Re Boland - [2024] VSC 85

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2024 0032

Kellie BOLAND	Applicant
v
Victoria Police	Respondent

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2024
DATE OF RULING:	1 March 2024
CASE MAY BE CITED AS:	Re Boland
MEDIUM NEUTRAL CITATION:	[2024] VSC 85

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CRIMINAL LAW — Application for bail — Applicant charged with resist an emergency worker on duty, fail to answer bail, contravene a Community Correction Order (‘CCO’) and criminal damage — Offences committed during the period of a CCO which was imposed for offences including fail to answer bail (a Schedule 2 offence) — Applicant therefore charged with a Schedule 2 offence while on a CCO for a Schedule 2 offence and must establish exceptional circumstances justifying grant of bail — Exceptional circumstances conceded by respondent, but alleged that applicant is an unacceptable risk of failing to answer bail — Limited criminal history — Applicant 47 years old and a victim of prior family violence — History of alcoholism, homelessness and untreated mental health issues — First time in custody — Availability of supports — Exceptional circumstances established — Risk of applicant failing to answer bail not unacceptable — Bail granted on own undertaking with conditions — Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E & 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms H C de Crespigny	Michaelson Lawyers & Associates
For the Respondent	Ms A Buzo	Victoria Police

HER HONOUR:

The applicant applies for bail on six charges: resist an emergency worker on duty (summary offence, two charges), fail to answer bail (two charges), contravene a Community Correction Order (‘CCO’) and criminal damage.

It is common ground that the applicant must establish exceptional circumstances justifying a grant of bail. The respondent concedes it is open to the Court to find exceptional circumstances are established, but submits bail should be refused as the applicant is an unacceptable risk of failing to answer her bail.

Earlier today, I granted the application. I gave brief reasons but indicated I would publish more detailed reasons later. These are those reasons.

Background and Alleged Offending

On 11 October 2022, the applicant was placed on an 18 month CCO.[1] During her CCO assessment, the applicant stated that she was homeless and in need of mental health assistance. The CCO included conditions that she attend assessment and treatment for drug and alcohol dependency as directed; mental health assessment and treatment as directed; and offending behavioural programs as directed.
[1]The circumstances of this matter are dealt with in more detail later in these reasons.

The commencement of the applicant’s CCO coincided with very significant floods in the Greater Shepparton area. The applicant failed to attend within two working days, and could not be contacted until 21 October 2022. She reported that during the flood, she was without a phone charger. The applicant’s induction appointment was then conducted by telephone due to the ongoing flood crisis. The applicant continued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Boland

Details

AGLC: Re Boland [2024] VSC 85
Case: [2024] VSC 85
Decision Date: 1 March 2024

CaseChat Overview and Summary

In the matter of Re Boland, the applicant sought bail from the County Court of Victoria in relation to charges of resisting an emergency worker on duty, failing to answer bail, contravening a Community Correction Order, and criminal damage. The applicant was already subject to a Community Correction Order for offences including failing to answer bail, a Schedule 2 offence. The respondent conceded that exceptional circumstances existed for the grant of bail, but argued that the applicant presented an unacceptable risk of failing to answer bail. The applicant, aged 47, had a limited criminal history and was a victim of prior family violence. The applicant also had a history of alcoholism, homelessness, and untreated mental health issues. This was the first time the applicant had been in custody.

The court had to decide whether the exceptional circumstances were sufficient to warrant bail, despite the applicant being charged with a Schedule 2 offence while on a Community Correction Order for a Schedule 2 offence. Additionally, the court had to weigh the risk of the applicant failing to answer bail against the exceptional circumstances. The court found that the exceptional circumstances were established, noting the applicant's age, history of family violence, and mental health issues. The court also found that the risk of the applicant failing to answer bail was not unacceptable. The court concluded that bail should be granted on the applicant's own undertaking with conditions.

The orders of the court included that the applicant be granted bail on their own undertaking with specified conditions. The applicant was to comply with the conditions of the existing Community Correction Order and any other conditions imposed by the court. The applicant was also to attend a specified medical practitioner for treatment of mental health issues and alcohol dependency. The applicant was to reside at a specified address and not to consume alcohol or drugs. The applicant was further directed to attend a specified service provider for support and to report to a specified officer at a specified time and place.

Orders