Re Barahona
[2021] VSC 852
•15 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0364
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an application for bail by DAVID BARAHONA |
---
JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2021 |
DATE OF JUDGMENT: | 15 December 2021 |
CASE MAY BE CITED AS: | Re Barahona |
MEDIUM NEUTRAL CITATION: | [2021] VSC 852 |
---
CRIMINAL LAW – Application for bail – Charges of reckless conduct endangering life, making threat to kill, unlawful assault, criminal damage, reckless conduct endangering serious injury and recklessly causing injury – Whether a compellable reason exists justifying the grant of bail – Whether unacceptable risk – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4C, 5AAAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Wong | Victoria Legal Aid |
| For the Respondent | Mr N Watt | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
By application filed 9 December 2021, David Baharona (‘the applicant’) seeks bail in this Court in relation to nine charges brought by Senior Constable Tolley for alleged offending between April and November 2021. The charges involve serious offences, including reckless conduct endangering life, making a threat to kill, unlawful assault, criminal damage, reckless conduct endangering serious injury, and recklessly causing injury. Some of the charges are alternatives.
The applicant has been on remand since he was arrested and charged on 7 December 2021. He made a bail application in the Frankston Magistrates’ Court on this date, which was adjourned part-heard until 21 December 2021.
What follows is a summary of the allegations made by the prosecution.
The alleged offending
Background
The applicant and AM were in a casual relationship for three years and lived separately. AM was living with her four daughters from previous relationships and the applicant was living with his sister in Rosebud.
The allegations
Charges 1 to 4
At 1:00 am on 22 April 2021, it is alleged that the applicant attended AM’s home and asked her to come outside where they argued about AM contacting other women he was allegedly seeing.
The applicant had a knife and told AM he would slash her tyres. AM was worried the applicant was drug affected and would wake the children so she began walking with him towards his car. He verbally abused her and pushed her neck and chest causing her to fall to the ground.
They then sat in the applicant’s car and he asked to look through AM’s phone. She offered to show him but refused to hand the phone over, so he grabbed it and threw it out the window. He then drove off at speed through an intersection, without slowing or looking for traffic, whilst saying he was going to kill them both, causing AM to fear they would crash. The applicant stopped the car at a dead end and they continued arguing. The applicant then grabbed and squeezed AM’s neck so hard she thought it was ‘going to snap’ and feared she would die. She felt ‘immense pressure’ in her head and behind her eye but could not stop him as her arms were ‘flopping’ uncontrollably.
AM eventually calmed the applicant and they returned to her home. He handed her the knife and left, later sending her a message threatening to kill her if she did that again.
AM attended hospital the next morning with bruising. She disclosed the assault and spoke with a social worker but declined police involvement.
The Department of Health and Human Services were notified due to concerns over the safety of the children and AM. AM was referred to support services which facilitated crisis accommodation.
Charges 5
On 5 September 2021, the applicant and AM argued in the applicant’s bedroom. When AM went to leave, the applicant slapped her to the head and kicked her legs, causing her to fall and leaving a large bruise.
Charges 6 to 8
On 9 November 2021, AM attended the applicant’s house after an argument, discreetly recording on her phone as she entered his bedroom. He grabbed her phone and asked for the passcode, however, she declined so he snapped it in half and ripped out the SIM card.
He then pushed her to the bed, placing his weight on top of her and restraining her in a ‘sleeper hold’ with his arm around her neck. He repeated this several times.
On 12 November, AM attended her general practitioner after feeling pain for several days caused by soft-tissue injuries to her back and shoulder.
I reiterate that the matters just outlined are allegations at this stage and none of the offending has been proven.
Investigation and arrest
On 11 November, at the Frankston Magistrates’ Court, a warrant for a Family Violence Intervention Order (‘FVIO’) was issued against the applicant. At 1:00 pm, he was arrested. He was bailed with family violence exclusion conditions and to appear at that Court on 24 November. On 25 November, a final FVIO was granted and served on him.
When he was arrested on 7 December 2021, the applicant made a mostly ‘no comment’ record of interview and stated that he was innocent. However, he did admit to attending AM’s home on 22 April with a knife intending to slash her tyres and told the informant he believed AM was stalking him online.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[1]
[1]Bail Act 1977 s 1B(2).
The applicant is charged with making a threat to kill in a family violence context, which is a Schedule 2 offence.[2] The parties both agree that the Court must be satisfied that a compelling reason exists that justifies the grant of bail.
[2]Ibid sch 2, item 7.
In determining whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’, including those set out in s 3AAA(1) of the Act.[3]
[3]Ibid s 4C(3).
If satisfied that a compelling reason exists, the respondent alleges the applicant must be refused bail as he is an unacceptable risk of endangering the safety of another, interfering with witnesses, or otherwise obstructing the course of justice. In considering these risks, again, the Court must have regard to the surrounding circumstances.[4]
Intervention orders and family violence risk
[4]Including those set out in s 3AAA of the Act.
Section 5AAAA of the Act requires the Court to inquire with the prosecutor as to whether there are any intervention orders in place and whether there is a risk that the applicant will commit family violence if bailed and whether the risk could be mitigated.
That has occurred and I have already outlined the position in relation to the existence of a FVIO. The respondent reiterates there are a number of family violence risk factors in this matter, including the alleged use of weapons, threats to harm or kill, strangulation, drug use, and controlling behaviour.
The applicant’s personal circumstances
The applicant is 30 years old and has a close relationship with his parents and two sisters. He lost his younger brother in a car accident in 2016, leading to a deterioration in his mental health and an attempt on his own life in March 2020.
In support of the application for bail, the applicant relies on four matters in particular. Firstly, the existence of family support and a surety offered by his elder sister. Secondly, the delay which would be associated before the matter can be heard for trial. Thirdly, there is no history of relevant criminal offending or breaches of any orders, including a breach of the FVIO naming AM as the affected family member. Fourthly, this is the applicant’s first time in custody, which he has been required to undergo in particularly onerous circumstances.
In relation to the strength of the prosecution case, the applicant submits that this cannot be determined at this stage and that he is entitled to the presumption of innocence.
It is submitted that the applicant has mental health issues making him vulnerable in custody and I heard evidence from his sister, Ms Angie Guzman, to the effect that she has noted a deterioration in the applicant’s mental health over the last couple of years. The applicant notes as a significant factor in support of his application the support of his parents and sisters, who attended Court for the hearing.
Although it was originally proposed that the applicant would continue to reside with one of his sisters at an address in Rosebud, it has now been proposed that, if granted bail, the applicant will live with his parents, elder sister, and his adult nephew at another address in Rosebud. Ms Guzman has arranged for the applicant to attend an appointment with a general practitioner on 17 December 2021 and a psychologist on 13 January 2022, which were the earliest dates available for consultation.
The applicant notes that, as at 7 December, he was to undertake 14 days of quarantine and that has resulted in significant and onerous restrictions on his freedom.[5]
[5]I note that as a result of him being in isolation, on the present application the applicant could only appear by way of audio connection which presented some difficulties, although the application was able to be heard in those circumstances and with the agreement of the parties.
The applicant also notes that should he be granted bail, he has employment to go to in addition to the family support and stable accommodation.
It is also noted that Ms Guzman has proposed to provide a $5,000 cash surety in support of the application for bail. The applicant proposes a number of bail conditions to mitigate the risks, including as to where he will live and a surety.
The respondent’s submissions
The respondent initially opposed the application on the basis that the applicant had not demonstrated any compelling reason that justified the grant of bail, however, in the light of the evidence of Ms Guzman, both which was foreshadowed in an affidavit of the applicant’s solicitor dated 13 December 2021 and expanded in oral evidence before me, the respondent does not oppose the Court making a finding of a compelling reason.
The respondent maintains that it is for the Court to determine both the existence of a compelling reason and also whether there is an unacceptable risk of the applicant endangering the safety or welfare of another person, interfering with a witness, or otherwise obstructing the course of justice. The respondent points to the fact that AM has told police that she fears for the safety of herself and her children; is concerned about the applicant’s mental health and drug use, saying he is unpredictable when using drugs; has sent pictures of himself self-harming; and has made threats of suicide. She is ‘extremely unsettled and anxious’ about where she will live due to his threats that he and his associates may find her.
The informant remains concerned about the safety of AM due to the serious nature of the allegations, the extent to which AM can be safely accommodated in crisis accommodation for any extended period, and the applicant’s history of threatening to kill AM and himself.
Decision
The applicant must show that there is a compelling reason justifying the grant of bail. In Rodgers v The Queen,[6] the Court of Appeal said that for an applicant required to show a compelling reason, ‘a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.’[7] Although an applicant need not show a reason that is irresistible or exceptional, the reason must have sufficient force as to compel the grant of bail.
[6][2019] VSCA 214.
[7]Ibid [43] (Beach, Kaye and Ashley JJA).
As already noted, the applicant points to a combination of matters, including an absence of relevant criminal history, that this is his first time in custody, the availability of stable accommodation and employment, family support, and the availability of treatment. He also points, as I have said, to him having special vulnerabilities in prison by reference to his mental health.
Although initially the evidence in support of this contention was limited, it was supplemented to a significant extent by the evidence of Ms Guzman, who gave an account of the deterioration in her brother’s mental health, and said that his family had not appreciated the extent of those matters and of his drug use.
At this stage, it is not possible to assess the strength of the prosecution case with any degree of accuracy. I would not regard it as a weak case. Some of the charges are particularly serious and all of them involve allegations of family violence. If proven, they could result in a term of imprisonment or a term combined with a community correction order.
It is also not possible, at this point in time, to predict when the charges might be heard. I accept that there will be some delay and certainly the charges would not be heard before March 2022. Given what is presently known about the applicant, the alleged offences, and the time pressures that currently exist within the court system, I accept that if the applicant were to remain on remand and he is convicted, he will have spent a significant proportion of time, or indeed exceed the time, of any sentence that might be imposed.
It is also necessary to take into account, as I do, that the current conditions in prison are especially onerous due to the pandemic. The risk of lockdown and forced periods of isolation are a very real and significant burden.
I am also satisfied that the alleged offending occurred at a time when the applicant was suffering from a number of serious matters that affected his mental health, including the earlier death of his younger brother in a car accident and the loss of employment as a result of COVID-19. It also appears that the applicant has engaged in drug use in the context of a deteriorating mental health and that this was not fully appreciated by his family until more recently, particularly in light of the present charges.
I am satisfied that the combination of these factors provides a compelling reason justifying bail.
I turn then to the question of whether the respondent has satisfied me that the applicant poses an unacceptable risk to the safety of any person or of committing an offence while on bail.
There are a number of factors that serve to reduce the risk. They include, as I have said: strong family support, stable accommodation, arrangements for treatment, and the offer of a surety by the applicant’s sister. I am satisfied that the arrangements for treatment, which the applicant’s elder sister has put in place, will provide some protection in relation to the applicant’s mental health and the risk that he poses in terms of future offending. Ms Guzman impressed me as a person who will provide a significant level of support and supervision if the applicant is granted bail.
In addition, Ms Guzman has agreed to provide a surety of $5,000 and she told the Court that she would advise the informant if the applicant breached the conditions of his bail. She indicated that she was aware of the consequences that would likely be visited upon the applicant in the event that he breaches bail.
I am satisfied that with conditions, the grant of bail would not pose an unacceptable risk. A condition requiring the applicant to reside at his parents’ address is important in this respect. I will also impose a reporting condition and a surety.
For these reasons, I am satisfied there are compelling reasons justifying the grant of bail and that it has not been shown that the applicant is an unacceptable risk of offending, interfering with any witnesses, or failing to attend Court.
---
0