Re Bray
[2023] VSC 371
•30 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0105
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by ADAM BRAY |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 & 22 June 2023 |
DATE OF ORDERS: | 22 June 2023 |
DATE OF RULING: | 30 June 2023 |
CASE MAY BE CITED AS: | Re Bray |
MEDIUM NEUTRAL CITATION: | [2023] VSC 371 |
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CRIMINAL LAW – Application for Bail – Applicant charged with attempted murder and other offences – Established diagnosis of schizophrenia – Prior non-compliance with medication and mental health treatment – No criminal history – First time in custody – Strong family support – Requirement to show exceptional circumstances – Whether exceptional circumstances shown – Special vulnerability – Exceptional circumstances shown –Unacceptable risk not established – Bail granted with strict conditions – Bail Act 1977 ss 1B, 3AAA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Cannon | Barwon South West Lawyers |
| For the Respondent | Mr E Dober | Office of Public Prosecutions |
Introduction:
Adam Bray (‘the applicant’), aged 50, applies for bail. He is charged with 25 offences, including (inter alia) attempted murder, assault police officer on duty, and assault emergency worker on duty, knowing or reckless to whether they were an emergency worker.
The incident giving rise to the charges occurred on 28 November 2022. He has been in custody ever since – in other words, for almost seven months now. He has no criminal convictions.
The behaviour alleged is extremely serious. The charged events occurred in the applicant’s home during a police accompanied home visit by the Community Mental Health Team.
There are two main issues on this application. The first is whether the applicant has established exceptional circumstances justifying bail. There is no dispute that the incident occurred in circumstances where the applicant’s mental health had significantly deteriorated. Whether his mental state might sustain a defence of mental impairment will not be known for at least some months.
The defence of mental impairment is a triable issue in this case. It may be that if found guilty following trial the applicant will spend a considerable amount of time in custody. The applicant’s next matter is listed for committal mention on 4 July 2023, by which time the applicant will have been in custody for 218 days. As the defence of mental impairment is sought to be relied on, the applicant is very likely to be subject to further delay following the committal mention, in order for the mental impairment defence to be further investigated. If the matter does not resolve and proceeds to trial in the Supreme Court, the applicant is likely to be subject to extensive delay. Thus, the delay before a contested hearing is very likely to be such that, if the applicant is not bailed now, his period in custody will exceed any prison sentence imposed were the mental impairment defence to be available to him.
I am satisfied that the latter point alone amounts to an exceptional circumstance justifying bail.
The second issue is whether the prosecution has established that there is an unacceptable risk that, if granted bail, the applicant would endanger the safety or welfare of others, commit an offence, or interfere with witnesses or otherwise obstruct the course of justice.
The applicant’s social isolation, the lack of treatment of his condition, and his connection to sovereign citizen ideology, point to some risks of the kinds asserted. However, I am not satisfied that those risks are unacceptable. The applicant has responded well to treatment, in particular antipsychotic medication. I am persuaded that the applicant’s lack of prior convictions, his preparedness to accept the support of the Court Integrated Services Programme (‘CISP’) and treatment from the Barwon Area Mental Health Service and Barwon Community Mental Health Team, and the proposed conditions of bail, mean that those risk are at, or at least are reduced to, an acceptable level.
Accordingly, I consider that bail must be granted. The applicant will be admitted to bail on his own undertaking with conditions.
My more detailed reasons for these conclusions follow.
Summary of events
The evidence giving rise to the charges may be summarised in this way.
On 8 August 2020, the applicant was involuntarily admitted to the Swanson Centre, a mental health inpatient unit in Geelong. He was diagnosed with delusional disorder and historic methamphetamine use was noted. He commenced an injectable antipsychotic medication, however he felt that this made no difference. On 28 August 2020, the applicant was transferred to the prevention and recovery care unit (a step-down psychiatric unit), where he resided until 28 September 2020.
Upon returning to the community, the applicant was briefly managed on a community treatment order. On 2 November 2020, the community treatment order was revoked on the basis that the applicant no longer meets criteria. Following this, the applicant did not engage with mental health services or take medication.
On 21 November 2022, the applicant’s National Disability Insurance Scheme (‘NDIS’) coordinator requested a home assessment of the applicant because of concerns regarding his deteriorating mental health.
On 28 November 2022, mental health clinicians attended the applicant’s home in response to concerns raised by his family. The clinicians found the applicant to be aggressive and left.
Later in the day, two clinicians returned to the applicant’s home with the additional support of ambulance officers and four police officers. It was intended that the clinicians would conduct an involuntary assessment of the applicant and that he would be transported to hospital.
The ambulance officers, clinicians, and Senior Constables (‘SC’) Allman and Pearson approached the applicant’s home, while Senior Constables (‘SC’) Anderson and Van Looy waited at the front of the property. As the group approached his door, the applicant rushed from the house, towards SC Allman. He was yelling and holding a large hunting knife. SC Pearson sprayed the applicant to the face with capsicum spray in an attempt to stop him, but the applicant continued towards SC Allman.
As SC Allman attempted to retreat, he fell backwards. A physical altercation ensued, in which the applicant allegedly lunged towards SC Allman and began swinging at him with the knife, and SC Pearson smashed his capsicum spray canister against the applicant’s head. SC Anderson ran over to assist, and the officers were subsequently able to remove the knife from the applicant’s possession.
As the applicant let go of the knife and attempted to get to his feet, SC Allman deployed his taser, striking the applicant’s chest. The applicant subsequently became compliant and was able to be handcuffed and restrained.
As a result of the incident, SC Allman suffered stab wounds to his hip, fingers and arm. He was conveyed to Geelong Hospital, where he underwent plastic surgery for his injuries and remained there for a number of days.
The applicant was also conveyed to hospital for his injuries (unspecified). He was released into police custody later that night, and was not interviewed.
Bail refused in Magistrates’ Court
On 9 March 2023, the applicant filed an application for bail in this Court. He was advised by the Court that, in circumstances where an application for bail had not yet been made in the Magistrates’ Court, the matter would be referred to the principal judge of the Criminal Division for consideration. On 14 March 2023, the applicant withdrew the application.
The applicant subsequently made two applications for bail in the Geelong Magistrates’ Court, on 20 March and 24 May 2023. On both occasions, Magistrate Hodgson found that exceptional circumstances existed to justify the granting of bail, however bail was refused on the basis risk could not be reduced to an acceptable level.[1]
[1]Affidavit of Shelley Buchecker filed 31 May 2023, Exhibit ‘SKB-2’.
Applicable tests for bail
There is no dispute that, because the applicant is charged with a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’), bail must be refused unless I am satisfied that exceptional circumstances exist that justify the grant of bail.
Further, if the exceptional circumstances test is met, bail must still be refused if the prosecution satisfies me that there is an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any person, commit an offence, or interfere with a witness or otherwise obstruct the course of justice.[2] If I am not so satisfied, bail must be granted.
[2]Bail Act 1977(Vic) ss 4E(1)(a)–(2) (‘the Act’).
In considering each of these statutory tests, I must take into account the relevant surrounding circumstances,[3] which in this case include at least the following matters:
[3]Ibid s 3AAA(1).
(a) the nature and seriousness of the alleged offending, including whether it is a serious example;[4]
[4]Ibid s 3AAA(1)(a).
(b) the strength of the prosecution case;[5]
[5]Ibid s 3AAA(1)(b).
(c) the applicant’s criminal history;[6]
[6]Ibid s 3AAA(1)(c).
(d) the applicant’s personal circumstances, associations, home environment and background;[7]
[7]Ibid s 3AAA(1)(g).
(e) any special vulnerability of the applicant, including being in ill health or having a mental illness;[8]
[8]Ibid s 3AAA(1)(h).
(f) the availability of treatment or bail support services;[9]
[9]Ibid s 3AAA(1)(i).
(g) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;[10]
(h) the length of time the applicant is likely to spend in custody if bail is refused;[11] and
(i) the likely sentence to be imposed should the applicant be found guilty of the offences charged.[12]
[10]Ibid s 3AAA(1)(j).
[11]Ibid s 3AAA(1)(k).
[12]Ibid s 3AAA(1)(l).
Further, in considering whether a risk of the kind alleged is an unacceptable risk, I must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
The applicant’s history, his progress in custody and his circumstances, if bailed
Evidence
Before the Court are eight (8) documents of particular relevance to the applicant’s past, his progress while in custody, and his prospects and circumstances were he to be released on bail:
(a) affidavits in support of bail filed 31 May and 9 June 2023;
(b) report of mental health response and advice service dated 29 November 2022;[13]
[13]Affidavit of Shelley Buchecker filed 9 June 2023, Exhibit ‘SKB-4’, Report of Mental Health Response and Advice Service dated 29 November 2022.
(c) bundle of mental health hospital discharge summaries;[14]
[14]Ibid Exhibit ‘SKB-5’, Thomas Embling Hospital Discharge Summary dated 24 January 2023; Exhibit ‘SKB-6’ Erskine Unit Discharge Summary dated 24 February 2023.
(d) email correspondence from Mental Health Advice and Response Service (‘MHARS’) including assessment of Dr Shashirangana Gamage on 8 June 2023;[15]
[15]Ibid Exhibit ‘SKB-7’, Email correspondence from MHARS including assessment of Dr Shashirangana Gamage on 8 June 2023.
(e) psychiatric report of Associate Professor Danny Sullivan (‘Dr Sullivan’) dated 8 May 2023;[16]
(f) Court Integrated Services Program (‘CISP’) report dated 21 June 2023; and
(g) email from Ngaire Young, Specialist Coordinator, regarding the applicant’s NDIS package dated 21 June 2023.
[16]Affidavit of Shelley Buchecker filed 31 May 2023, Exhibit ‘SKB-3’, Report of Associate Professor Danny Sullivan, dated 8 May 2023 (‘Sullivan Report’).
Family
The applicant is 50 years old. He was born in Germany and has one older sister. His father died of cancer when he was 20 years old.
The applicant has one daughter from a previous relationship, who is now 22 years old. He does not have any contact with his ex-partner or daughter.
The applicant usually resides in a bungalow on his mother’s property in Torquay.
Prior to the alleged offending, his mother and sister were the applicant’s only contacts. They continue to support him.
Education and employment
After completing primary school, the applicant moved with his father to Germany, where his father had received a work posting with Ford Motor Company. The applicant completed secondary school in Germany, and was employed as an apprentice fitter and turner at Ford Motor Company for a period before losing this role due to economic pressures. The applicant has since worked occasionally in construction, and has otherwise been in receipt of welfare benefits. He is not currently employed.
Substance use history
The applicant began smoking cigarettes at age 13. He has continued to smoke on a daily basis since.
At age 16, the applicant began smoking cannabis. He stopped using cannabis at age 25 after having a bad experience with it.
At age 18, the applicant began regularly consuming alcohol.
At age 40, around the time of the breakdown of his last relationship, the applicant began using methamphetamine intermittently. He stated that this made him feel relaxed but also led to ‘OCD behaviours’. He ceased using methamphetamines after two years.
The applicant denies using any substances, aside from cigarettes, in recent years.
Mental health
The applicant has a documented history of depression, which has been untreated for 10 years. He also experienced suicidal ideation following the end of his last relationship.
The applicant became ‘radical’ in his thinking in the years prior to the alleged offending, symptomatic of his psychotic illness. He believed that he was being targeted by a social machine, and became concerned that television was a form of control which used electromagnetic radiation. He became preoccupied with impurities such as fluoride in water, as a result of which he would not shower and would only brush his teeth monthly. He became interested in ‘natural law’, Israelites, and the sovereign citizen movement. He was also only eating one meal a day at this time.
The applicant was diagnosed with delusional disorder in August 2020 after an involuntary psychiatric admission to Barwon Health.
During his involuntary admission to the Swanson Centre in August 2020, the applicant was capsicum sprayed and restrained by police, which he found very distressing. He started to believe that the police were persecuting him, and became increasingly afraid of leaving the house. For nine months prior to the alleged offending he kept a bowie knife within reach at all times out of fear.
Since being remanded in custody, the applicant’s mental health has improved with the assistance of antipsychotic medication, and he has progressed from inpatient to outpatient mental health care. The following is noted:
(a) on an unknown date[17] following his remand in custody, the applicant was placed on a Secure Treatment Order and transferred to Thomas Embling Hospital, where he recommenced taking antipsychotic medication. It was noted his:
[17]Ibid [54], A/Prof Sullivan notes that the Thomas Embling Hospital discharge summary erroneously noted admission from 19 December 2022. It is not specified what the actual date of admission was.
thought disorder improved, and the intensity of his delusional beliefs reduced… attention to hygiene improved… engaged appropriately with staff and co-clients… beginning to develop some insight into his mental illness;[18]
(b) on 24 January 2023, he was transferred to the Erskine Unit at Ravenhall Correctional Centre, which has a full Forensicare multidisciplinary team.[19]
(c) on 24 February 2023, he was transferred to the Metropolitan Remand Centre. He has remained there since, continuing treatment on an outpatient basis.[20]
[18]Ibid [58], quoting the Thomas Embling discharge summary dated 24 January 2023. See also Affidavit of Shelley Buchecker filed 9 June 2023, Exhibits ‘SKB-4’,’SKB-5’ and ‘SKB-6’.
[19]Ibid [59].
[20]Ibid.
On 22 March 2023, the applicant was assessed by forensic psychiatrist Dr Sullivan who diagnosed the applicant with:[21]
[21]Ibid [74]-[77].
(a) schizophrenia;
(b) social anxiety disorder (now in substantial remission);
(c) recurrent depressive disorder (now in substantial remission); and
(d) substance use disorder (historic, and noted that there is no evidence that substance use aside from tobacco preceded the alleged offending).
During the assessment, the applicant stated that:
(a) taking medication has made him reconsider his previous beliefs, and that he now only holds them ‘10%’;[22]
[22]Ibid [21].
(b) he regrets his actions and now recognises that police are ‘the good guys’ and just doing their job;[23]
(c) he considers that his diagnoses of delusional disorder or paranoid schizophrenia are correct;[24] and
(d) recognises that he will need to take medication for the rest of his life.[25]
[23]Ibid [42].
[24]Ibid [26].
[25]Ibid [28].
Following the hearing of the application for bail on 14 June 2023, the applicant applied to adjourn the application part-heard in order to follow up some concerns raised by the Court about the adequacy of plans put in place for bail. Counsel for the applicant conceded that the only way the Court could be assured that the applicant’s risk of endangering the safety or welfare of any person could be managed, were the applicant to be admitted to bail, was if there was ongoing mental health treatment and oversight to ensure his compliance with treatment.[26]
[26]T1.29-T2.8 (14 June 2023).
The matter was adjourned to 22 June 2023, at which time further materials were provided by the parties including the aforementioned CISP report and email from Ngaire Young.
The applicant’s submissions
On behalf of the applicant, his counsel relies on a number of matters in combination to demonstrate that exceptional circumstances are established. Those factors include: the nature and seriousness of the alleged offending, which the applicant acknowledged was serious; that the incident occurred during a police accompanied home visit by the community mental health team; and that the victims were members of Victoria Police. It was however argued on behalf of the applicant that there are triable issues regarding the strength of the prosecution case in relation to the applicant’s mental state and intention at the time of the alleged offending, and the potential availability of the mental impairment defence.
Counsel for the applicant submitted that the psychiatric report of Dr Sullivan, dated 8 May 2023, is unequivocal in relation to the availability of the mental impairment defence.[27] Dr Sullivan’s report states:
I consider that at the time of the alleged offence, [the applicant] was aware of the nature and quality of his conduct. However, I consider that due to his untreated psychotic illness and the delusional beliefs which had led to his isolation and increasingly unusual behaviour, he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct.[28]
[27]T10.1 (22 June 2023).
[28]Sullivan Report, [83].
Criminal history
The applicant is 50 years old and has no prior criminal history. Counsel for the applicant submitted that this factor is significant for a number of reasons, including as a stand-alone matter. More forcefully, his counsel argued that ‘it underscores a clear picture’ of the applicant’s ‘significantly deteriorating mental health’.[29]
[29]T4.7-12 (14 June 2023).
Bail compliance history
It was submitted on behalf of the applicant that he has not previously been subject to bail and therefore has no adverse bail history.
Family support and stable accommodation
The applicant is supported by his mother, Suzanne Bray, and his sister.
The applicant proposes to return to his home in Torquay, which is at the rear of his mother’s property, and neighbours his sister’s property.
Special vulnerability
The applicant relies upon his mental health diagnoses and history of psychiatric admission.
It was submitted on behalf of the applicant that his deteriorating mental health had been identified shortly prior to the incident by his NDIS package coordinator, who raised concerns about the applicant’s deteriorating mental health following his official discharge from mental health services.[30]
[30]T4.15-19 (14 June 2023).
Counsel for the applicant submitted that the applicant had been engaged with mental health services in 2020 and that there had been a period of compliance before the applicant ultimately disengaged from those services.[31] Counsel for the applicant submitted that engagement with mental health services is key to ameliorating the applicant’s risk to an acceptable level.[32]
[31]T4.20-22 (14 June 2023).
[32]T4.25-26 (14 June 2023).
Availability of treatment or bail support services
Counsel for the applicant submitted that his mental health symptoms are in remission with the assistance of medication, which is reflected in Dr Sullivan’s report,[33] and that he now has good insight into his significant mental health issues.[34]
[33]T5.5-6 (14 June 2023).
[34]T5.7-8 (14 June 2023).
Counsel for the applicant submitted that when the applicant first entered the prison system, he was in the Acute Assessment Unit and placed on a Secure Treatment Order, which involved him being transferred to the Thomas Embling Hospital on 19 December 2022, where he remained for one month.[35] Counsel for the applicant submitted that he presented as ‘acutely psychotic at that stage and refused to take medication’.[36] The applicant ultimately complied with treatment, which he responded well to, and which resulted in him being transferred back to the Erskine Unit.[37] Counsel for the applicant noted that on 8 June 2023 the applicant was assessed by psychiatric registrar, Dr Gamage, as having good insight, stable mental state and that he is compliant with medications.[38]
[35]T5.21-26 (14 June 2023).
[36]T5.27-28 (14 June 2023).
[37]T5.29-31 (14 June 2023).
[38]Affidavit of Shelley Buchecker filed 9 June 2023, Exhibit ‘SKV7’.
Counsel for the applicant submitted that the offending clearly occurred in the context of deteriorating mental health, consistent with the opinion of Dr Sullivan.[39] Counsel for the applicant submitted that the applicant’s risk of endangering the safety or welfare of any person is ‘entirely manageable’ if the applicant remains compliant with medication and engaged with appropriate mental health services.
[39]T5.9-11 (14 June 2023).
An appointment with a general practitioner has been booked for the applicant for 23 June 2023 at 11:30am at Orbit Medical Group in Torquay, Victoria,[40] in addition to a telephone appointment with CISP for 23 June 2023 at 3:30pm.
[40]T4.4-6 (22 June 2023).
The applicant has a scheduled appointment to receive his next dose of anti-psychotic medication (via depot injection) on 4 July 2023.
Counsel for the applicant submitted that the NDIS package available to the applicant is comprehensive,[41] and involves immediate support by way of a support worker.[42] The package includes flexible funding for 23 hours per week, which will include transportation to support the applicant attend appointments, build capacity, and access social activities.[43]
[41]T2.20 (22 June 2023).
[42]T10.28-29 (22 June 2023).
[43]T2.21-25 (22 June 2023).
It was further submitted that the support to be provided to the applicant by CISP will ensure that the applicant is referred to the Barwon Area Mental Health Service and the Barwon Community Health Mental Health Team.[44]
[44]T3.26-30 (22 June 2023).
Counsel for the applicant further submitted that if the applicant were to be admitted to CISP supported bail, a CISP rollover date was sought for 6 July 2023 to enable the Court to review the applicant’s progress on CISP supported bail.[45]
[45]T11.2-5 (22 June 2023).
Delay and likely sentence
The applicant has been in custody since 28 November 2022. As at the date of the second bail hearing, he has been custody for 205 days (just shy of seven months).[46]
[46]T10.10.11 (22 June 2023).
Counsel for the applicant submitted that further delay following the committal mention on 4 July 2023 is very likely. The defence of mental impairment has been raised, and will be investigated further. It was submitted on behalf of the applicant that if the matter proceeds by way of mental impairment as a defence, there is a real likelihood that the applicant would, if not granted bail, spend a period of time on remand that would exceed any custodial sentence imposed.[47]
[47]T4.1-4 (22 June 2023).
It was further submitted that, should the matter not resolve, there is likely to be an extensive delay before a trial is reached in the Supreme Court of Victoria.[48]
[48]Ibid.
Counsel for the applicant urged the Court to have considerable regard to all of the circumstances surrounding the incident and submitted that in doing so, the Court can be satisfied that exceptional circumstances are established.
Unacceptable risk
Counsel for the applicant submitted that the applicant’s risk of endangering the safety or welfare of any person can be satisfactorily managed so long as the Court is satisfied that, on release, the applicant is appropriately, and with some form of assurance, linked up with mental health services as part of his bail conditions. It was submitted that the CISP program can provide that oversight, in terms of ensuring that the applicant is linked in with services immediately.[49]
[49]T8.13-19 (14 June 2023).
It was submitted on behalf of the applicant that he has an NDIS package coordinator who can provide transport to appointments and activities, which will in turn help facilitate meaningful relationships, to reduce the risks associated with his social isolation. It was argued that his mother, sister and niece are also strong protective factors for the applicant.[50]
[50]T11.27 (14 June 2023).
Counsel for the applicant submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of bail conditions and ongoing compliance with recommended mental health treatment.
The respondent’s submissions
Counsel for the respondent opposed bail on the basis that the applicant has not established the existence of exceptional circumstances justifying the grant of bail, and that the applicant is an unacceptable risk of:
(a) endangering the safety or welfare of any person; and
(b) committing an offence while on bail.
It was submitted that exceptional circumstances are not established.[51] Counsel for the respondent argued that while the availability of the mental impairment defence may satisfy the test of compelling reasons, it is not sufficient alone to satisfy the high threshold imposed by the test of exceptional circumstances.[52]
[51]T12.15-16 (14 June 2023).
[52]T12.16-22 (14 June 2023).
Counsel for the respondent further submitted that the prospect of a defence of mental impairment is not a powerful factor weighing in favour of exceptional circumstances being made out.[53] Counsel for the respondent argued that were there to be a finding of guilt in relation to these serious charges, a very significant term of imprisonment would likely be imposed.[54] It was submitted that this is a strong prosecution case and that there are triable issues regarding the prospect of a mental impairment defence.[55]
[53]T14.13 (14 June 2023).
[54]T14.8-10 (14 June 2023).
[55]T13.10-11 (14 June 2023).
In response to the applicant’s submissions, and in addressing the surrounding circumstances and unacceptable risk, counsel for the respondent made the following submissions.
Unacceptable risk
Counsel for the respondent conceded that the likelihood of risk arising cannot be considered as especially high, given the absence of any prior criminal history.[56] However, it was submitted that determining the nature of the applicant’s risk of endangering the safety and welfare of any person is less straightforward.[57]
[56]T15.17-20 (14 June 2023).
[57]T15.22-23 (14 June 2023).
It was submitted that the applicant’s mental health concerns were known at the time of the alleged offending and that the applicant’s history of non-compliance with treatment and his denial of his diagnoses increases the level of risk to an unacceptable level.[58]
[58]T16.23-29 (14 June 2023).
Counsel for the respondent submitted that there is a tension between the fact that on the one hand, the applicant’s social isolation reduces the risk he poses to the community, yet on the other hand, his social isolation may exacerbate his mental health issues.[59] It was submitted that this tension informs the risk he poses to others.[60]
[59]T17.8-10 (14 June 2023).
[60]T17.14 (14 June 2023).
It was submitted that the applicant considers himself to be a sovereign citizen with many laws not applying to him, and that he leads a largely reclusive lifestyle in a bungalow at the rear of his mother's house and with his sister living next door.
The respondent submitted that, should the applicant become combative, aggressive, or suffer a deterioration in his mental health, his mother and sister (as well as members of the public who might be required to treat or assist) will be exposed to harm.
The respondent further submitted that the applicant’s mother and sister may be reluctant to contact authorities in the event that his mental health deteriorates, particularly given recent events. The respondent submitted that whilst this may be an understandable response, it may put them and others at greater risk in the longer term.
The respondent submitted that, should these circumstances eventuate, the applicant is likely to commit an offence while on bail.
Counsel for the respondent submitted that what is before the Court in terms of reducing the applicant’s risk to an acceptable level, ‘is a plan to have a plan’,[61] which is not sufficient to reduce the risk that the applicant poses to others.[62] Counsel for the respondent further submitted that the applicant’s proposed engagement with CISP and mental health services is in a voluntary capacity, whereas a compulsory plan would have greater potential to minimise the applicant’s risk of endangering the safety or welfare of any person.[63]
[61]T12.13-14 (22 June 2023).
[62]T13.20-21 (22 June 2023)
[63]T12.28-31 (22 June 2023).
Counsel for the respondent submitted that the proposed voluntary treatment plan does not reduce such risk to an acceptable level in circumstances where the applicant holds strong views about being a sovereign citizen, and where the applicant has previously disengaged from mental health services.
Counsel for the respondent submitted that the NDIS package is the same package that existed at the time of the incident and that it is therefore not an additional protective factor.[64]
[64]T13.11-16 (22 June 2023).
It was submitted that regardless of any bail conditions imposed, the applicant’s unacceptable risk of endangering the safety or welfare of any person cannot be mitigated.[65]
[65]T17.18-21 (22 June 2023).
Complainant’s views on bail
Counsel for the respondent submitted that the complainant expresses great anxiety at the prospect of the applicant being granted bail. It was submitted that while SC Allman has largely recovered from his physical injuries, he remains significantly emotionally affected by the incident, and has taken leave from work due to the mental health impact of previous bail applications in the Magistrates’ Court.
Consideration
This is a difficult application because the alleged offending was very serious. It is fortunate that SC Allman was not more seriously injured.
I acknowledge that there are a number of people who were directly involved in the incident giving rise to this bail application and I do not lose sight of the fact that this has had an enormous impact on those individuals – most importantly among them, SC Allman.
This was not simply a scuffle. It was a very violent act on individuals who had come to help the applicant.
However, it is also necessary for the Court to balance the applicant’s mental health needs and other factors relevant to an application for bail, such as the likely outcome of the criminal charges he faces, including the probability that he will be found not guilty on the grounds of mental impairment.
The applicant is 50 years old and has no prior convictions. He has lived an otherwise blameless life. His behaviour leading up to the charged conduct became increasingly bizarre. He held a range of unusual beliefs which became more extreme and these beliefs were associated with withdrawal from society and altered behaviour. The applicant suffered from profound psychosocial decline, had no real relationships, had no employment and was dependent on his mother and sister to survive. Over time, he became irritable, suspicious and hostile.[66]
[66]Sullivan Report, [32].
It seems that at the time of and up to the charged conduct, the applicant was affected by inadequate treatment of his mental health conditions, including schizophrenia, social anxiety disorder and depressive disorder.
Dr Sullivan considered that at the time of the offending, the applicant’s persecutory delusions and specific beliefs about police underlay his attack on the police.
At the time the applicant was assessed by Dr Sullivan, he had been treated for a few months with antipsychotic medication. Dr Sullivan considered the applicant was developing an insight into the nature of his beliefs and behaviour and was regretful. Dr Sullivan is of the opinion that the predominant cause of the applicant’s personality traits that appear eccentric and maladaptive is the schizophrenia. Dr Sullivan considered that a mental impairment defence is available to the applicant.
I note that in the most recent review by the psychiatric registrar on 8 June 2023 at the Chilwell Unit, it was confirmed that the applicant continues to receive his antipsychotic medication every 4 weeks by depot. The applicant reported that his symptoms had improved markedly, he was not having any psychotic symptoms or having ideas of harming himself or anyone else. On examination, the applicant was described as presenting with stable mental state and good compliance with medication.
In an email dated 7 June 2023 from Kellie Holopainen from Barwon Mental Health Services, Ms Holopainen considered that the applicant would benefit from ongoing support from an area mental health service, meaningful activities and ongoing monitoring of his mental state. The applicant was described as responding well to his medication and was fully compliant with all aspects of treatment.
The applicant has never been in prison before and has now spent seven months in custody on remand.
I am persuaded the applicant regrets what he did and is developing insight into the nature of his delusional beliefs and behaviours. I am also persuaded that he understands the importance and need to take his medication and engage with the mental health services.
The evidence relied on by the police regarding the offending is strong, however, it also appears likely that the applicant has a defence of mental impairment available to him in respect to the alleged offending.
The applicant has a pre-existing established diagnosis of schizophrenia, but unfortunately prior to being remanded on these charges, had not received any treatment since 2020 when he was admitted involuntarily to the Swanston Centre in Geelong.
The applicant has a special vulnerability for the purposes of consideration of bail. Fortunately, since being on remand, he has been able to be medically stabilised with medication. The applicant requires active follow-up by mental health case workers and medical practitioners to ensure his mental health is adequately managed into the future.
The applicant has accommodation arranged if bail is granted, in a bungalow at his mother’s property in Torquay. He has the continued support of his mother and sister. I note that his mother is 72 years of age.
This matter is next listed for a committal mention on 4 July 2023 by which time the applicant will have spent 218 days in custody if bail is not granted. I accept that if bail is not granted, the applicant will be subject to further delay following his committal mention as the issue of mental impairment will need to be investigated.
While there is some evidence that the applicant considers himself a sovereign citizen, the critical issue is the applicant’s compliance with his medical treatment and engagement with an appropriately skilled mental health team.
For all the above reasons, I consider the applicant has established the existence of exceptional circumstances which would justify a grant of bail.
Regarding the allegation of unacceptable risk, release of the applicant on bail carries with it a risk. Underpinning that risk is a recognition of two factors:
(a) the applicant’s mental health, for which he requires assistance; and
(b) the assistance which is proposed to be provided to him.
The medical evidence suggests that provided the applicant maintains his medication and engagement with mental health services he will remain at low risk of harm to himself and others.
I am satisfied by the evidence of the applicant’s mother that his mother and sister will support and assist in monitoring and supervising the applicant while he is on bail, and will report any non-compliance with bail conditions to the police.
The conditions I propose will provide a firm foundation for the applicant’s ongoing psychiatric treatment and oversight by a combination of his GP and the Barwon Health Area Mental Health Service and Barwon Community Mental Health Team.
The regime proposed under the conditions of bail is rigorous and comprehensive and should ensure that the applicant can return to the community under a voluntary treatment regime. On that basis, I am satisfied risks under s 4E(1) of the Act are not unacceptable.
The applicant will be admitted to bail on his own undertaking with the following conditions:
1 The applicant attend the Geelong Magistrates’ Court on 4 July 2023 and then surrender himself, 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 himself into custody.
2 The applicant reside at the bungalow at the rear of 29B Golden Beach Way, Torquay, Victoria 3228, and not change that address without the leave of the Court.
3 The applicant remain at those premises between the hours of 10:00pm until 6:00am each day (‘the curfew hours’) for the duration of bail.
4 The applicant present himself at the front door of 29B Golden Beach Way, Torquay, Victoria 3228, during those curfew hours if and when called upon by a member of Victoria Police to do so.
5 The applicant report each Monday by phone to the officer-in-charge (or his or her nominee) at Geelong police station during the hours of 8:00am and 6:00pm.
6 The applicant comply with all lawful directions and recommendations of the Court Integrated Services Program (CISP) staff, and attend all appointments recommended by CISP staff.
7 The applicant attend all appointments with Barwon Area Mental Health Service and Barwon Health Community Health Team and comply with all lawful directions and recommendations of Barwon Area Mental Health Service and Barwon Health Community Health Team.
8 The applicant attend an appointment with a general practitioner, in-person, at the Orbit Medical Centre, 69 Geelong Road, Torquay, Victoria 3228, at 11:30am on 23 June 2023 and comply with all lawful directions and recommendations of the general practitioner.
9 The applicant attend an appointment with CISP, by phone, at 3:30pm on 23 June 2023.
10 In advance of attendance at:
(a) Orbit Medical Centre; and
(b) Barwon Area Mental Health Service and Barwon Health Community Health Team,
the applicant ensure that a copy of these bail conditions are supplied to the above services.
11 The applicant abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
12 As soon as he acquires a mobile phone the applicant is to provide his mobile number and the IMEI number on his mobile phone to the informant.
13 The applicant not contact, directly or indirectly, any witness for the prosecution, except the informant and Susan Bray.
14 The applicant not leave the State of Victoria.
15 The applicant reappear before the Supreme Court of Victoria for judicial monitoring to review his compliance with this order at 9:30am on Wednesday 6 July 2023, whether in-person or via audio-visual link (Webex).
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