrate that the applicant had shown cause why his continued detention in custody was not justified and to address the unacceptable risk which has been previously raised. The first of those factors is that the applicant has schizophrenia as well as a mental and behavioural disorder, due primarily to cannabis and methylamphetamine use. I am told by his counsel that his treatment in custody is compromised due to the long delay at the Melbourne Assessment Prison Acute Unit and also at the Thomas Embling Hospital. The basis on which he would be admitted to Thomas Embling is not yet clear to me. Whilst in custody in recent weeks he has displayed self-harm inclinations and also has indicated a suicidal ideation. This is set out in the report dated 31 July 2017 from the Geelong Community Correctional Service.
There was a proposal that if he were to be released on bail the applicant would be transported to the Swanson Centre at Barwon Health by variation of his community treatment order to an inpatient treatment order so that he could receive the treatment he needs for his mental illness. It was proposed that if he were to be discharged by the order of the Mental Health Tribunal he would then reside with his mother at 150 Purnell Road, Corio.
The applicant’s youth is also relied upon in support of the application, he being 20 years of age. Much of his prior offending was committed as a child.
The applicant also points to s 3A of the Bail Act 1977, which provides matters to be taken into account where indigenous persons are applying for bail. It is also further submitted that the applicant would be unlikely to receive a custodial sentence for the matters in question that exceeds the likely period in remand. I am not at all sure that that is true.
It is also submitted that if he were not an inpatient at Barwon Health the address in Corio with his mother where it is proposed that he would reside is a stable location.
Affidavits were filed in relation to this matter in support of the application on 1 August 2017 and 14 August 2017. The later affidavit indicates that some of the charges, including those where the informant is Clayton and relating to the theft of a motor car on 7 May 2017, will proceed as a plea.
The matter where Martin is the informant, which relates to the damage to the Community Corrections Office at Geelong on 28 June 2017, is not the subject of instructions at this stage. The deponent, solicitor from Victoria Legal Aid, indicates that the applicant has no memory of these matters. Further instructions are being obtained in relation to the matter where the informant is Galeen.
The charges in relation to theft from two services stations where the informant is Corvar will proceed as a plea.
The charges were Coffey is the informant – which relate to theft and attempted theft on 2 June 2017 - are not yet the subject of instructions.
A further affidavit was also deposed by Rachel Semmens, who is the Court Liaison Clinician at Barwon Health and part of the health treating team for the applicant. She described the process that would, and did, occur if he were to be released on bail. That involved Forensicare nursing staff at the Melbourne Assessment Prison initiating an Inpatient Assessment Order on the morning of the bail application. The order would be based on their assessment that Mr Silcock meets the criteria for compulsory treatment under the Mental Health Act 2014 and, in particular pursuant to s 29 of the Act. That Act provides that a person can be made the subject of an assessment order if that person appears to have a mental illness and is in need of immediate treatment to prevent a serious deterioration in that person’s mental or physical health or serious harm to themselves or another person.
The assessment order required that Mr Silcock be transported via ambulance to a designated mental health service.
The arguments against the grant of bail related, as often is the case, to the likelihood of the applicant committing an offence whilst on bail as well as him being an unacceptable risk of endangering the safety of the public, coupled with his drug addiction. The respondent pointed out that the applicant has 12 unacceptable absences from meetings as part of his recent community corrections order and has, on eight occasions, been found guilty of offences relating to failing to answer bail.
This matter first came on for hearing before me on 8 August 2017. On that day it became clear that because the applicant was in custody the Community Treatment Order had been revoked. It was submitted that I should make an inpatient treatment order under the Mental Health Act 2014 to enable the applicant to be assessed at Royal Melbourne Hospital before being transferred to the Swanson Centre at Geelong. I indicated to counsel that I wanted to see evidence on affidavit and so the application was adjourned to 16 August 2017.
On 16 August 2017, evidence was called from Rachel Semmens to whom I have previously referred. She had met with the applicant twice and confirmed that if I made the inpatient treatment order, the applicant would be transported to Royal Melbourne Hospital and assessed. After hearing further submissions and evidence, I adjourned the matter to Friday 18 August 2017 and made the following orders:
(i)That the application for bail be adjourned until Friday 18 August at 10.30am, the matter being part‑heard;
(ii)That the applicant not leave the Supreme Court of Victoria precinct on this day, 16 August 2017, otherwise than for the purpose of being transported by ambulance to the Royal Melbourne Hospital for assessment and treatment as an inpatient;
(iii)That the applicant remain at the Royal Melbourne Hospital, or if that facility is unable to house him, Barwon Health Geelong, until his appearance before me on Friday 18 August 2017 at 10.30am;
(iv)That the applicant's grandfather continue to comply with the undertaking he has just given to the Court that he will transport the applicant from hospital to the Supreme Court of Victoria for the applicant’s appearance before me on Friday 18 August at 10.30am.
By Friday 18 August 2017, the applicant was again subject to a compulsory treatment order and residing at the Swanson Centre. The Court was informed at that time that he was not well enough to attend for the further hearing of his application. I then varied the bail conditions to enable him to remain at Swanson Centre for treatment until Friday 8 September 2017.
On 28 August 2017, an application was made on behalf of the informant that my orders for bail be revoked. Based on the affidavit of First Constable Paul Howe, that application was made because on four occasions, in breach of my orders, the applicant left the Swanson Centre and, although returning on at least two occasions, was severely drug affected when he did so. On one occasion he had climbed onto the roof and over a fence to escape from the Centre. Though he returned, he was incoherent and unable to hold a conversation. On the basis of that material on 28 August 2017, I vacated the order granting limited bail and adjourned the question of the permanent revocation of bail to the next day. On that day the matter needed to be again adjourned to enable a subpoena to be served on Dr Russell McConnell who, for the last eight weeks, has been the applicant’s treating psychiatrist. The applicant remained in custody.
On 5 September 2017, the matter came on once more and Dr McConnell gave evidence outlining his diagnosis of the applicant’s condition which is schizophrenia, polysubstance abuse and anti-social personality traits. One of the major issues was the high dose of Clozapine that the applicant required and the fact that, with potentially significant associated side effects, the doctor understood that amount of Clozapine would not be available to the applicant in custody because the required amount of supervision could not be provided.
The ideal circumstance at present would be for the applicant to be fully treated in a place that was secure and from which he would not be free to leave. The Swanson Centre is not such a facility. Thomas Embling would be the ideal solution but as with other institutors the delay is significant and the mechanism by which he could be placed in that establishment has not been made clear to me in the course of this application. I requested my Associate make enquiries with Sovereign House in Ballarat with the result that that establishment is, if anything, less secure than the Swanson Centre in Geelong and that, in all events, there were no beds available. The waiting list is of the order of six months.
The dilemma thus facing the Court is that if the applicant is released on bail with any level of autonomy, he will almost certainly breach any conditions, continue to use drugs and probably commit further offences. That is so because of his condition which is unable to be adequately treated in custody. I have not been provided with no other satisfactory option.
Therefore, and with considerable regret, I formally and temporarily revoke the orders for bail that I made on 16 and 18 August 2017. That is necessary because the applicant has not shown cause as to why his detention in custody is not justified. The risk of the applicant breaching conditions of bail and committing further offences is unacceptable.
I request, however, that in the forthcoming period the applicant be provided with as extensive and effective treatment for his psychiatric condition as possible. Having said that, I will review the matter again on 22 September 2017 with particular reference to the delay before the matter can be dealt with in the Magistrates’ Court and the level and efficacy of the treatment of the applicant over that period whilst he is in custody. I allow for the possibility that if the delay in his matters being finalised in the Magistrates’ Court is significant and the treatment he receives in the meantime is inadequate I will reinstate orders for bail. I am not prepared to simply leave this man at the mercy of the system.
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