Re Brett
[2021] VSC 10
•21 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0005
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by DANIEL BRETT |
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JUDGE: | INCERTI J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF ORDERS: | 21 January 2021 |
DATE OF REASONS | 21 January 2021 |
CASE MAY BE CITED AS: | Re Brett |
MEDIUM NEUTRAL CITATION: | [2021] VSC 10 |
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CRIMINAL LAW – Application for Bail – Unopposed application – Parties consented to the application being determined on the papers – Exceptional circumstances that justify the grant of bail made out – No unacceptable risk – Bail granted with conditions – Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | Gallant Law |
| For the Respondent | No appearances | Victoria Police |
HER HONOUR:
This is an application for bail by Daniel Brett (‘the applicant’).
On 21 November 2020, the applicant was arrested by Leading Senior Constable Shane Bourke in relation to, amongst other things, a string of burglaries in regional Victorian towns between 5 and 14 November 2020. He was charged with the following offences:
·burglary (four charges);
·theft (four charges);
·committing an indictable offence whilst on bail (two charges);
·dealing with property suspected of being proceeds of crime (two charges);
·possessing a drug of dependence (cocaine);
·possessing a drug of dependence (methylamphetamine);
·possessing a drug of dependence (ecstasy);
·possessing a drug of dependence (cannabis);
·possessing house-breaking implements;
·possessing a prohibited weapon without exemption or approval;
·possessing a controlled weapon without exemption or approval;
·driving whilst disqualified;
·failing to stop vehicle on police request;
·speeding;
·attempted burglary; and
·possessing a drug of dependence (Viagra and Quetiapine);
·handling stolen goods (two charges).
At the time of the alleged offending, the applicant was serving a community correction order (‘CCO’), imposed in the Melbourne County Court on 16 October 2020, for offences of committing an indictable offence whilst on bail; dealing with property suspected of being proceeds of crime; driving whilst authorisation suspended (two charges); knowingly deal with proceeds of crime; possessing a prohibited weapon without exemption or approval; possessing a drug of dependence (two charges); possessing a controlled weapon without excuse; and trafficking a drug of dependence.
In addition, the applicant was on summons in two separate matters. First, in relation to an incident on 29 July 2020, involving charges of using a vehicle without number plates; failing to keep a safe distance behind another vehicle; careless driving; driving whilst disqualified and using an unregistered vehicle (‘the Informant Williams matter’). Second, in relation to an incident on 9 September 2020, involving charges of driving whilst suspended and using an unregistered vehicle (‘the Informant Garbutt matter’).
The applicant has been in custody since the date of his arrest on 21 November 2020. He has previously been refused bail, in the Shepparton Magistrates’ Court, on 8 January 2021. The Magistrate on that occasion was not satisfied of the requisite test being made out and found that, in any event, the applicant was an unacceptable risk of committing an offence whilst on bail or failing to surrender into custody in accordance with conditions of bail.
In the period between the applicant’s first application for bail in the Magistrates’ Court, and his filing of an application in this Court, the prosecution revised the charges in the Informant Bourke matter and now intend to withdraw the charges of burglary (four charges); theft (four charges); committing an indictable offence whilst on bail (two charges); attempted burglary; and possessing a drug of dependence (prescription drug). As at the time of writing, this process has yet to formally occur. Presently, the matter is next listed for a mention in the Shepparton Magistrates’ Court on 26 March 2021.
Additionally, and importantly, the respondent confirmed by way of email on 18 January, and then in an affidavit filed on 19 January 2021, that the application for bail would not be opposed. The respondent requested, and the applicant agreed, that the proceeding be dealt with on the papers.
The law
Guiding principles
When interpreting and applying the Bail Act 1977 (‘the Act’), I am required to have regard to the guiding principles set out in s 1B.[1] This includes maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.[2]
[1]Bail Act 1977 (‘the Act’), s 1B(2).
[2]Ibid, s 1B(1)(a)-(b).
Applicable test
This application was originally filed on the basis that the ‘compelling reason’ test applied to the decision whether to grant bail to the applicant, by virtue of him having been accused of an indictable offence during the period of a CCO made in respect of another indictable offence.[3]
[3]Ibid, sch 2, item 1(d).
In an affidavit dated 19 January 2021, the respondent raised the possibility that the higher threshold test, ‘exceptional circumstances’, may apply under s 4AA(2)(c)(iv) of the Act due to the applicant having been accused of a Schedule 2 offence (committing an indictable offence whilst on bail)[4] during the period of a CCO made in respect of another Schedule 2 offence (trafficking in a drug of dependence).[5] However, noting that the Schedule 2 offence relied upon to uplift the matter to the higher ‘exceptional circumstances’ threshold was set to be withdrawn, the respondent ultimately deferred to the Court to determine the applicable test.
[4]Ibid, sch 2, item 30. See also the Act, s 30B.
[5]Ibid, sch 2, item 24(d).
In written submissions filed on 20 January 2021, the applicant conceded that the technical test to be applied was ‘exceptional circumstances’, although submitted that the appropriate test to be applied was ‘compelling reason’. This was said to be on the basis that the Schedule 2 offence relied upon by the respondent to uplift the matter to the exceptional circumstances threshold (committing an indictable offence whilst on bail), was erroneously charged and would not be pursued.
However, having considered both parties’ positions, I am of the view that the applicable test in this case, even with the withdrawal of the offences of committing an indictable offence whilst on bail, is ‘exceptional circumstances’. This is because:
(a) the applicant is accused of committing an indictable offence, that is, possessing a drug of dependence (Charges 7, 8, 9 and 10) and handling stolen goods (Charges 25 and 26), while on a CCO in respect of another indictable offence (possessing a drug of dependence). This means that the applicant is currently being charged with at least one Schedule 2 offence; [6] and
(b) This Schedule 2 offence is alleged to have been committed during the period of a CCO for another Schedule 2 offence, being trafficking in a drug of dependence (that is, the applicant was on a CCO for an indictable offence and a Schedule 2 offence).[7]
Pursuant to s 4AA(2)(c)(iv) of the Act, this elevates the applicable test from compelling reason, to exceptional circumstances.[8]
[6]Ibid, sch 2, item 1(d).
[7]Ibid, sch 2, item 24(b).
[8]See Re LP [2020] VSC 764 [41] (Jane Dixon J).
Exceptional circumstances
For the foregoing reasons, the exceptional circumstances test applies to this application and I must therefore refuse bail unless satisfied by the applicant that ‘exceptional circumstances exist that justify the grant of bail’.[9] In considering this issue, I must take into account the ‘surrounding circumstances’, including, amongst other things, the matters set out in s 3AAA of the Act.[10]
[9]The Act, ss 4AA(2)(c)(iv), 4A(1)-(2).
[10]Ibid, s 4A(3).
The meaning of exceptional circumstances is not defined in the Act. The relevant principles were summarised by Hollingworth J in the recent decision of Formica & Forni v Victoria Police,[11] as follows:
(a)Exceptional circumstances may be defined as something ‘unusual or out of the ordinary’;
(b)The hurdle is a high one, but should not be set so high that it is impossible for an accused person in custody to ever, or virtually ever, achieve bail; and
(c)Exceptional circumstances may be established as a result of the interaction of a variety of factors, which of themselves might not be regarded as exceptional.[12]
[11][2020] VSC 719 (Hollingworth J).
[12]Ibid [19].
If satisfied that exceptional circumstances exist, I must move to consider the unacceptable risk test.[13] That is, notwithstanding the existence of exceptional circumstances, I must still refuse bail if satisfied by the prosecutor that there is an unacceptable risk of the kind set out in s 4E(1)(a).[14] At this step, I must again have regard to the surrounding circumstances in s 3AAA and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[15]
[13]The Act, ss 4C(4) and 4D(1)(b).
[14]Ibid, s 4E(1)-(2).
[15]Ibid, s 4E(3).
The alleged offending
The following summary of events is based on the revised police summary in this matter, which omits descriptions of the alleged offending underpinning charges that are intended to be withdrawn.
Driving offences
On 1 November 2020, it is alleged that the applicant was riding an unregistered motorcycle through Stanhope whilst unlicensed. Police observed the motorcycle driving erratically and at speeds in excess of 156 kilometres per hour and attempted to intercept it, however, the motorcycle failed to stop on police direction.
Dishonesty offences
On 16 March 2020, a residential property in Alexandra was broken into and various items, including jewellery and stop-watches, were stolen. On 5 November 2020, two buildings at Elmore Primary School were broken into, following which various electronic and other items were stolen, valued in excess of $10,000.
On 11 November 2020, due to the applicant’s suspected involvement in the latter burglary, police obtained warrants to search three properties associated with the applicant.
The first warrant was for the applicant’s primary residence, being a shed at the back of a residential property in Elmore. The only other person with access to the shed was the tenant of the main residence.
In the entryway to the main residence, police located 34 electric tea light candles alleged to belong to Elmore Primary School. The tenant advised police that the applicant had instructed her to sell the candles on Facebook, as well as a number of stop-watches, several days prior.
Upon conducting a search of the shed, police located, amongst other things, the following:
·a compound bow and two arrows;
·a machete;
·a housebreaking kit;
·a small amount of powder-like substance, alleged to be cocaine;
·a small amount of crystal-like substance, alleged to be methylamphetamine;
·two tablets, alleged to be ecstasy;
·five seeds, alleged to be cannabis;
·two iPads, one belonging to Elmore Primary School; and
·a laptop.
Nothing of evidentiary value arose from the second warrant, executed at a storage shed in Tatura.
The third warrant was executed at a residential property in Tatura, where an associate of the applicant, Christopher Johnston (‘the co-accused’), was residing.
Police located various items at the Tatura residence, including a bag containing jewellery and stop-watches that are alleged to have been stolen during the Alexandra burglary. In addition, police located numerous items alleged to have been stolen during the burglaries at Elmore Primary School, including the following:
·two computer monitors;
·a laptop and charger;
·a netbook;
·a miniature iPad;
·a miniature stereo system;
·a wireless speaker dock;
·an acoustic guitar;
·a laminator;
·two pairs of glasses; and
·24 packets of brown rice and tuna.
The co-accused advised police that the applicant had contacted him on 7 November 2020 and requested to store various items at his residence. The co-accused advised further that the applicant had brought the items to his residence the following day, on 8 November 2020. Telephone records corroborate contact between the applicant and the co-accused at the relevant times, and further show that the applicant’s phone was in the vicinity of the co-accused’s residence in the early hours of the morning on 8 November 2020.
Arrest and remand
At 12:11pm on 21 November 2020, the applicant was arrested at a residential premises in California Gully. He was transported to Bendigo Police Station, where he declined to be interviewed, and was thereafter remanded in custody.
The applicant
The applicant is 36 years old. He is married with two children, aged 10 months and three years old. He has been residing in Victoria for the last three years, after moving from New South Wales (‘NSW’) for work commitments in 2017. The applicant’s wife, children and parents all reside in NSW. Ostensibly, there has been difficulties within the applicant’s marriage over the last few years.
The applicant has a history of drug-use, which he initially overcame, with his wife, some years ago. However, the applicant relapsed into drug-use over the last year in the context of his deteriorating marriage and mounting work pressures.
Criminal History
The applicant’s criminal history in Victoria is limited to the offences for which he is currently serving a CCO (detailed earlier). He also has a criminal history in New South Wales, between 2003 and 2010, including dispositions for dishonesty, driving and drug offences.
The applicant’s contentions
The applicant relies on the following matters in combination in support of the application for bail. It is submitted that, irrespective of whether the test is ‘compelling reason’ or ‘exceptional circumstances’, the requisite standard is satisfied by these matters.
(a) Strength of the prosecution case. It is submitted that the case against the applicant is, at best, specious with significant evidentiary deficits. With respect to the dishonesty charges, it is submitted that the respondent relies solely and implicitly on the statements of witnesses in whose residences the alleged stolen goods were located. At the previous application for bail, it was conceded by the Informant that there was otherwise no forensic, eye-witness or CCTV evidence linking the applicant to the burglaries. The respondent has since indicated that all burglary and theft related charges are intended to be withdrawn. In addition, the respondent intends to withdraw the charges of committing an indictable offence whilst on bail – given that the applicant was not on bail at the time of the alleged offending – and possessing a drug of dependence (Viagra and Quetiapine) given that the applicant had prescriptions for the relevant drugs. Finally, with respect to the driving charges, it is submitted that the only evidence linking the applicant to the driving offences is ‘alleged clothing identification’, which is not further particularised in the material. Overall, the applicant relies on the fact that the prosecution has on its own initiative determined to withdraw 12 charges against the applicant, including the most serious charges, as indicative that the case against the applicant is weak.
(b) Criminal history. The applicant has a limited criminal history in Victoria. Notwithstanding a more extensive criminal history in NSW, it is noted that the applicant’s offending history was intrinsically linked to his drug-use and ceased when he went into recovery from his addiction. This is evidenced by the fact that there have been no dispositions on the applicant’s NSW criminal record since 2010. As noted, the applicant relapsed into drug-use over the previous year. It is submitted that it was in this context that the applicant’s offending behaviours resumed.
(c) Suitable accommodation. It is proposed that the applicant reside with his grandmother and his aunt in Brighton, if bail is granted. Ms Leander Brett, in an affidavit filed 21 January 2021, confirmed this arrangement, and that she would call the police if the applicant ‘sets one foot wrong’. Ms Brett also noted that the applicant had lived with them before.
(d) Special vulnerability. The applicant is said to suffer from anxiety and depression, and has compressed discs in his back. It is submitted that these conditions render the applicant more vulnerable in custody.
(e) Availability of treatment and bail support services. The applicant contends that he has abstained from drug use during his incarceration, and in support of this relied on a negative urine screen result dated 19 December 2020. If bail is granted, it is intended that the applicant address his drug-use through intensive treatment and counselling with Forensic Alcohol and Other Drug Specialist, Karly Doyle. Ms Doyle, who works with ‘ONTRACK Counselling and Consulting’, is able to conduct appointments with the applicant on a twice-weekly basis, to be reduced over time as appropriate. Ms Doyle can also assist the applicant in organising regular urine drug screens through his general practitioner, if required. In addition to private counselling, the applicant will also have access to treatment and supervision under the conditions of his CCO.
In a memorandum dated 19 January 2021 from Echuca Community Correctional Services, the Supervisor of the Case Management and Court Services team set out the support services that the applicant could receive through the supervision under his CCO. The memorandum confirmed that if the applicant were released on bail, he would be required to report twice a week on telephone. He would also be referred to the Australian Community Support Organisation (‘ASCO’) for an assessment by a clinician and if necessary, treatment and counselling. This is through the Community Offender Advice and Treatment Services (‘COATS’) team within ACSO. Finally, the applicant would be required to visit a general practitioner to determine whether he requires treatment for mental health, and if so, the applicant would be required to adhere to those recommendations to comply with his CCO.
(f) Delay and likely sentence. The applicant has been in custody since the date of his arrest on 21 November 2020. It is anticipated that there will be a further delay of at least several months before the matter proceeds to a contested hearing. In view of the applicant’s limited recent criminal history, and the fact that a significant number of charges are set to be withdrawn, it is submitted that the applicant’s period on remand is likely to exceed any sentence that might be imposed if he were to be found guilty of the charges against him.
(g) Onerous conditions in custody. The applicant’s time on remand has been more burdensome due to the COVID-19 pandemic. Specifically, he has been subject to increased periods of isolation; limited access to rehabilitative programs; suspension of personal visits; and increased stress regarding loved ones and the possibility of further lockdown. These hardships are compounded by the difficulties the applicant already experiences with his poor mental and physical health in a custodial environment.
The respondent’s contentions
As noted above, the respondent does not oppose the application for bail. It is the respondent’s position that the applicant has satisfied the requisite threshold test, be it compelling reason or exceptional circumstances (as inferred, the respondent took no clear position on this point), and that any risk of the kind described in s 4E(1)(a) can be ameliorated to an acceptable level through the imposition of appropriate conditions of bail.
In support of this position, the respondent notes that the following (more serious) charges against the applicant will be withdrawn:
(a) Charge 1 – Burglary
(b) Charge 2 – Theft
(c) Charge 3 – Burglary
(d) Charge 4 – Theft
(e) Charge 5 – Committing an indictable offence while on bail
(f) Charge 11 - Committing an indictable offence while on bail
(g) Charge 19 – Burglary
(h) Charge 20 – Theft
(i) Charge 21 – Attempt to commit indictable offence (burglary)
(j) Charge 22 – burglary
(k) Charge 23 – theft
(l) Charge 24 – possess drug of dependence
Analysis
As observed, the applicant was arrested on 21 November 2020 and has been on remand since that time. The matter is next listed for a mention in the Shepparton Magistrates’ Court on 26 March 2021. This application for bail had been opposed up until 18 January 2021. Having reviewed the material, Victoria Police, who have conduct of the application for the respondent, informed the Court by email that the application was not opposed and separately suggested that the matter be heard on the papers. Solicitors for the applicant agreed that the matter could be dealt with on the papers.
At the Court’s request the parties settled the conditions appropriate for the grant of bail.
For completeness, I am satisfied that the concession on behalf of the respondent is appropriate.
I am satisfied that the applicant has demonstrated exceptional circumstances that justify the grant of bail.
The first relevant factor is that the prosecution has on its own initiative determined to withdraw 12 charges against the applicant, including the most serious charges. Second, the applicant has a limited criminal history in Victoria. Having said that, I note that the applicant has more a more extensive criminal history in New South Wales. Further, his offending is clearly linked to his drug use and ceased when he went into recovery from his addiction. As noted, this is evidenced by the fact that there have been no dispositions on the applicant’s New South Wales criminal record since 2010. The applicant relapsed into drug use over the previous year. Third, the applicant has suitable accommodation in that he will reside with his grandmother and his aunt in Brighton if bail is granted. Fourth, the applicant has a special vulnerability in that he suffers from anxiety and depression and has compressed discs in his back and these conditions render him more vulnerable in custody.
Fifth and importantly, if bail is granted, the applicant will address his drug use through intensive treatment and counselling with Forensic Alcohol and Other Drug Specialist, Karly Doyle. The first appointment with Ms Doyle is on 25 January 2021. Ms Doyle works with ONTRACK Counselling and Consulting and is able to conduct appointments with the applicant on a twice weekly basis, to be reduced over time as appropriate. Ms Doyle can also assist the applicant in organising regular urine drug screens through his general practitioner. As detailed, the applicant will also have access to treatment supervision under the conditions of his CCO.
Sixth, the applicant has bail support services in that he has been deemed suitable for a further assessment and referral by ACSO if he is granted bail. Seventh, the applicant has been in custody since 21 November 2020 and his case is listed for a mention at the end of March 2021. Given a significant number of charges are set to be withdrawn and the applicant’s limited recent criminal history, I accept that the period on remand is likely to exceed any sentence that might be imposed if the applicant is found to be guilty of the charges against him. Finally, I accept that the applicant’s time on remand has been more burdensome due to the COVID-19 pandemic.
It was not contended by the respondent that the applicant was an unacceptable risk on bail and I am satisfied in any event that he is not.
Conclusion
I ordered that the applicant be admitted to bail on his own undertaking and on the following special conditions.
(a) He attend the Shepparton Magistrates’ Court on 26 March 2021 for a mentions, and then surrender himself, and must not depart without leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody.
(b) He reside at 4 Ebden Street, Brighton in Victoria with his aunt Leander Brett, and not change that address without leave of the Court.
(c) He remain at that residence between the hours of 9:00pm and 7:00am each day for the duration of the bail, unless in the company of Ms Leander Brett or to fulfil employment commitments.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of the Victoria Police to do so.
(e) Ms Leander Brett immediately notify the informant if Daniel Brett breaches any conditions of bail.
(f) He 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.
(g) He attend an appointment with Ms Karly Doyle, Forensic Alcohol and Other Drug Specialist at ONTRAK Counselling & Consulting, on 25 January 2021 at 5:00pm. He comply with all lawful directions made, including treatment or counselling as recommended by Ms Karly Doyle or a nominee of ONTRACK Counselling & Consulting.
(h) He comply with the Community Correction Order made on 16 October 2020 in the County Court of Victoria by Judge Quin for case number AP-20-1104.
(i) He not contact, directly or indirectly, any witness for the prosecution, except the informant or their nominee.
(j) He not leave the State of Victoria.
(k) He not drive a motor vehicle.
(l) He not attend the townships of Elmore or Tatura, in Victoria.
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