Re Boland
[2024] VSC 85
•1 March 2024
| 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 to engage with Corrections on a weekly basis — albeit incurring a number of absences — for approximately three months.
On 20 October 2022, the applicant attempted suicide and was treated in hospital overnight. Despite this, the applicant was resistant to mental health treatment. She did attend a community work induction program and an initial assessment with Forensic Intervention Services, who recommended she participate in the See Change for Women Program.
On 16 January 2023, the applicant used a brick to smash the windscreen of her ex‑partner’s unregistered vehicle, which was parked in Sheehan Crescent in Shepparton. On 23 January 2023, the Shepparton Magistrates’ Court refused an application by police for an interim intervention order naming the applicant as the respondent and her ex‑partner as the protected person. The applicant was arrested on 27 January 2023. She was charged with criminal damage and bailed by police on her own undertaking to appear at the Shepparton Magistrates’ Court on 10 February 2023. She failed to appear and a warrant was issued.
Around late February or early March 2023, the applicant disengaged from Corrections and her phone was disconnected. Corrections were also informed of the alleged further offending, and that the applicant had failed to attend court on 10 February 2023.
On 24 April 2023, the applicant was charged with contravening her CCO by failing without reasonable excuse to comply with the conditions of the CCO. The applicant could not be located and a warrant to arrest was issued.
On 8 May 2023, the applicant was charged with failing to answer bail on 10 February 2023. On 6 September 2023, the applicant was arrested and further bailed to appear on 8 September 2023. Again, she failed to appear. The applicant was subsequently charged with failing to answer bail on 8 September 2023.
On 1 February 2024, the applicant went to stay with her brother, his partner TQ, and their two very young children, SQ and AQ. The applicant’s brother and TQ were trying to assist the applicant to abstain from alcohol and drugs.
On 4 February 2024, the applicant became intoxicated and abusive towards TQ. She then attempted to take TQ’s car keys. TQ called police, who attended and found the applicant asleep inside the house. Police woke the applicant and attempted to arrest her pursuant to outstanding warrants. She allegedly resisted them by kicking and spitting in their direction (which did not connect). Police used OC spray to subdue the applicant. She was then arrested, charged by Senior Constable Probst with two charges of resist an emergency worker on duty and remanded into custody. Also on 4 February 2024, the applicant was served with the charge of contravene a CCO.
Procedural History
The applicant was refused bail by the Bendigo Magistrates’ Court on 12February 2024. She was remanded in custody on the charges of resist emergency worker on duty, fail to answer bail and contravene a CCO. Her bail was extended on the charge of criminal damage. All matters were adjourned to 27 February 2024 at the Shepparton Magistrates’ Court for a possible Drug Court assessment.
On 19 February 2024, the applicant filed an application for bail in this Court.
On 27 February 2024, the applicant participated in a Shepparton Drug Court screening hearing, but was found unsuitable due to the minor nature of the alleged offending. The applicant was then remanded on all charges, including the charge of criminal damage.
All the applicant’s outstanding matters are next listed for a plea hearing on 14 March 2024 at Shepparton Magistrates’ Court.
The Applicant
The applicant is 47 years of age. She grew up in Shepparton and left high school after completing Year 10. Following school, she worked at the IGA Supermarket in Shepparton for six or seven years. She had a period of unemployment and then commenced working as a contractor on vineyards and orchards in the Mildura region. She was last employed when she was 45 years old, working at a horse feed business in Euroa.
The applicant was in a relationship with Antonio Bono for approximately 20 years (Mr Bono is the alleged victim of the criminal damage charge). There are three children from that relationship aged 21, 17 and 14 years. The applicant’s eldest daughter has one child, the applicant’s grandson, aged two. None of the applicant’s children are in her immediate care.
The applicant has been a victim of family violence perpetrated by Mr Bono. In 2016, Mr Bono received a four month term of imprisonment for family violence offending where the applicant was the victim. She reports being a victim of multiple instances of both physical and sexual violence. She left the relationship and fled the family home to women’s shelters in Shepparton, Geelong and Ballarat approximately 16 years ago with her children.
Four years ago, the applicant witnessed her younger brother die in a car accident. She has struggled immensely with his loss, and self‑reports suffering from post‑traumatic stress disorder. Material from the applicant’s general practitioner establishes she suffers from anxiety and depression.
The applicant has a history of using methamphetamine and abusing alcohol. She reports that alcohol has been most problematic, consuming two bottles of wine daily. Her use of other substances has been sporadic by comparison. She reports that her struggle with alcohol worsened after the death of her brother.
The applicant was previously living with her eldest daughter and grandson. She moved out of this property in early 2023 and lived with her mother for a short period, but was otherwise homeless. On 1 February 2024, she moved in briefly with her brother, which resulted in the incident of 4 February and (in part) the charges for which she now seeks bail.
Since being incarcerated, the applicant has had communication with all three of her children who remain supportive of her. They each live in the Shepparton area.
If granted bail, the applicant will reside with her sister‑in‑law in Mooroopna. The applicant is on a waiting list for public housing, which she will continue to pursue.
Criminal history
The applicant has a limited criminal history. She has never received a sentence of imprisonment.
In 2002, aged 25, she was convicted and fined for refusing to undergo a breath test, being drunk in a public place, careless driving and unlicensed driving. There were then no court appearances for 15 years.
Between March and September 2017, the applicant appeared at the Shepparton Magistrates’ Court on four occasions. Her offending included contravening family violence intervention orders, unlawful assault, drink driving, threat to inflict serious injury and one charge of failing to answer bail. She received fines and adjourned undertakings. In August 2019, a charge of contravening an adjourned undertaking was found proven and dismissed.
In January 2022, she received a ‘without conviction’ adjourned undertaking for contravening an interim intervention order.
On 11 October 2022, she was dealt with for a number of matters including fail to answer bail (two charges), contravening an intervention order, resisting and assaulting an emergency worker, theft and criminal damage. The police summaries of those matters state the applicant assaulted another female who she believed owed her money and stole her mobile phone; resisted police when they tried to lawfully arrest her; scratched one of the arresting officers; and on another occasion, while intoxicated, refused to leave a friend’s premises and when forced to leave, damaged a pot plant and the rear windscreen of the friend’s vehicle. The applicant was convicted and received an 18 month CCO which is the subject of the contravention charge.
The legislation
The charges for which the applicant was convicted and placed on the 18 month CCO included two charges of fail to answer bail. Fail to answer bail is a Schedule 2 offence pursuant to the Bail Act 1977 (‘the Act’).[2]
[2]Bail Act 1977 (Vic) sch 2.
On 4 February 2024, the applicant was charged with two further Schedule 2 offences (again, charges of fail to answer bail). These Schedule 2 offences were allegedly committed during the period of her CCO. Thus, the applicant has been charged with a Schedule 2 offence during the period of a CCO made in respect of a Schedule 2 offence. Therefore, bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[3] In considering whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[4]
[3]Ibid ss 4AA(2)(c)(iv), 4A.
[4]Ibid s 4A(3).
If satisfied to the requisite standard, the Court must then consider the unacceptable risk test.[5] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[6] In considering whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[7]
[5]Ibid ss 4A(4), 4D(1).
[6]Ibid ss 4D(2)–(3), 4E(1)–(2).
[7]Ibid s 4E(3).
Further, s 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 family violence intervention order, family violence safety notice or recognised domestic violence order made or issued against the applicant; and
(b) in circumstances where the applicant is charged with family violence offences, consider whether — if the applicant were released on bail — there would be a risk that she would commit family violence and, if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a family violence intervention order.
There is a final intervention order in place protecting TQ, SQ and AQ. The applicant was present at Court and consented without admissions to the order being made. The order lasts until 25 February 2025 and contains a number of conditions, including that the applicant not go within five metres of a protected person. There is nothing in the material before me that suggests the applicant will seek to approach or contact TQ, SQ or AQ. They reside in Argyle, and it is proposed that the applicant will live approximately 100 km away in Mooroopna.
The applicant is not charged with any family violence offences (or any other offences) against the protected persons, however, she is charged with an offence of criminal damage involving her ex‑partner’s property, which would come within the general definition of ‘family violence offence’.[8] That alleged offence occurred over one year ago, and there is no material before me that suggests the applicant poses a risk to her ex‑partner if released on bail.
[8]Ibid s 3 defines ‘family violence’ as including an offence where the conduct of the accused is family violence. ‘Family violence’ has the same meaning as in the Family Violence Protection Act 2008 (Vic).
Applicant’s submissions
The applicant relies on a combination of factors to establish exceptional circumstances:
(a) The applicant has a number of vulnerabilities including mental health issues, substance abuse problems and a history of homelessness. The applicant has also been the victim of family violence committed by her ex‑partner;
(b) The applicant’s criminal history is limited and she has never received a term of imprisonment;
(c) The offending is low level and not a serious example this type of offending. The applicant accepts the prosecution case on all charges is strong;
(d) The applicant’s initial engagement with her CCO was positive. Her subsequent non‑compliance occurred in the context of her experiencing homelessness, relapsing into alcoholism, suffering poor physical and mental health, and a falling out with her son‑in‑law.
(e) The applicant is very unlikely to receive a term of imprisonment for the offending, and her time on remand has already exceeded any sentence that she is likely to receive.
(f) The applicant has the support of the Court Integrated Services Program (‘CISP’) and there is a treatment and support plan available;
(g) The applicant has a suitable, stable address in the Greater Shepparton area;
(h) The applicant has ties to the jurisdiction and the support of her three children;
(i) The applicant has previously failed to appear on bail, but at those times she was homeless, drinking alcohol to excess and unsupported. Further, the applicant has now experienced custody for the first time, which has had a significant deterrent effect.
The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of failing to answer bail. The applicant submits that any risk can be rendered acceptable through the imposition of conditions, particularly mandated compliance with CISP.
The Respondent’s submissions
The respondent submits it is open to the Court to find that exceptional circumstances exist. The respondent accepts the proposed address is suitable, and police have spoken with the applicant’s sister‑in‑law. Additionally, the respondent notes the availability of the CISP, which will assist the applicant to access mental health support services, Alcoholics Anonymous and other programs designed to address the applicant’s substance abuse and alcohol issues.
The respondent submits, however, that the applicant is an unacceptable risk of failing to answer bail for the following reasons:
(a) The supports in place are insufficient to mitigate the risk of the applicant failing to attend court;
(b) The applicant has a history of non‑compliance with bail and court orders, including intervention orders and a CCO;
(c) The prosecution case on all charges is strong; and
(d) The applicant will have only spent 39 days in custody as at the date of her plea hearing.
The respondent submits an immediate custodial sentence is within range, given the charge of contravene a CCO and the applicant’s poor compliance with that order.
Analysis
Exceptional circumstances
The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[9] Here, the real question is whether the combination of factors relied upon by the applicant is sufficient to satisfy that high, but not impossible, standard.
[9]See Re CT [2018] VSC 559 at [64]–[66] and the cases referred to therein.
The respondent concedes exceptional circumstances exist here. That concession, whilst not determinative of the outcome, is a relevant matter in the applicant’s favour.
The charges faced by the applicant are not serious, nor are they serious examples of the offences in question. While the applicant’s conduct towards the arresting officers can fairly be described as appalling, the officers were not injured and the applicant was quickly brought under control with the use of OC spray. The two charges of fail to answer bail consist of no more than failing to appear at court; the applicant did not seek to leave the jurisdiction or evade authorities. The charge of criminal damage was committed in circumstances of family violence, as the unregistered van belonged to the applicant’s ex‑partner, however it is not a particularly serious example of criminal damage. I note the applicant was originally granted bail on that charge, which dates back to January 2023. The prosecution case on all charges is strong and this is conceded by the applicant.
The matter will proceed as a plea of guilty and the applicant will be assessed for a further CCO. The applicant’s breach of her CCO is not a serious example of contravention, and it was her first such order. The Corrections’ Breach Report dated 27 April 2023 notes that the applicant had a range of issues, including accommodation instability and poor mental health.
An email from Corrections dated 29 February 2024 confirms that at the Drug Court assessment on 27 February, Corrections’ position was that the applicant was eligible for a further CCO (subject to further assessment). An assessment of the applicant’s current circumstances will likely result in her being given a further opportunity to complete the CCO and/or a further CCO. In my view, it is extremely unlikely that the applicant will receive a term of imprisonment for any of the offending. This is a very significant factor that goes a very considerable way to establishing exceptional circumstances.
The applicant has never received a custodial sentence and has been on remand for approximately four weeks. If not granted bail, she will remain on remand for approximately another two weeks. While this cannot be said to constitute delay, as that word is commonly understood in bail applications, it is nonetheless a significant period of time in circumstances where the offending is not, in my view, deserving of immediate imprisonment.
The applicant’s criminal history is of some concern. She has failed to answer bail on three occasion in the past six years. She has breached family violence intervention orders on four occasions, although I note that for two of those breaches she received adjourned undertakings, and another was proven and dismissed. This suggests the breaches were not serious examples of the offence.
The applicant was on both bail and a CCO when she allegedly committed the offences of resisting an emergency worker on duty. The CCO had been imposed for similar offending. It is fair to conclude that the applicant has not taken court orders and grants of bail as seriously as she should, and has continued to offend while subject to both.
The applicant has been assessed as suitable for CISP. The applicant presented as highly motivated to abstain from alcohol and ‘desperate’ to change her lifestyle. She has agreed to attend her general practitioner for a mental health review, and undergo assessment and treatment in relation to substance abuse and alcohol issues. CISP will arrange the necessary appointments. The applicant has no prior involvement with CISP, and has not previously been supported on bail. In the circumstances, the availability of CISP is a significant factor that weighs in the applicant’s favour.
Overall, I have reached the conclusion that the combination of factors here are capable of establishing exceptional circumstances. In particular, the following matters are significant: the offending does not warrant a custodial penalty and any time on remand will, in my view, exceed any ultimate sentence; the offending is very much at the lower end of seriousness; the applicant has a number of vulnerabilities and has previously been the victim of family violence; and the availability of CISP in circumstances where the applicant has not previously had such support while on bail.
I turn to the question of unacceptable risk. The respondent submits the applicant is an unacceptable risk of failing to answer her bail and bail should therefore be refused.
Whether the applicant is likely to receive a custodial sentence is a significant consideration when determining whether any risk is acceptable. If an accused is charged with serious matters and facing a lengthy custodial sentence if convicted, and there is a real risk he or she will deliberately fail to answer bail so as to avoid the consequences of his or her crimes, the risk of failing to answer bail may be unacceptable in all the circumstances. The seriousness of the consequences may also provide an accused with an incentive to flee the jurisdiction, increasing the risk they will fail to answer their bail. However, if an accused is charged with minor offending that will not attract an immediate sentence of imprisonment, those matters will ordinarily make it harder for the respondent to establish that such a risk is ‘unacceptable’.
A risk is ‘unacceptable’ if it cannot be tolerated; a real risk of something occurring may still be acceptable when regard is had to all the circumstances of the case.[10] It is relevant to consider both the likelihood of the occurrence of the risk, and the magnitude of the consequences, should the risk be realised. Here, there is an appreciable chance that the applicant will not appear to answer her bail, given her history. Balanced against that history are the following factors: the applicant has spent 26 days in custody which has no doubt served as a salutary lesson; the applicant’s matter is less than three weeks away; the applicant has available a suitable and stable address in the local area; and the applicant will be supported through CISP, which she has not had previously.
[10]See Re Kyle Magee [2009] VSC 384, [18]–[22], where J Forrest J considered the prospect of re‑offending in determining a ‘show cause’ bail application. The applicant was charged with minor criminal damage, being the painting of a tram shelter. The applicant was a recidivist activist with a relevant prior record, and on bail at the time of the alleged offences. His Honour found that there was a ‘real risk of re‑offending, and by that I mean a risk which is neither farfetched nor fanciful, whatever conditions are imposed’. However, he balanced this against the fact that ‘the prospective offence of which there may be a risk is particularly low on the scale of criminal activity’ and ‘such prospective re‑offending carries no apparent risk of injury to any other member of the community or, for that matter, threat to any other member of the public.’ See also Hall v Pangemanan [2018] VSC 533, [25] per Croucher J.
Moreover, the prospect of the applicant failing to answer bail carries no risk of injury or damage to any member of the community. There is no suggestion the applicant has the mindset, or the means, to flee the jurisdiction. Her family, including her children and grandson, all live in the Shepparton area. If she fails to appear, it is likely the applicant will be located by local police, arrested and brought to court. The matter is listed for a plea hearing, and the inconvenience to the court and authorities will be minimal. The real damage will be to the applicant, who will have breached her bail and find herself back in custody, where she will likely remain until her matter can be heard.
There are conditions that can be imposed which will reduce the risk that the applicant will fail to appear, including that she comply with CISP and reside at a known address. Additionally, the applicant has now experienced jail for the first time at the age of 47, which I expect was a sobering experience and will deter her from failing to answer her bail. She no doubt understands that if she continues to ignore her bail conditions, there will be real and serious consequences, including jail.
I accept there is a risk the applicant will fail to answer her bail. However, what is to be assessed is whether the risk the applicant might not appear is unacceptable. The risk must be sufficient to justify her continued detention in custody, in circumstances where she is charged with offences which are highly unlikely to attract a custodial penalty. In my view and in the circumstances here, the risk of the applicant failing to answer bail is not ‘unacceptable’.
Conclusion
The Court is satisfied that exceptional circumstances are established that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk of failing to answer bail.
The applicant will be released on bail on her own undertaking on the following special conditions:
(a) The applicant is to attend the Shepparton Magistrates’ Court on 14 March 2024 at 9:00am and then surrender herself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender herself into custody.
(b) The applicant is to reside at [REDACTED], Mooroopna in the State of Victoria and notify the Informant, Senior Constable Probst, 24 hours prior to any proposed change of address.
(c) The applicant not contact, directly or indirectly, any witness for the prosecution, except the informants, Senior Constable Probst and First Constable Watson.
(d) The applicant must attend all appointments and comply with all lawful requirements of CISP as directed by them, or their nominee/s, including attending in person the following:
(i) CISP appointment at 2:00pm on Monday 4 March 2024 at the Shepparton Magistrates’ Court, 14 High Street, Shepparton.
(e) The applicant is not to possess or consume illegal drugs.
(f) The applicant is to report to the Shepparton Police Station every Tuesday and Friday between the hours of 7:00am and 8:00pm commencing on Tuesday 5 March 2024.
(g) The applicant is not to leave the State of Victoria.
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