Re Booth
[2022] VSC 419
•27 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0168
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application by JON BOOTH |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2022 |
DATE OF ORDERS: | 22 July 2022 |
DATE OF REASONS: | 27 July 2022 |
CASE MAY BE CITED AS: | Re Booth |
MEDIUM NEUTRAL CITATION: | [2022] VSC 419 |
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CRIMINAL LAW — Application for bail — Applicant charged with trafficking cannabis and methylamphetamine, false imprisonment, possession of cannabis and methylamphetamine, unlicensed driving, commit indictable offence on bail, retain stolen goods and resist police — Whether exceptional circumstances exist justifying grant of bail — Whether applicant an unacceptable risk — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4D, 4E, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Blake | Sarah Pratt & Associates |
| For the Respondent | Mr N Moran | Legal Services Department, Victoria Police |
HIS HONOUR:
The applicant is a 37 year old man, with a relevant criminal history, who is facing a number of outstanding charges, brought by different informants, in the Magistrates’ Court. The applicant has applied for bail in this Court. At the conclusion of the hearing of the application, I granted bail subject to some very strict conditions, the most salient of which are conditions that the applicant reside at a residential drug treatment program and engage in treatment for his drug addiction that has been an underlying and significant cause of his past offending. What follows are my reasons for granting bail.
The alleged offending (informants Walker, Harper, Newland and Edwards)
Although it is the charges proffered by Senior Constable Harper that leads to the applicant’s current remand, it is convenient to refer to the alleged offending in chronological order.
Walker charges
At the time of the alleged offending, the applicant and SH (‘the complainant’) had been in an on and off again relationship for approximately two years.
On 4 March 2021, the applicant believed that the complainant had been unfaithful and confronted her. He allegedly grabbed her by the throat, pushing her backwards into the fridge. The applicant then threatened to kill the complainant and himself, while holding a knife.
The complainant subsequently attempted to leave the address five times. Each time, the applicant used physical force to prevent this, including by grabbing the complainant’s ear and pulling her to the ground. The following day, the complainant remained in the house out of fear of what the applicant would do if she attempted to leave again.
On 6 March 2021, the complainant texted a friend and her sister asking for help. The complainant’s friend attended the address and was threatened by the applicant. When the applicant was asleep, the complainant was picked up by her sister’s partner. The complainant’s sister reported the matter to the police. Police attended the applicant’s address and arrested him. While searching the house police found a small personal quantity of cannabis.
The complainant suffered bruising to her neck and back as a result of the assault, which police photographed.
The applicant admitted grabbing the complainant’s throat and pushing her into the fridge. He denied that he assaulted the complainant in any other way or prevented her from leaving the house. He admitted that the cannabis at the address was for his use, however, denied purchasing it.
On 6 March 2021, an interim Family Violence Intervention Order (‘FVIO’) was made on the application of the police, listing the complainant as the protected person and the applicant as the respondent. A final FVIO with full no-contact conditions was made on 18 October 2021 and remains in effect until 17 October 2026.
The complainant opposes bail and says that she fears that the applicant will contact her if he is released.
Newland charges
On 1 January 2022, the applicant drove while unlicensed. When intercepted by police, he admitted to being unlicensed.
Harper charges
On 24 February 2022, Acting Sergeant Krause (‘AS Krause’) and Constable Collins were alerted to a potential drug deal at a service station in Frankston. The police officers attended the service station, identified the applicant at the scene, and began to search him and his vehicle.[1] Upon finding drugs inside the applicant’s vehicle, AS Krause informed the applicant that he was under arrest and he attempted to run past AS Krause. AS Krause reached out to stop the applicant, her finger became tangled in the applicant’s jumper, and she sustained a broken finger as a result. The applicant resisted both officers, before being sprayed with capsicum spray. Police found the following items inside the applicant’s vehicle: his mobile phone, a tick book with the applicant’s name on it, 85 grams of a green vegetable matter, 13 grams of methylamphetamine, various prescription medications, a new chainsaw, three nail guns, multiple laptops and iPads, and $6790 in cash.
[1]I note the vehicle was not registered to the applicant, however, was in his possession at the time.
The applicant stated the following:
·that he has a drug problem and deals drugs (including prescription drugs) to pay for his addiction;
·that he has no fixed address;
·that the drugs found in the vehicle were his;
·that the cash and property in the vehicle were his, and had been obtained in the course of his drug deals, and further that the tick list detailed these exchanges; and
·that he knew he was under arrest when he ran away from police.
In addition to these matters, the applicant also faces some relatively minor charges that were laid by summons (informants Edwards and Crowley).
Edwards charges
At the hearing of the application, I was informed that the applicant was on summons on the Edwards charges and that bail was not sought in relation to the them. Subsequently, the Magistrates’ Court notified the Criminal Registry that the applicant was also on remand on the Edwards charges. These charges relate to unlicensed driving, use of an unregistered motor vehicle and contravene a bail conduct condition.
The Harper, Newland and Edwards matters return to the Magistrates’ Court at Frankston on 31 August 2022. The applicant has indicated that he will plead guilty to those charges on that day.
The Walker matter is listed for a one day contest in the Magistrates’ Court on 12 September 2022. The applicant intends to plead not guilty to those charges (other than the possession of cannabis charge).
The applicable test for bail
In order to be granted bail, the Court must be satisfied that there are exceptional circumstances justifying the grant of bail. That is because the applicant is alleged to have committed a schedule 2 offence, namely trafficking in a drug of dependence,[2] when he was on bail for another schedule 2 offence, namely making a threat to kill (that is also a family violence offence).[3]
[2]Bail Act 1977, sch 2, item 24(b) (‘the Act’).
[3]Ibid sch 2, item 7.
In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including but not limited to those prescribed in s 3AAA(1) of the Act.[4] The phrase ‘exceptional circumstances’ is not defined in the Act. In short, the totality of the circumstances relied upon by the applicant must take the case out of the ordinary such that bail is justified.[5]
[4]Ibid s 4A(3).
[5]See, eg, Roberts v The Queen [2021] VSCA 28; Re KE [2021] VSC 175; Re Sam [2017] VSCA 91.
In the event the Court is so satisfied, the Court must refuse bail if the prosecution persuade the Court that there is an unacceptable risk. That is, bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is an unacceptable risk.[6] In considering this, the Court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[6]The Act, ss 4D(1)(a) and 4E.
[7]Ibid s 4E(3).
In addition, as the applicant is accused of committing family violence offences, the Court must 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.[8] In this case, a final FVIO is already in place.
[8]Ibid s 5AAAA(2).
When interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[9]
[9]Ibid s 1B(2).
Criminal history
Before turning to the matters relied on by the applicant to establish exceptional circumstances, it is necessary to refer to the applicant’s criminal history.
The applicant’s offending commenced in 2017. His descent into crime was associated with a breakdown of a relationship and the consumption of illicit drugs, including methylamphetamine. His father, who gave evidence on this application, said before this period the applicant had not been in trouble with the law. The applicant’s criminal record bears this out, and I accept it.
The applicant’s criminal history commenced in January 2017, when he was convicted of contravening a FVIO, contravening a FVIO intending harm or fear, recklessly cause injury, and committing an indictable offence whilst on bail. He was placed on a Community Correction Order (‘CCO’), which he subsequently breached. In August 2017, the applicant was convicted of being a prohibited person possessing a firearm. In October 2018, the applicant was convicted of failing an oral fluid test, breaching an alcohol interlock condition and failing to answer bail. In 2019, the applicant was convicted of possessing methylamphetamine, theft of a motor vehicle, unlicensed driving, burglary, theft and committing an indictable offence whilst on bail. The applicant has convictions in 2020 relating to theft, burglary, theft of a motor vehicle, possessing methylamphetamine, possessing cannabis, trafficking MDMA, and committing indictable offences whilst on bail. Relevantly, the applicant has a concerning history of contravening CCOs, contravening conduct conditions of bail and committing indictable offences whilst on bail.
Exceptional circumstances
The centrepiece of the application for bail is that the applicant has been accepted into a residential drug rehabilitation program at the Cottage in Shepparton (‘the Cottage’). The applicant says that abuse of drugs has been a major cause of his criminal behaviour and that this is the first time he has had the opportunity to have intensive residential support in a 12 week program.
In addition, he relies on the following matters which, in combination with each other and with the residential drug treatment, he says makes the circumstances exceptional:
(a) family support, as evidenced by the payment by his mother of part of the treatment cost at the Cottage ($7,000) and the provision of a surety by his father ($6,000);
(b) delay and likely sentence. The applicant notes that the majority of the remand matters have resolved, with the exception of charges in the Walker matter, which are contested on the basis of a factual dispute. By the date of hearing this application, the applicant had spent 148 days (approximately five months) in custody on remand, which is the longest continuous period the applicant has spent in custody. The resolved matters are next listed for a plea of guilty on 31 August 2022, and the Walker matter is next listed for a contested hearing on 12 September 2022. The applicant submits that he may spend more time on remand than the sentence that will be imposed at the conclusion of all matters;
(c) COVID-19 and the onerous conditions in custody. The applicant submits that the pandemic has led to greater hardships for people in custody, extending beyond delay. In the applicant’s case, he submits that he has lost visitation rights and has been subjected to 49 days of lockdown since his remand. The applicant submits that it has been accepted by the Court that COVID-19 has led to greater restrictions on those in custody, which has exacerbated issues of anxiety for prisoners, and can constitute exceptional circumstances; and
(d) the informant does not oppose bail.
Although the informant (Walker) does not oppose bail, the respondent submits that whether exceptional circumstances exist and an assessment of whether the risks of a grant of bail are unacceptable, are matters for the Court to determine. The respondent submits that each of the factors relied on by the applicant are not particularly unusual and certainly not exceptional. It submits that if the applicant is convicted on the Walker charges, he stands to face a term of imprisonment that would likely exceed his time on remand given the seriousness of the allegations and the applicant’s poor criminal history. In that respect, it is said that if the applicant remains in custody until the contested hearing on the Walker charges on 12 September 2022, he will have spent approximately six and a half months on remand since his arrest on 24 February 2022. The respondent submits that a term of imprisonment exceeding seven months would be wholly within the range, given the seriousness of the charges and the applicant’s criminal history.
The respondent submits that the applicant’s past rehabilitative attempts through court-ordered interventions, including CCOs, have come to nothing, and on this basis, submits that the availability of treatment through the Cottage should be viewed with some reservation. To make good that submission, the respondent points to the following:
(a) on 1 August 2017, the applicant was resentenced to a varied CCO (originally imposed on 30 January 2017) for contravening a FVIO intending harm or fear, recklessly causing injury, contravening a FVIO, and committing an indictable offence whilst on bail. The respondent submits that the victim was the applicant’s then partner, who was protected by a FVIO, and that the offending involved the applicant grabbing the victim as she attempted to walk away and then later picking her up and throwing her to the ground; and
(b) on 28 November 2021, the applicant was convicted and fined $1500 for one count of contravening an interim FVIO and two counts of contravening a conduct condition of bail.
Decision
The applicant has established exceptional circumstances justifying the grant of bail. Although taken alone, none of the matters relied on by the applicant meet the statutory test, in combination, they reach the threshold. The availability of residential treatment is especially important. The record of the applicant, which may fairly be described as poor, has been associated with his drug use, which has been uncontrolled. His attempts at avoiding drugs have so far not been successful and this has contributed to his breaches of court orders.
The treatment that he has undertaken to date lacks the intensity and supervision of the residential program offered by the Cottage. Further, the program will take him out of his environment, including anti-social peers and the availability of drugs. Although the rigours of a residential program do not mirror the outside world and the temptations that go with it, the program will provide an opportunity to break the cycle.
In Robinson v The Queen,[10] the Court of Appeal said:
The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person’s freedom of movement and association but — on the positive side — it means that the pre-trial period can be used constructively to tackle the person’s drug addiction.[11]
[10][2015] VSCA 161.
[11]Ibid [50] (Maxwell P and Redlich JA). See also Re Jiang [2021] VSC 148.
That observation was not made in the context of a specific finding about exceptional circumstances, and it is not possible on the material before me to draw any empirical conclusion about the prevalence of residential drug treatment programs for persons charged with serious criminal offences. Nevertheless, it is a highly significant matter. The applicant will be required to remain at the Cottage and his movements will be heavily restricted.
Although the applicant has upcoming court dates that are not far in the future, and for that reason, delay in this case is very different to those that have become regrettably all too common in the face of the current pandemic, the availability of treatment, and whether the applicant is successfully able to navigate it, may be highly relevant to any sentence that may be imposed. It will enable the magistrate to take into account any positive progress that the applicant is able to make, and at the same time, broaden the range of dispositions that might be suitable. In that context, unless bailed, the applicant might well spend more time in prison than might otherwise be ordered. The capacity of the proposed treatment to a more favourable sentencing outcome cannot be discounted.
Further, the benefit that might accrue to the applicant in the sentencing process forms only part of the picture. There is also the benefit to the community that would follow from successful treatment.
My own assessment as to the potential value of the treatment program is also informed by the fact that the informant does not oppose bail on the basis of his understanding that the Cottage program has a good reputation and the potential benefits that may follow.
I turn then to the question of whether a grant of bail would give rise to an unacceptable risk. On that issue, I start with the observation that the applicant has had opportunities in the past for community treatment and has squandered them. Further, the fact that he has a history of family violence and has outstanding charges relating to offending against a former partner, are matters of concern. I take into account the attitude of the complainant based, as it is, on past experience.
I am conscious that there is some risk associated with a grant of bail. However, I am satisfied that, with strict conditions to keep the applicant within the residential program, that the risk is not unacceptable.
The period of bail is short, the program is intensive, and there are a number of measures to protect against the applicant absconding from the program. Importantly, the applicant is aware that any breach of bail would have very serious repercussions for him, both because it would likely lead to a cancellation of bail and would undermine any benefit that this treatment might yield for him when he comes to be sentenced. He can be under no misunderstanding as to the importance of compliance for the outcome of the court processes that he now faces.
The support of his family, including both through partially funding the treatment and by his father providing a surety, provides additional protection against a breach of bail or further offending whilst on bail.
For these reasons, I granted bail to the applicant.
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