Re Blackmore
[2021] VSC 93
•3 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0029
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Justin BLACKMORE |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2021 |
DATE OF ORDER: | 22 February 2021 |
DATE OF JUDGMENT: | 3 March 2021 |
CASE MAY BE CITED AS: | Re Blackmore |
MEDIUM NEUTRAL CITATION: | [2021] VSC 93 |
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CRIMINAL LAW – Application for bail – Aggravated burglary – Compelling reasons established – No unacceptable risk – Bail granted – Interim Family Violence Intervention Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms B Kelly | VLA |
| For the Respondent | Mr P Pickering | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
Justin Blackmore (‘the applicant’), who is 19 years of age, makes application to this Court for bail. He has been on remand since 7 February 2021 when he was charged with aggravated burglary, criminal damage, unlawful assault (two charges), assault by kicking, commit indictable offence whilst on bail and two counts of contravening a Family Violence Safety Notice (FVSN) relating to his sisters Britany Blackmore (‘BB’) and Chantelle McPhee (‘CM’) respectively. The charges arise from an incident in the evening of 7 February 2021 where the applicant attended the residence of CM and allegedly assaulted her, in breach of a FVSN issued earlier that day.
These matters are next listed for committal mention on 6 May 2021 at the Ballarat Magistrates’ Court. The applicant has made a previous application for bail to the Ballarat Magistrates’ Court on 12 February 2021 which was refused. On 22 February 2021 the matter came before me as an application for bail. I granted the application and indicated that I would provide my reasons. These are those reasons.
The applicant
The applicant is 19 years old with diagnoses of a learning difficulty, autism spectrum disorder, attention deficit hyperactivity disorder, drug-induced schizophrenia, depression and anxiety.
The applicant has experienced cannabis dependency, with his family moving from Cranbourne to Ballarat in order for the applicant to undergo residential rehabilitation at Tabor House. He successfully completed the program and was abstinent for over a year, until a friend reintroduced him to illicit substances.
The applicant attended Emerson Middle School in Dandenong, a school for students with learning disabilities. Upon moving to Ballarat, he completed Year 10 through Federation University.
The applicant does not have any prior recorded convictions. The respondent, however, submits that the applicant has a relevant court outcome from 19 December 2016. On that date, the applicant received a diversion in the Ballarat Children’s’ Court for charges of criminal damage and unlawful assault. The incident giving rise to the charges was that the applicant asked CM for money, but she refused. This angered the applicant, who called CM a ‘fucking cunt’, and began kicking and punching items in the house. He then grabbed CM by the neck and took her in a headlock before throwing her to the ground. CM managed to free herself and escape to lock herself in a bedroom, while the applicant continued to kick a wall.
The alleged offending
The charges against the applicant arise from an incident involving the applicant at CM’s residence at around 6.00pm on 7 February 2021.
Earlier that day, another incident had occurred between the applicant and CM. At around 1.00pm, CM attended 15 Foster St, Redan, where the applicant was living with his other sister, BB. CM confronted the applicant about the state of the house to which he responded by verbally abusing her. CM returned to her vehicle outside, but the applicant followed while allegedly carrying a shovel in a threatening manner. It is alleged that the applicant then kicked the rear of CM’s vehicle and spat at the driver’s side window.
The incident was reported to police. As a result, two FVSNs were issued to protect CM and BB, including conditions not to commit family violence and excluding the applicant from their residences. The notices were served on the applicant at around 3.00pm at the Ballarat Police Station. He is said to have ripped them up before leaving the station.
At 6.00pm that evening, the applicant allegedly attended CM’s residence, who was present with her two young children. He approached the front door and CM requested that he leave. She attempted to close the front door, but the applicant allegedly forced his way inside and pushed CM against a wall. She stumbled backwards and fell to the floor before the applicant allegedly kicked her. The applicant left the house but then tried to re-enter. When this was unsuccessful, he allegedly kicked the bedroom window causing it to shatter, injuring his hands and legs.
A witness reported the incident to police, who attended, and then proceeded onto 15 Foster Street in an attempt to locate the applicant. He was not present but police located blood droplets throughout the house. At 10.15pm, the applicant was located by police at an address in Sebastopol. He appeared to have injuries to his hands and admitted to police that they were caused by broken glass.
The applicant was arrested and conveyed to Ballarat West Police Station for interview. He is said to have admitted to entering CM’s residence through an unlocked front door and shoving CM, but denied kicking her while she was on the floor. He also admitted to damaging the bedroom window before returning to 15 Foster Street and entering the property to find his girlfriend.
The applicable legislation
First step – compelling reason
The applicant is accused of committing Schedule 2 offences within the meaning of the Bail Act 1977 (Vic) (‘the Act’). As such, the Court must refuse bail unless satisfied by the applicant that a compelling reason exists justifying the grant of bail.
In determining whether a compelling reason exists, the Court must take into account the relevant surrounding circumstances, including, but not limited to, those delineated in s 3AAA(1) of the Act.
Second step – unacceptable risk
If satisfied that a compelling reason exists, the Court must apply the unacceptable risk test. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that the risk is an unacceptable one.
In applying this test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Family violence risk
Section 5AAAA of the Act provides that, in considering the release of the applicant on bail, the Court must:
(a) make inquiries of the prosecutor as to whether there is in force a FVIO, FVSN or recognised DVO made or issued against the applicant; and
(b) consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.
At the time of the alleged offending, the applicant was subject to two FVSNs protecting his two sisters owing to his aggressive conduct towards them earlier that day. The notices were served just three hours prior to the alleged offending. Based on the court outcome in 2016, the respondent submits this is not the first time that the applicant has been dealt with for acts of family violence. At the time of this application, the FVSNs had lapsed and there were no active Family Violence Intervention Orders (FVIO) in force.
Analysis
I am satisfied that because of the question of delay and the likely sentence the applicant would receive, a compelling reason for the granting of bail has been made out. That leads to the consideration of whether the prosecution have demonstrated that he is an unacceptable risk of, in particular, committing further offences if he is released on bail.
Concerns have been expressed by the informant relating to the applicant’s history of drug use and anti-social and violent behaviour towards members of his family. These apprehensions are based to a large degree on concerns that have been expressed by the applicant’s two sisters who, in the present set of offences, have been the principal subject of the applicant’s behaviour. The applicant’s sisters report that there have been concerns in the past related to the applicant taking drugs and when under the influence of drugs, engaging in a variety of antisocial and violent behaviour towards members of the family. That is in part because they are the people who have been exposed to him and who have been making an effort over a long period of time to try and look after him. Indeed, he had been living with his sister, BB, at the time of the principal offences.
It would be foolhardy for me to say that I did not regard the applicant as a risk of offending whilst on bail. The question is whether or not I can impose conditions that render any risk that he represents to the level of it being not unacceptable. In this case, that is a very finely judged matter. I am also obliged to take into account what sentence he is likely to receive and, as I have already mentioned in discussion and as the respondent has conceded, it is unlikely – in fact, one might say extremely unlikely – that the applicant would receive a sentence greater than the 14 days that he has already served. If he commits further offences when he is released, that might change dramatically.
In those circumstances, notwithstanding the fact that weight must be given to unacceptable risk, it does not mean that we use bail as a means of preventative detention. Although, it is plain in some cases of very, very serious offending, that is of the effect of the operation of this part of the Bail Act has.
Ruling
I am satisfied that compelling reasons exist, and it has not been shown the applicant is an unacceptable risk. In these circumstances, I will admit Justin Blackmore to bail on his own undertaking. The applicant will also be subject to an interim FVIO made this day on the Court’s own motion, and returnable at the Ballarat Magistrates’ Court on 2 March 2021. Both of the applicant’s sisters will be named as the protected persons in the order that I make and in relation to his sister CM, who has children, they are also picked up by the order.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Ballarat Magistrates’ Court on 6 May 2021 and then surrender himself into custody; he must not depart without the leave of the court, and if leave is given, return at the time specified by the court, then again surrender himself into custody.
(b) He reside at an address known to the Court and the police, and that when accommodation has been provided through Uniting Ballarat, that he not change that accommodation without the leave of the Court.
(c) That, in relation to the provision of that accommodation, he remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail, unless in the company of a parent, guardian or nominee of Youth Justice.
(d) That he present himself at the front door of the premises during those curfew hours if and when called by a member of the Victoria Police to do so.
(e) He obey all lawful instructions of Youth Justice.
(f) He attend and comply with all the requirements of Youth Justice supervised bail program.
(g) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(h) He not leave the State of Victoria.
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