Re Broes
[2020] VSC 128
•13 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0197
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by LANCE HYMAN |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 August 2021 |
DATE OF JUDGMENT: | 13 August 2021 |
CASE MAY BE CITED AS: | Re Hyman |
MEDIUM NEUTRAL CITATION: | [2021] VSC 491 |
---
CRIMINAL LAW — Application for bail — Charges of recklessly cause injury, threat to kill, assault, contravening a family violence intervention order and committing an indictable offence while on bail — Allegations of family violence — Strength of prosecution case — Availability of Court Integrated Services Program support — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA — Cases cited: Jason Joseph Roberts v The Queen [2021] VSCA 28; R v Renzella [1997] 2 VR 88; R v Madex [2020] VSC 145, Re McCann [2020] VSC 138, Re Broes [2020] VSC 128.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Nicole Menegas | Patrick W. Dwyer Barristers and Solicitors |
| For the Respondent | Mr Amitoj Singh | Victoria Police |
HIS HONOUR:
This is an application for bail by Lance Hyman (the ‘applicant’). He has been remanded in custody since 19 December 2020, a period of almost eight months, after being arrested by First Constable Lachlan McGrath and charged with the following offences (the ‘second McGrath matter’):
(a) recklessly causing injury (three charges);[1]
[1]Contrary to s 18 of the Crimes Act 1958 (Vic).
(b) making threats to kill;[2]
[2]Contrary to s 20 of the Crimes Act 1958 (Vic).
(c) assault with a weapon;[3]
[3]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
(d) aggravated assault of a female;[4]
[4]Contrary to s 24 of the Summary Offences Act 1966 (Vic).
(e) unlawful assault;[5]
[5]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
(f) committing an indictable offence whilst on bail (two charges);[6]
(g) contravening a family violence intervention order (‘FVIO’);[7] and
(h) contravening a FVIO intending to cause harm or fear (two charges).[8]
[6]Contrary to s 30B of the Bail Act 1977 (Vic).
[7]Contrary to s 123 of the Family Violence Protection Act 2008 (Vic).
[8]Contrary to s 123A of the Family Violence Protection Act 2008 (Vic).
Procedural history
At the time of the alleged offending in the second McGrath matter, the applicant was on summons for a single charge of possessing a dangerous article (the ‘Gibson matter’) on also on bail for one charge of unlawful assault and three charges of contravening a FVIO (the ‘first McGrath matter’). The charges in the first McGrath matter related to allegations made by the applicant’s former partner, KV, who is also a complainant in the second McGrath matter.
On 21 December 2020, the applicant applied for bail in the Heidelberg Magistrates’ Court in the second McGrath matter. The application was adjourned part-heard and refused by the presiding Magistrate the next day on the basis that the applicant had failed to demonstrate exceptional circumstances and was an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person and interfering with a witness or otherwise obstructing the course of justice. At this time, bail in the first McGrath matter was revoked.
On 3 March 2021, the applicant made a further application for bail in the Heidelberg Magistrates’ Court based on new facts or circumstances, being delay and the availability of bail support services through the Court Integrated Services Program (‘CISP’).
That application was refused on the basis that the applicant had failed to establish exceptional circumstances and posed an unacceptable risk of endangering the safety and welfare of any person and interfering with a witness or otherwise obstructing the course of justice.
On 9 March 2021, the charge in the Gibson matter was withdrawn and struck out in the Heidelberg Magistrates’ Court.
On 18 June 2021, in the Heidelberg Magistrates’ Court, the applicant was found not guilty of all charges in the first McGrath matter. That finding was made at least in part because the Magistrate concluded that the witness KV was an unreliable witness.
On 28 June 2021, the applicant made a further new facts or circumstances bail application in the Heidelberg Magistrates’ Court in the second McGrath matter. That application was adjourned to 14 July 2021, at which time bail was again refused. While the presiding Magistrate was satisfied that exceptional circumstances were established, the applicant was found to be an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person and interfering with a witness or otherwise obstructing the course of justice.
On 21 July 2021, the applicant filed an application for bail in the second McGrath matter in this Court. The matter is next listed in the Heidelberg Magistrates’ Court for a contested hearing on 10 November 2021.
The alleged offending
Background
There are two complainants in this matter, BC and KV.
BC and the applicant were in a sexual relationship for about 6 months approximately 15 years ago. They have remained in contact following the end of that relationship.
At the time of the alleged offending, KV had been in a four-year relationship with the applicant and was 18 weeks’ pregnant with their child. An interim FVIO dated 10 June 2020 was in place, which named the applicant as the respondent, and KV and her daughter, CE, as the protected persons. The terms of the FVIO were that the applicant not commit family violence against the protected persons or damage their property, or get anyone else to do so.
On 15 October 2020, KV reportedly gave BC a dog, which the applicant claimed belonged to him. This was a source of ongoing tension between the applicant and the complainants, with the applicant reportedly regularly driving past BC’s residence and shouting out that she had stolen his dog and was ‘dead’.
The first incident
At 1:00 pm on 18 December 2020, BC was driving through Reservoir with her sister. The applicant was driving in the opposite direction and observed them. He executed a U-turn and pursued BC and her sister back to BC’s residence.
Upon arriving at BC’s residence, the applicant parked behind BC’s vehicle over her driveway. He exited and allegedly ran at BC holding a club security lock, swinging it at BC. BC raised her right hand to protect herself and the applicant hit her hand with the club lock. This caused pain, swelling and bruising to BC’s right wrist and lower-arm.
The applicant is said to have then run into BC, causing her to stumble backwards towards her vehicle. BC leaned into her vehicle and pressed on the horn, following which her uncle exited the residence. The applicant returned to his vehicle, allegedly threatening BC, saying ‘you’re a dead dog. I’m gonna kill you. Say goodbye to your sister… because you’re dead’, before leaving.
BC reported the incident to police.
On 22 December 2020, an interim FVIO with full no-contact conditions was made in the Heidelberg Magistrates’ Court, naming the applicant as the respondent and BC as the affected family member. That order remains in effect until final order.
The second incident
At 5:00 pm the following day, 19 December 2020, police attended the applicant’s residence to arrest him in relation to the previous day’s incident. Police observed KV present with notable bruising to her eyes and cheeks and considered the applicant’s demeanour towards her at the time to be aggressive, intimidating and controlling. This included the applicant demanding that KV provide paperwork to have his dog returned, causing KV to cower from him. The applicant then allegedly put his face close to KV’s, leading police to intervene for fear that KV would be assaulted.
During that police attendance KV reported that the applicant had assaulted her twice in the preceding weeks, stating that on both occasions he had punched her to the face. Police observed injuries to the applicant’s right hand which they believed to corroborate her report. KV initially refused to provide a statement, but later did so, on 12 June 2021.
On 18 June 2021, a final FVIO with full no-contact conditions was made in the Heidelberg Magistrates’ Court, naming the applicant as the respondent and KV, CE and HLV (KV’s and the applicant’s infant daughter, who was unborn at the time of the alleged offending), as the affected family members. The exceptions to the FVIO are that the applicant may do anything permitted by a Family Law Act order, a child protection order or written agreement about child care arrangements, and may negotiate child arrangements by letter, email or text message. The FVIO remains in effect until 17 June 2022.
Arrest and interview
Following his arrest, the applicant was taken to Reservoir Police Station for a record of interview. He conceded that he had observed BC and her sister driving in Reservoir the day prior, and that he had done a U-turn and followed them to BC’s residence. He stated that he did this because they had given him ‘the middle finger’, and he wanted to know the reason why. The applicant further stated that, after he arrived at BC’s residence, she started verbally abusing him and that he then left and contacted the Reservoir Police Station. The applicant denied assaulting or threatening BC, although acknowledged that he carried a club lock in his vehicle. The applicant was remanded in custody.
The applicable legislation
This application is to be considered having regard to the guiding principles in s 1B of Bail Act 1977 (Vic) (‘the Act’), which include, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.[9]
[9]Bail Act 1977 (Vic) s 1B.
The applicant is required to establish exceptional circumstances that would justify a grant of bail because he is accused of a Schedule 2 offence within the meaning of the Act (committing an indictable offence whilst on bail),[10] which is alleged to have occurred whilst on bail for another Schedule 2 offence (using violence in the course of contravening a FVIO, in circumstances where the applicant had in the preceding 10 years been found guilty of using violence in the course of committing another offence).[11]
[10]See item 30 (An offence against the bail Act) of Schedule 2 of the Bail Act 1977 (Vic).
[11]See item 18 (Contravening a family violence intervention order or family violence safety notice in certain circumstances) of Schedule 2 of the Bail Act 1977 (Vic); Bail Act 1977 (Vic) ss 4AA(2), 4A(2).
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify his grant of bail.[12] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those in s 3AAA(1) of the Act.[13]
[12]Bail Act 1977 (Vic) s 4A(1A).
[13]Ibid s 4A(3).
The phrase ‘exceptional circumstances’ is not defined in the Act. However, it is well-established that to reach that threshold the circumstances relied upon by the applicant must, in their totality, take the case ‘out of the ordinary’. The test is a high standard, but not one that is impossible to reach. If exceptional circumstances are established, the Court must be satisfied that those circumstances also justify the grant of bail. In Jason Joseph Roberts v The Queen, their Honours Maxwell P, Niall JA and Emerton JA stated:[14]
What appears to underpin the judicial recognition of… different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending…
It is the perceived need to avert or mitigate such injustice which justifies the grant of bail — provided always that the circumstances can properly be characterised as exceptional.
[14][2021] VSCA 28, [47]-[48].
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, bail must still 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 risk is an unacceptable risk.[15] In considering whether any risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[16]
[15]Bail Act 1977 (Vic) s 4E(2).
[16]Bail Act 1977 (Vic) s 4E(3).
Finally, because the applicant is charged with a family violence offence, s 5AAAA(2) of the Act requires that the Court, in considering whether to grant bail, contemplate whether there is a risk that the applicant would commit family violence if released on bail, and, if so, whether that risk could be mitigated by the imposition of a condition of bail or a FVIO. As noted, the applicant is already the named respondent to two FVIOs protecting the respective complainants.
The applicant’s personal circumstances
The applicant is 49 years old. He is a man with low intellectual functioning. He was raised in Lalor and is one of three children. On the one hand, he reports that there were ‘no issues’ in his home life as a child, apart from finding his father to be strict. On the other hand, he reports ‘a troubled upbringing where he experienced physical abuse’ and that he witnessed his uncle murder his aunt at the age of nine.
At the age of 13, the applicant reports attempting suicide by sitting on train-tracks. Around the same age, the applicant left the family home due to not liking his father’s strict rules. He stayed with friends until securing his own accommodation in Preston at the age of 15.
The applicant has a longstanding history of addiction, commencing in adolescence, interspersed with periods of recovery. He has reportedly overdosed on heroin on several occasions, most recently in September 2020. In the lead up to his arrest, the applicant reports that he was using 2-3 points of heroin daily. Since being in custody, the applicant has been undergoing methadone pharmacotherapy which is effectively a substitution of methadone for heroin.
The applicant has had three significant intimate relationships throughout his adult life, each of which have been marked by difficult events and trauma. The first was a seven-year relationship, from which the applicant had two children. His first child, a daughter, died when she was just days old due to pulmonary dysfunction. His second child, a son, was reportedly the victim of sexual abuse, although the applicant only became aware of this recently. The applicant’s second significant relationship lasted for two years, and after it broke down that partner was killed by her new partner, who also tortured her children. The applicant’s third significant relationship was with KV, who became pregnant with twins who died in utero and were stillborn in 2018. The applicant reports that losing the twins is an ongoing source of grief for him.
At the time of the applicant’s arrest, he and KV were still in a relationship and both residing in Reservoir, albeit at separate residences. KV was 18 weeks’ pregnant with HLV at the time, who was subsequently born prematurely in February 2021. The applicant cites the birth of HLV as a strong motivator to ‘stay clean’ if granted bail. The applicant’s counsel submitted that the applicant accepts his relationship with KV is over.
Criminal history
The applicant has a criminal record spanning between 1986 and 2019, with a five-year gap between 2014 and 2019. It is a serious history and includes dispositions for offences of dishonesty, driving, trespass, criminal damage, behaving offensively, possessing a dangerous article, hindering police, using and possessing drugs, and trafficking cannabis. It also includes dispositions for intentionally causing injury, in 2012 and again in 2019, as well as contravening a FVIO and persistently contravening a FVIO in 2019. Further, it includes numerous breaches of court orders, including probation, community-based orders, suspended sentences and an intensive corrections order, and one bail offence in 2019.
The applicant’s contentions
Through his counsel, Ms Menegas, the applicant relies on a number of matters which, in combination, are argued to satisfy the court that exceptional circumstances exist that justify the grant of bail. I do not understand that it is put that any of them individually establish exceptional circumstances.
Seriousness of the offending and the strength of the prosecution case
It was conceded that the allegations against the applicant are serious, although submitted that there are genuine issues to be tried. The applicant disputes all charges against him, as well as the existence and causation of any alleged injuries.
Ms Menegas submitted that the credibility and reliability of both complainants is in issue, noting that BC and KV both have criminal histories, including histories of making false statements to police. BC’s sister, who is a witness in relation to the first incident, also has a criminal history.
With respect to the first incident, while BC’s sister is said to have witnessed the alleged incident, there is otherwise an absence of independent corroboration. It is not conceded that the photographs relied upon by the prosecution to establish injury do so, and there is otherwise no supporting medical evidence.
As for the second incident, it was noted that KV did not provide a statement to police until six months after the alleged offending. This is said to have been due to KV’s fear and anxiety, which the applicant relies on to further emphasise problems with KV’s reliability. KV gave evidence in the Heidelberg Magistrates’ Court in relation to the first McGrath matter, to the effect that her anxiety can impact on the accuracy of her memory and cause her to word things incorrectly. The presiding Magistrate in that case ultimately found that KV was an unreliable witness and had effectively described herself as such in her evidence.
As I understood it, counsel for applicant argued there were triable issues in a contested hearing and questions about the witnesses’ credibility but did not submit that the case against her client was weak.
Bail history
It was submitted that the applicant has a limited adverse bail history in the sense of there being only one previous breach of a bail order in his prior criminal history.
Outstanding matters
Now that the Gibson and first McGrath matters have been respectively struck out and discharged, there are no other outstanding matters before the courts where the applicant is the accused.
Stable Residence
The applicant is able to return to his government housing unit in Reservoir if bail is granted. The applicant has resided at this address for more than 20 years. Ms Menegas submitted that the applicant may be at risk of losing his housing if he fails to apply for a further subsidy, noting that the current subsidy lapsed in June 2021. Ms Menegas submitted that the applicant’s remand status has limited his ability to liaise with government bodies and the Salvation Army, who have assisted him with his housing in the past, to maintain his accommodation. It was unclear at the application when exactly the applicant would lose his government housing unit should he not be granted bail, specifically whether or not this would be before 10 November 2021, the date of the contested hearing for the second McGrath matter.
Special vulnerability – psychological assessment
The applicant was interviewed and assessed by psychologist Gina Cidoni via a two-hour videoconference on 5 August 2021. Ms Cidoni had previously assessed and prepared a report on behalf of the applicant on 30 July 2019. In preparing her current report, dated 6 August 2021, Ms Cidoni relied on the contents her previous report, her interview with the applicant, as well as various documentation relating to the applicant’s criminal matters and medical history.
In her current report, Ms Cidoni outlines the applicant’s background, including his criminal history, psychosocial history, education, employment, medical and mental health history, and his background of alcohol and substance use. These matters are not repeated here.
Ms Cidoni used various psychometric measures in her assessment of the applicant to test his intelligence, clinical syndromes and family violence risk. Ms Cidoni concluded that the applicant is a man of ‘very low intellect’, who has poor coping and problem-solving skills, and who has a clinical presentation consistent with persistent depressive disorder and generalised anxiety disorder. He also meets the diagnostic criteria for opiate use disorder, currently in remission with the use of methadone.
The applicant’s risk of further family violence offending was assessed as high in the context of his criminal history, substances abuse history, FVIO breaches and the repeated nature of his family violence behaviours. Notwithstanding this, it is Ms Cidoni’s opinion that this risk can be moderated appropriately with therapeutic interventions and supports. None of those interventions have commenced.
Ms Cidoni recommends that the applicant:
(a) engage with services through the National Disability Insurance Scheme (‘NDIS’), to address the needs arising from his intellectual disability (noting that Ms Cidoni previously assessed the applicant as having a full-scale IQ of 69, which falls in the extremely low range);
(b) undergo alcohol and other drug counselling, with regular supervision and testing;
(c) engage in psychotherapy to address attitudes about self and others, and to build coping abilities; and
(d) be supported to comply with the conditions of the current FVIOs and avoid contacting the complainants, and for this support to be ‘pitched at his intellectual level’.
Ms Cidoni concludes her report that saying:
Imprisonment will help Mr Hyman abstain, but it also creates habits of thinking and acting that can be dysfunctional in community adjustment. Various psychological mechanisms that are employed to adjust and survive in a prison setting become increasingly natural, second nature, and internalised. It will perpetuate his depression and can lead to becoming institutionalised. Further, access to programs and treatment in prison are generally reduced, and more so with the pandemic restrictions.
Bail support services
The applicant has been assessed as suitable for case management in the community by CISP. In a CISP report dated 9 August 2021, the applicant’s struggles with his mental health, substance addiction, anger management, as well as his history of family violence, were identified as the main areas requiring support and input. To this end, in addition to regular telephone appointments with his CISP case manager, it is recommended that the applicant see a general practitioner for a pharmacotherapy and a mental health review (appointments had been booked for same on 11 and 13 August, at the ‘Lygon Court Medical Clinic’ in Carlton and ‘Doctors on Broadway’ in Reservoir, respectively); continue with his prescribed medication, to be dispensed at ‘Lakeside Pharmacy’ in Reservoir; attend drug and alcohol assessment with an accredited worker (appointment details to be confirmed by CISP); self-refer to a Men’s Behavioural Change Program; and contact other prescribed counselling and support services as required.
The author of the CISP report, Ms Helen Souris, noted that, if granted bail, the applicant would be supported in the community by his neighbour and friend, Danielle Ready, and would be seeking to gain employment in the cleaning industry. He would also be endeavouring to work with the Department of Families Fairness and Housing to gain access to his daughter, HLV.
The applicant has not previously had an opportunity to engage with CISP, and Ms Menegas submitted that it will assist him to address some of his underlying issues. Further, with reference to the contents of Ms Cidoni’s report of 6 August 2021, it was submitted that her recommendations can be addressed and implemented through CISP and the NDIS.
Delay and likely sentence
The applicant has been on remand since his arrest on 19 December 2020, with the matter next listed for a contested hearing on 10 November 2021. If the applicant is not granted bail, he will have spent 326 days in custody up until the first day of the contested hearing. It was submitted that this delay is inordinate, especially given the applicant disputes the allegations against him and is presumed innocent. The issue of delay is further compounded by the fact that the applicant spent 19 days remanded in custody in the first McGrath matter, between May and June 2020, for charges that were ultimately dismissed. It is submitted that this will be relevant to any sentencing of the applicant in the second McGrath matter, if he is found guilty, pursuant to the principles in Renzella.[17] Further, as it stands, the applicant will have accrued an additional month of pre-sentence detention due to emergency management days credited for the restrictive custodial conditions implemented throughout the COVID-19 pandemic. In all the circumstances, the applicant’s counsel contended that the applicant’s time on remand may exceed any sentence that might be imposed if he is found guilty.
[17]R v Renzella [1997] 2 VR 88.
COVID-19 and onerous conditions in custody
It was submitted that it is a relevant consideration that the applicant has spent his entire remand period subjected to COVID-19 related restrictions. These restrictions include having to quarantine on his initial remand, having personal visits suspended, and having limited access to education and programs. If COVID-19 were to enter the prison system, the conditions would be rendered even more onerous.[18]
[18]R v Madex [2020] VSC 145, Re McCann [2020] VSC 138, Re Broes [2020] VSC 128 cited.
Notwithstanding the onerous conditions of custody, it was noted that the applicant has used his time on remand productively. The applicant has been working, has completed numerous courses and was nominated his unit representative. He currently works five days per week, with his duties including him mowing lawns, driving a tractor and emptying bins. It was submitted that his right to use such equipment demonstrates his model behaviour in custody. Further, the applicant sits on the board which meets with governance once per month to discuss ways in which the prison can be improved.
Unacceptable risk
To the extent that any unacceptable risk is alleged, it is submitted that the applicant has accepted that his relationship with KV is over after hearing her evidence to that effect at the Magistrates’ Court hearing on 18 June 2021. He has also accepted that he no longer has any entitlement to the dog that was gifted to BC. Further, he has expressed a motivation to engage in a Men’s Behavioural Change Program, as well as any other programs recommended by CISP. It is submitted that any residual risk can be moderated to an acceptable level by the applicant’s stable residence, CISP engagement and the imposition of strict bail conditions.
The respondent’s contentions
The application for bail was opposed. First, it was submitted that the applicant had not discharged the burden of satisfying the court that exceptional circumstances exist that justify the grant of bail. Second, it was submitted that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
In responding to the applicant’s material, addressing the surrounding circumstances and elaborating on unacceptable risk, Mr Singh on behalf of the respondent submitted following:
Nature and seriousness of the alleged offending
It was submitted that the allegations against the applicant are serious, involving assaults against females. In particular, it was noted that the assaults against KV occurred in a family violence context and whilst KV was 18 weeks’ pregnant. The maximum sentence for the head charges against the applicant, of threat to kill and recklessly causing injury, are ten years’ imprisonment and five years’ imprisonment respectively.
Strength of the prosecution case
Against the submission that there are significant triable issues in the case against the applicant, it was noted that various evidence is relied upon to support the applicant’s prosecution, including statements from witnesses, police officers and the complainants; photographs of the complainants’ injuries; body worn camera footage from police attendance at the applicant’s residence; the applicant’s record of interview, and in particular his admissions to following BC home and exiting his vehicle at her house; and photographs of the alleged weapon used to assault BC, which was located inside the applicant’s vehicle. It was submitted that the case against the applicant is strong.
In response to the applicant’s criticism that KV did not provide a statement until six months’ after the alleged offending, it was submitted that this was due to KV being fearful of the applicant seeking retribution. It was submitted that both complainants’ statements are consistent with their injuries, as photographed contemporaneous to the alleged offending.
KV and BC’s history of making false statements was conceded, although it was noted that the relevant offences were committed in 1999 and 2011 respectively.
Criminal history
It was submitted that the applicant has an extensive an relevant criminal history, which includes dispositions for intentionally causing injury, to KV in 2019, and to a separate complainant, TJ, in 2012. It also includes breaches of FVIOs, in addition to breaches of other court orders.
Bail history
It is submitted that the applicant does have an adverse bail history, involving a previous finding of guilt on 20 June 2019 for committing an indictable offence whilst on bail. He is also charged with bail offences in the present matter.
Stable residence
The applicant’s proposed residence is in close proximity to the residence of both complainants, being an approximate four-minute walk to KV’s residence, and an approximate 15-minute walk to BC’s residence.
Bail support services
It was submitted that the proposed CISP supports are not sufficient to address the risks the applicant poses if bail is granted. This includes the fact that the applicant has to self-refer to the Men’s Behaviour Change Program, has apparently previously missed appointments with that service, and has reportedly advised that service on a previous occasion that he believes that he has the propensity to hurt or even kill another person.
The CISP report refers to the applicant having personal support in the form of his friend and neighbour, Danielle Reading. It was asserted that the applicant has previously used Ms Reading to contravene active FVIOs. Between 29 December 2018 and 11 January 2019, Ms Reading is said to have contacted KV to pass on messages from the applicant, and allowed the applicant to contact KV directly using her phone. Further, Ms Reading is said to have contacted KV in relation to the present matter, in an attempt to dissuade her from giving evidence against the applicant. It is unclear whether Ms Reading is facing any charges in relation to these allegations.
Finally, in response to the reference in the CISP report that the applicant plans to seek employment in the community if bail is granted, the respondent noted that no actual employment had been secured. To this end, the respondent submitted that the applicant will have a lot of idle time if bail is granted, adding to his risk of contravening the FVIOs.
Delay and likely sentence
Against the submission regarding undue delay, the respondent submitted that the contested hearing had already been brought forward from 3 February 2022, to 10 November 2021. In any event, if the charges are proven, it will be submitted by the prosecution to the sentencing Magistrate that, having regard to the applicant’s criminal history, he should receive a term of imprisonment exceeding his remand period.
Report from Child Protection
In a letter dated 26 June 2021 an Advanced Child Protection Practitioner with the Department of Families Fairness and Housing (‘the DFFH practitioner’) notes that she is the practitioner working on behalf of the applicant’s infant daughter, HLV. The DFFH practitioner states that Child Protection have been involved in HLV’s welfare since an ‘unborn report’ was first made on 7 October 2020, secondary to concerns of serious family violence perpetrated by the applicant against KV. Such concerns (which are not the subject of any charges against the applicant), included allegations that the applicant had raped KV to conceive HLV; threatened to kill KV and their unborn baby; threatened to take HLV, once born, away from KV; physically assaulted KV to prevent her from contacting police for assistance; repeatedly refused to leave KV’s residence when asked; and reported to a Men’s Behaviour Change Program that he felt he could ‘hurt or kill’ another person.
On 1 April 2021, whilst the applicant was in custody, he was interviewed by Child Protection staff. During the course of that interview, he reportedly displayed limited insight, minimised incidents of family violence against KV; denied ever having assaulted KV; and stated that he was in his current predicament because police did not like him. Further, he advised Child Protection staff that he was still in a relationship with KV and that the two were engaged.
The DFFH practitioner states further in her letter that, following KV giving evidence against the applicant on 18 June 2021, she reportedly received an abusive phone call from the applicant’s friend and neighbour, Danielle Ready. This caused KV significant anxiety for 48 hours, impacting on her sleep and in turn her ability to properly care for HLV.
In concluding, the DFFH practitioner expresses strong concerns that, if granted bail, the applicant will pose a serious risk of physical and emotional harm to KV and HLV, in circumstances where HLV is a particularly vulnerable infant, having been born at just 26 weeks’ gestation.
Complainants’ views on bail
BC has stated to police that she is ‘extremely fearful’ of the applicant being granted bail. She believes the threat against her life is real, and that the applicant will harm or even kill her if bail is granted. She cites suffering from nightmares and feeling scared and paranoid following the alleged offending. She is concerned that the applicant will blame her for the charges arising from the second incident, involving KV, due to police only being at the applicant’s house on that occasion to follow up on the report that BC made the day prior. Due to the ongoing tension in their relationship stemming from the dog that was gifted to her, BC has stated to police that she would be fearful to leave her house if the applicant were granted bail. BC reports feeling safer with the applicant in custody.
KV also spoke to police about her concerns and stated that the prospect of the applicant being granted bail causes her ‘immense fear and anxiety’. She is fearful that the applicant will seek to ‘punish’ and enact revenge against her, particularly because she has now provided a statement against him. She is worried that this may involve the applicant attempting to take HLV away from her.
Outstanding investigation
The respondent submitted that there is a current investigation into an alleged sexual assault by the applicant against KV in October 2020. On that occasion it is alleged that, after KV refused to have sex with the applicant, he masturbated himself and ejaculated onto KV as she lay on the couch. This investigation is in its early stages and no charges have been laid. I cannot place any significant weight on this matter for the purposes of this application.
Unacceptable risk
Endangering the safety and welfare of any person
In support of the respondent’s concerns that the applicant will endanger the safety and welfare of any person, the following matters were relied upon:
(a) the allegations against the applicant involve him threatening to kill BC, in the context of her having been gifted a dog which the applicant said belonged to him. It was submitted, given this issue remains ongoing, that the applicant continues to pose a risk to BC. The respondent further submitted that the probability of harm against BC is elevated in circumstances where she lives in close proximity to the applicant’s proposed bail residence. The possible gravity of harm, if any asserted risk were to materialise, is magnified by the fact that BC ‘has a metal plate in her head, and one hit to her head could kill her’. It was however submitted on behalf of the applicant that he has now relinquished any claim of ownership over the dog and there is no risk that the question of the dog’s ownership will result in future violence.
(b) there is allegedly a longstanding history of the applicant perpetrating family violence against KV, including when she was pregnant with their unborn child. This risk is aggravated now that KV has provided a statement to police, and in circumstances where she lives in very close proximity to the applicant’s proposed bail address. Further, it is alleged that, at the time of the applicant’s arrest, he whispered to KV that she was going to ‘cop it’ when he got home.
(c) prior to KV giving birth to HLV, it is alleged that the applicant threatened to take HLV from KV’s care once HLV was born. HLV is particularly vulnerable, being a prematurely born infant. Child Protection, as already set out, has expressed strong reservations about HLV’s safety and welfare if the applicant is granted bail.
(d) the applicant reportedly has a history of hostile and uncooperative behaviours towards police, previously threatening to ‘take [them] on’ if they attempted to take his fingerprints, as well as being involved in other (unspecified) incidents where he has allegedly attempted to start fights with police.
(e) more generally, it is noted that the applicant has a ‘significant history’ of violent offending.
Committing an offence whilst on bail
All of the offences with which the applicant is presently charged are alleged to have occurred whilst he was on bail. Further, the applicant’s criminal record includes a disposition for committing an indictable offence whilst on bail, in addition to various breaches of other court orders including community based orders, suspended sentences and FVIOs.
Interfering with a witness or otherwise obstructing the course of justice
The respondent holds concerns that the applicant will attempt to contact the complainants and pressure them into withdrawing their statements, if he is granted bail. This was submitted having regard to the applicant’s previous FVIO contraventions, which, it was submitted, demonstrate his little regard for court orders.
Analysis and Conclusion
The first question I must deal with is whether the applicant has established exceptional circumstances which justify a grant of bail.
In this ruling, I have already referred to Roberts. Their Honours Maxwell P, Niall JA and Emerton JA in that case sought to identify what they referred to as the ‘informing principle’:[19]
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.
[19][2021] VSCA 28, [10].
As I have already outlined, it was not submitted on behalf of the applicant that the prosecution case against the applicant was weak but rather that there would be issues about the credibility of both witnesses because of their limited criminal histories, which include making false reports to police, and KV’s evidence at an earlier and separate hearing. At that hearing, the presiding Magistrate assessed KV as unreliable and dismissed charges against the applicant. KV also delayed making a statement in the current matter for some 6 months.
As to the allegations relating to BC, the additional criticism of the prosecution case is that there is no independent corroboration of BC’s version of events, despite supporting evidence from her sister.
If I had formed the view that the overwhelmingly likely outcome of the contested hearing of the matter in Magistrates Court will be the applicant’s acquittal, then it may well be able to be said his continued incarceration would be productive of injustice. That is not the position I am in. Although there are triable issues in this matter and there is some basis for the criticism of the complainants’ credibility, I cannot conclude that the evidence at the contested hearing will be so defective that the applicant will be acquitted. My ability to assess the witnesses’ credibility is limited to dated prior criminal convictions and a finding that one of the complainants was an unreliable witness at an earlier hearing before a different judicial officer. In addition, the allegations, if proved, are very serious.
A separate matter is the issue of the applicant’s mental state. He is of low IQ with disorders including an opiate use disorder. These matters no doubt contribute to his offending to some degree and all of the therapeutic interventions and supports to address these issues are at present prospective. Aside from being on the methadone program in custody, no rehabilitative programs have actually commenced. Further, whilst in custody on a methadone programme the applicant’s prospect of overdose is very low.
Psychological reports authored by Ms Gina Cidoni were filed on behalf of the applicant in support of this application. In her concluding opinion, Ms Cidoni described the applicant as having a propensity to use drugs in response to stress. He has persistent depressive disorder and anxiety. On the actuarial measure employed, his risk of reoffending is high although that risk can be mitigated with therapeutic measures. Substance abstinence is “paramount”. Ms Cidoni recommended supervision and counselling. How effective those therapeutic measures would be with the applicant in the community on bail is by no means clear to me.
As to the report from CISP which has been referred to and relied upon, many of the anticipated CISP supports have not yet been arranged. The applicant is to contact his case manager by telephone upon his release. The applicant is said to intend to seek employment as a cleaner. He wishes to access anger management supports and has apparently agreed to self-refer for that purpose. Arrangements were made for the applicant to attend a general practitioner for a mental health and pharmacotherapy review. This is all positive but, with respect to all involved, not exceptional within the meaning of the Act and reliant on the compliance of the applicant.
So far as the delay in the matter being finalised is concerned, the contested hearing is listed for 10 November 2021, 3 months from now. The primary issue pertaining to delay is whether, if refused bail in this application, the applicant will serve time in custody beyond what would be an appropriate sentence for the charged offending upon a finding of guilt. Counsel for the applicant argued that could happen. In my view, given the applicant’s significant criminal history and the seriousness of the offending, it is by no means clear that if he were to remain in custody until the contested hearing, the time he would have spent remanded in custody will exceed any likely sentence imposed on him, should he be found guilty.
The applicant also relied upon the consequences of the COVID-19 pandemic for those in custody. I accept the harshness of those consequences. But the fact is that at this stage there has been no outbreak of COVID-19 in the Victorian prison system and there is no reason to believe that such an eventuality is likely, although it is of course possible and something that would be on the mind of all prisoners. This consideration exacerbates the effect of a substantial delay, but in the context of this case, not to the extent that the circumstance is exceptional.
In summary, the criticism of the credibility of the witnesses is a factor worthy of some consideration. In my view the delay is not inordinate, and a sentence imposed for these offences may well exceed the time on remand. So far as CISP supports are concerned, they are all prospective. Whatever supports eventuate would depend on the applicant’s motivation and his ability to resist the temptation to offend. Circumstances might be different if, for example, the applicant was on the brink of participating in intensive therapy as an in-patient at a rehabilitative institution, but that is not the case.
The applicant’s mental state is unfortunate but not unusual given the circumstances and amenable to treatment in custody. The applicant’s accommodation, which he has been at for the last 22 years, adds little to the debate. He has lived there on his own and that fact contributes little except to say that he has a roof over his head. Whilst I accept the applicant’s housing may be imperilled if he remains in custody, it was not submitted that the applicant would definitely lose his accommodation if he were not granted bail and I cannot assume this will occur should he remain in custody.
Taking all these matters into consideration, in my view the circumstances in this application are not exceptional. They do not render the continued pre-trial detention of the applicant unjust.
The application is therefore refused.
42