Re Brzezowski
[2020] VSC 294
•26 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0108
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of on application for Bail by BRENDAN BRZEZOWSKI |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2020 |
DATE OF JUDGMENT: | 26 May 2020 |
CASE MAY BE CITED AS: | Re Brzezowski |
MEDIUM NEUTRAL CITATION: | [2020] VSC 294 |
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CRIMINAL LAW – Bail – Family violence offending - Subsequent contravention of family violence intervention order and breach of conditions of bail - Violent and sexual offending alleged – Modest criminal history but some previous allegations of family violence – Seriousness of offending - Strength of prosecution case – Delay – Matter to remain in summary stream - COVID-19 implications – Likely sentence – Applicant’s first time in custody - Compelling reason established – Unacceptable risk not proved – Bail granted with strict conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Lacy | Victoria Legal Aid |
| For the Respondent | Mr S Payne | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges of common assault (2 charges), unlawful assault (2 charges), sexual assault (2 charges), criminal damage, threatening to commit a sexual offence, and false imprisonment arising from offending on 25 October 2019 (Coulson charges) and charges of contravention of a family violence intervention order (‘FVIO’) (4 charges), persistent contravention of a FVIO, committing an indictable offence whilst on bail, and contravening a conduct condition of bail on 24 and 25 January 2020 (Carvalho charges).
It is agreed between the parties that because the applicant is charged with committing a number of Schedule 2 offences within the meaning of the Bail Act 1977 (‘the Act’), I must refuse bail unless satisfied by the applicant of the existence of a compelling reason justifying the grant of bail.
Procedural history
The applicant was arrested and charged with one charge of common assault by Senior Constable McIntyre on 26 October 2019 and released on police bail on the same day. On 28 October 2019, a full and final no-contact FVIO was made at Frankston Magistrates’ Court naming the complainant as the protected family member. The applicant was present at court and consented to the order. On 19 December 2019, the current assault-related charges were laid by Detective Senior Constable Coulson.[1] The applicant appeared at Dandenong Magistrates’ Court on this day, and his bail was extended on all charges, with conditions including that he reside with his parents at 74 Circle Drive, Cranbourne, that he abide by the conditions of the FVIO, and that he not contact any witness for the prosecution.
[1]The sole charge laid by Senior Constable McIntyre was withdrawn on 27 March 2020.
On 27 January 2020, the applicant was arrested and charged by Constable Carvalho with offences under the Act and in respect of breaches of the FVIO. He was remanded in custody on those charges. On 27 March, an application for bail was heard. On 9 April 2020, the application was refused on the basis that the applicant had failed to establish a compelling reason, and also on the basis of unacceptable risk. The learned magistrate also revoked bail on the Coulson charges. The applicant has remained in custody since the time of his arrest on 27 January 2020.
Both matters are next listed for contest mention on 27 May 2020 at Frankston Magistrates’ Court.
The alleged offending
Coulson charges
The applicant and the complainant commenced a romantic relationship in August 2019 having been friends for a decade. The applicant moved into the complainant’s home in Clyde North which she shares with her 23 year old daughter.
On 25 October 2019, the complainant returned home from work to find the applicant intoxicated. They engaged in a verbal argument, before the applicant told the complainant to join him in the shower in the bedroom ensuite. She initially refused to do so but eventually agreed to appease the applicant who she believed was visibly angered.
In the shower, the applicant allegedly rubbed the complainant’s vagina after touching his penis and suggesting they have sexual intercourse. He allegedly became violent towards the complainant when she refused, pushing her into the shower door and the shower rail and winding her.
As the complainant attempted to get past the applicant in the ensuite, he allegedly pulled her towel off her and pushed her forcefully onto the bed, holding both of her wrists above her head. He is alleged to have then repeatedly pushed his knee into her thigh. The complainant feared that the applicant would sexually assault her and tried to defend herself by kicking him in the genitals, causing him to punch her to the abdomen forcefully about ten times. The complainant was pinned underneath the applicant and was crying and yelling at him to get off her. She told the applicant that he had done enough damage and to leave the house, to which he replied ‘I haven’t even started yet’. He allegedly thrust his knee into her thigh one final time, before getting off the complainant and leaving the house. The applicant sustained bruising to her right wrist as a result of this incident.
Later, the applicant returned to the house and allegedly yelled ‘right, time for round two’. The complainant attempted to leave in her car but was blocked in by the applicant, who deliberately drove his vehicle across her driveway so she could not leave. The applicant approached her vehicle as she was trying to leave and thrust his hip into the driver’s side door, causing a large dent.
Following this, the complainant managed to leave the residence in her car but returned to the house to collect her dogs. She was fearful that the applicant would harm them as he had sent her a photo of one of them via text message. When she entered the house, she ran to the toilet but realised the applicant was there and so tried to shut the door again. The applicant allegedly assaulted the complainant by putting his hand between his legs and rubbing his faeces over her face and hair, before placing his forearm under her chin and pushing her up against a wall in the hallway. While she was dangling with her feet off the floor and gasping for air, he allegedly said ‘this time I am going to kill you’.
The complainant was able to break free and the applicant began hitting things in the house including punching a hole in the hallway wall. She called 000 asking them to send police right away, saying the applicant had tried to strangle her and ‘[the applicant] has gone psycho. He’s drunk too much and wiped crap all over me and dented my car’.
The applicant allegedly told her to cancel her request to 000 and continued his assault on the complainant. He threw her onto the bed, took his pants off and got on top of her. He allegedly kissed her and demanded that she kiss him back but when she refused, he pushed his forearm into her throat as she tried to push him away. He allegedly showed her his clenched fist, stating ‘I’m going to give you anal with this’. The applicant then tried to take the complainant’s pants off, while allegedly punching her to the abdomen, forcing her head into the bed and pushing his finger hard into her neck. The complainant, fearing she would be raped, tried to defend herself and he eventually got off her after she grabbed his genitalia using her fingernails.
At this point, the complainant cancelled her police request and rang her sister asking her to come and help her. The sister in turn contacted the complainant’s daughter. Both the sister and the daughter arrived at the house. The applicant was still present and was observed to behave in aggressive fashion before leaving. The complainant was observed to be in a distressed state. The complainant’s sister saw blood on the face of the complainant, and faeces on her face and in her hair. She observed blood and faeces in a number of areas of the house and saw a hole in the wall.
Police arrived and took statements and photographs. The applicant was located and arrested by police. He was conveyed to Dandenong police station, where he was observed to have injuries on his body as a result of the incident, which were photographed by police.
In his police interview, the applicant stated that the complainant had assaulted him by slapping him while they were in the shower and that he grabbed her wrist to stop her. He also stated that the complainant had punched him repeatedly in the face and pushed him into the wall, which caused the damage to the wall. He stated that the complainant’s daughter had arrived and had also ‘had a go’ at him, when he was just trying to leave.
As noted, the applicant was charged with common law assault and released on police bail. He was subsequently further charged on 19 December 2020 with the present charges.
Carvalho charges
On 28 October 2019, a full and final non-contact FVIO was granted and served on the applicant.
On 24 January 2020, the complainant received a text message from the applicant saying ‘hard day’ accompanied by a picture of him in a work vehicle. This prompted a conversation between the two of them.
On 25 January 2020, the complainant received a message via Facebook messenger asking if she was coming over. The complainant replied and visited the applicant at a motel room at around 4:00pm for five minutes before leaving. Between 4:16pm and 5:39pm, the applicant called the complainant around twenty times and messaged her thirty times. That evening, the complainant reported the breaches of the FVIO to police. While she was giving her statement, the applicant called her a further seven times and messaged her fourteen times.
The applicant attended the Cranbourne police station on 27 January 2020 at the request of informant Carvalho. He took part in an interview in which he made admissions to breaching the FVIO, saying that he contacted the complainant because she ‘wanted me to’.
The law
In applying and interpreting the Act, the Court is required to have regard to the guiding principles set out in s 1B of the Act, which include a recognition by Parliament of the importance of matters including maximising community safety to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act dictates that a person is entitled to be granted bail ‘unless the bail decision maker is required to refuse bail by this Act’. In a number of situations set out in the Act, the law dictates that bail must be refused unless the bail decision maker is satisfied of the existence of either exceptional circumstances or a compelling reason that would justify the grant of bail.
The compelling reason test applies in this case. Pursuant to s 4C(1A) of the Act, the Court is required to refuse bail unless ‘satisfied that a compelling reason exists that justifies the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of a compelling reason. In considering whether a compelling reason exists, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of a compelling reason, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
i. endanger the safety or welfare of any person; or
ii. commit an offence while on bail; or
iii.interfere with a witness or otherwise obstruct the course of justice in any matter; or
iv. fail to surrender into custody in accordance with the conditions of bail.
The respondent would bear the burden of proof in respect of the unacceptable risk test if that test arises for consideration. In considering the test, again, the Court would be required to take into account the surrounding circumstances pursuant to s 3AAA. The Court would also be required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[2]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[3]
[2][2019] VSCA 214.
[3]Ibid [43].
Personal background of the applicant
The applicant is 45 years’ old and has been employed for much of his life as a sub-contractor for an earth moving business, National Logistics. He intends to seek to recommence work for that company if released on bail. The applicant was supported by his mother and father in Court, and intends to live with them at their home in Cranbourne if granted bail. He has a 16 year old son and a 20 year old daughter from a previous long-term relationship. Both of his children reside with their mother. The applicant remains close with his son. The previous long-term relationship was with a woman whom I will call LM.
Criminal history and FVIO history
The applicant has some criminal history including findings of guilt for burglary in 1993 and unlawful assault in 2009, for which he received non-custodial dispositions. He failed to comply with a Community Based Order imposed in 1993 but successfully complied with an adjourned undertaking given in the Dandenong Magistrates’ Court in 2009. The unlawful assault relates to offending in December 2008 in which the applicant assaulted LM. The Law Enforcement Assistance Program (‘LEAP’) report in respect of this matter indicated that the applicant initiated a verbal argument with LM in the presence of their daughter and then grabbed her wrist, spat in her face and pushed her up against the oven, with his right hand around her throat. I was informed by Ms Lacy for the applicant that this event was dealt with on the basis of no more than a low-level assault constituted by a push.
As stated in the informant’s report exhibited to the affidavit in response, the LEAP database discloses two other historic instances of family violence involving the applicant which did not result in any findings of guilt or conviction, as follows:
· September 2006 – LM reported to police that while intoxicated the applicant started verbally abusing her, before head butting the door and punching a hole in the wall next to her head. The applicant then proceeded to push his forearm into her throat and force her up against a wall.
· March 2008 – LM reported an argument with the applicant but no specific details of violence were provided.
As a result of the unlawful assault of which he was found guilty in 2009 and the two other incidents outlined above, three FVIOs were issued naming the applicant as the respondent.
Applicant’s contentions
Ms Lacy relied and expanded upon the combination of matters set out in the applicant’s affidavit in proof of a compelling reason in justification for bail. These were the following:
(a) The applicant’s limited criminal history. He has only come before a court twice, in effect, for earlier matters. One of them was for a burglary, resulting in a fine without conviction. The other was for an assault which, whilst committed against a previous domestic partner, was of a low level of seriousness as reflected by the non-conviction adjourned bond imposed. The applicant has no prior convictions for offences against the Act. As for the LEAP reports of the other asserted instances of family violence offending involving LM, Ms Lacy submitted that I should attach little weight to these unsubstantiated allegations.
(b) This is the applicant’s first time in custody. He had been in custody for 116 days at the time of the hearing of the application.
(c) The strength of the prosecution case. On this score, Ms Lacy submitted that in relation to the Coulson charges, the prosecution case rests largely on the complainant, whose credibility is likely to be successfully challenged. In support of that contention Ms Lacy took me through an analysis of the various discrepancies between the two statements of the complainant, and the inconsistencies between her apparent account and the observations of the attending police. She also submitted that the medical evidence is not consistent with the level of assault described by the complainant. As for the Carvalho charges, Ms Lacy conceded that the case is overwhelming that the applicant breached the intervention order, and it is a ‘matter of perhaps him being overcharged’. She made it clear that the applicant disputes that he threatened or pressured the complainant to have her attend at the motel. That occurred, so it was submitted, in the context of a continuing sexual relationship. The offending in respect of the Carvalho charges is at the lower end of the range of seriousness of family violence offending.
(d) Delay. It was submitted that the applicant would be likely to spend something of the order of a year on remand prior to the hearing of the charges.
(e) The implications of the COVID-19 pandemic. Ms Lacy provided an email from Ms Debra Coombs from Corrections Victoria setting out in a general way some of the impact of the pandemic across the prison system. On a level personal to the applicant, Ms Lacy noted the applicant was subject to a full lockdown every second day for a fortnight in the first half of April when he was at the Metropolitan Remand Centre. The weekly visits that he had previously received from his parents and son ceased on 21 March 2020. Courses and programs within the prison have been stopped, including a drug and alcohol course in which the applicant is enrolled. Work was ceased for a time, although the applicant has returned to work in a horticultural position. In addition to the things that have actually happened, the applicant is concerned about the prospect of future lockdowns, and in particular, concerned that the virus may make its way into prison, which is a cause of anxiety to him. In many ways, it was submitted, the time being spent on remand by the applicant has been under more onerous and burdensome conditions.
(f) The availability of stable accommodation with his parents at 74 Circle Drive, Cranbourne, and the support of his parents.
(g) The applicant’s ties to the jurisdiction including his parents and his children.
(h) The availability of a surety of $3000 from his mother.
(i) The availability of other conditions to reduce the magnitude of any risk posed by the applicant.
Turning to the risk posed by the applicant, Ms Lacy submitted that it all comes down to the risk of his contacting her, whether to threaten her or for any reason. When he breached the intervention order and the bail condition in the past, he did so with her complicity. She has now made it abundantly clear that their relationship is over. He, for his part, has no interest in contacting her. There has been no contact since he was remanded. The four months in custody have provided a salutary lesson to him.
In addition to the conditions of bail proposed on behalf of the applicant in paragraph 68 of the affidavit in support, Ms Lacy suggested that the applicant would be willing to abide by a curfew.
All-in-all, Ms Lacy submitted that such risk as was posed by the applicant could be ameliorated to an acceptable level by the imposition of strict conditions.
Respondent’s contentions
Mr Payne made detailed submissions in opposition to a grant of bail, largely set out in his written outline of submissions, with a number of the issues elaborated on in Court. In the written outline he set out the legal principles, and then turned to aspects of the surrounding circumstances as set out in s 3AAA of the Act.
Mr Payne submitted that the assault-related offending in the main is inherently serious, with some of the allegations being serious examples of such charges. Some offences involved constriction to the neck of the complainant, others concerned sexual assaults upon her, and in the case of the smearing of the faeces to her face and hair, the conduct alleged was offending of a ‘most vile and depraved’ nature. The overall offending represented serious and degrading instances of family violence, a category of offending which is itself highly prevalent in society. As for the Carvalho offending, it involved a persistent pattern of behaviour and a blatant disregard for the terms of the intervention order and the conditions of bail. The respondent challenged the claim made by the applicant that the continuing contact between the applicant and the complainant was the result of an ongoing relationship. In fact, the report of the respondent indicated that the complainant had disclosed that her visit to the motel on 25 January 2020, occurred due to threats made by the applicant to the safety of her children and her animals.
In respect of the strength of the case against the applicant, Mr Payne submitted that there are a number of pieces of evidence which support the account of the complainant in respect of the assaults. As well as the content of the 000 calls in which the complainant detailed some of the specific allegations, there were the things observed by the sister and daughter of the complainant which lent strong support to her account. Furthermore, the observations by the police of damage to the car and the wall, and injuries to the face and wrist, as well as the injuries observed at Monash Health, would lend further support. Mr Payne submitted that whilst there were differences between the first and second statement of the complainant, these were explainable, and the fact is that at the core of the allegations there was consistency. Overall, Mr Payne submitted that the case against the applicant is strong.
Turning to the criminal history of the applicant, it may be limited and somewhat aged, but it is of note that the finding of guilt for assault concerned an incident of domestic violence against an earlier partner. As for the previous complaints of domestic violence made against the applicant as set out in the LEAP records, Mr Payne submitted that such allegations do not ‘miraculously just appear’ in the database. I should take into account in considering the circumstances in this case the fact that complaints of domestic violence have been made against the applicant on several occasions in the past.
In respect of the consideration in s 3AAA(1)(e)(i), it is of note that at the time of the Carvalho offending, the applicant was on bail on the Coulson charges. He repeatedly flouted the conditions of bail by maintaining contact with the complainant and not residing at the required address, the latter being something of which I could be satisfied in light of the available material about the numerous motel bookings. In those circumstances, I could have little confidence that he would not again fail to abide by bail conditions in future.
Insofar as the available family support for the applicant is relied upon, Mr Payne questioned the extent to which his parents were even aware in the past of the requirement that the applicant reside with them. They may be supportive of him, but that does not mean that they can control his behaviour.
The attitude of the complainant to a grant of bail was one of the matters highlighted in the respondent’s material. The respondent’s report indicated that the complainant remains anxious and depressed as a result of the events. She has apparently indicated that the thought of the applicant being released is ‘worse than being dead’.
Turning to the likely period of delay before the matters are heard in the Magistrates’ Court, Mr Payne did not dispute the proposition that the period may extend to early next year, meaning a delay of the order of one year. He did not seek to downplay that as a relevant consideration.
As for the likely sentence should the applicant be found guilty, the seriousness of the offending was such that a term of imprisonment would be imposed, and any such period ‘would not be insubstantial and trivial’. Mr Payne pointed out that the maximum penalty for any individual offence was two years’ imprisonment, with five years as the maximum for a combination of offences. He did not dispute, however, that a combination sentence of a CCO and a term of imprisonment would be open, and indeed, submitted that with the apparent involvement of alcohol in the offending, such a sentence may well be considered to be appropriate.
In respect of the implications of the COVID-19 pandemic, having outlined the applicable authorities on the matter, Mr Payne acknowledged that the pandemic is a relevant surrounding circumstance to be taken into account with the other matters in determining whether a compelling reason has been established, and then, if that test is satisfied, in assessing whether any risk is an unacceptable one. On the other hand, the pandemic should simply be considered as one of the many relevant factors, and should not be given any special weight over and above the other surrounding circumstances.
In conclusion, Mr Payne submitted that a compelling reason had not been shown in this case.
Turning to the question of risk, he submitted that the applicant does pose an unacceptable risk of endangering the safety or welfare of a person, namely, the complainant, committing an offence while on bail, or interfering with a witness. He relied on the same matters relied on in resisting the assertion of a compelling reason in proving an unacceptable risk. The proven history of the applicant in connection with this matter showed he could not be trusted to abide by bail conditions. Of particular concern was the fact that he knows the address of the complainant, and she only lives 12 kilometres from where he would live if granted bail.
Analysis
In considering whether a compelling reason has been established by the applicant, I am required to take into account the surrounding circumstances of the case. A sensible starting point in this process is an assessment of the seriousness of the alleged offending and the strength of the prosecution case.
The applicant conceded in the application that the offending is serious. That was a sensible concession. The offending alleges multiple acts of family violence committed by a more powerful male upon a relatively vulnerable female who would have been entitled to look to him for protection, rather than physical violence and threatening conduct. There is a serious sexual aspect to some of the charges. Others involve significant actual and threatened violence including the application of force to the neck. In respect of one of the charges, constituted by the deliberate smearing of faeces by the applicant to the face and hair of the complainant, the conduct alleged was described by Mr Payne, not unreasonably, as ‘vile and depraved’.
As for the Carvalho charges, the repeated breaches of the intervention order of which the applicant had full knowledge were themselves serious, notwithstanding the lack of proven violence or threats in connection with the unlawful contact. Not only did the applicant know that he was prohibited by the intervention order from any of the contact, but he also knew that there were specific conditions of the bail which had been granted to him in respect of the Coulson charges requiring him to abide by the conditions of the FVIO, and prohibiting contact with any prosecution witness. He flagrantly breached these requirements.
In respect of the strength of the prosecution case on the respective groups of charges, I accept that the complainant’s credit in respect of the assault-related charges will be subject to strong and justifiable attack as a result of a number of things, including the discrepancy between the observations of the attending police members and the overall account of the complainant, the many substantial differences between the allegations contained in her first statement made on the night and her second statement made some weeks later, and, perhaps, the fact of her continuing contact with the applicant in the ensuing months.
That is not to say, however, that the account of the applicant is unsupported. I have listened to the two emergency calls to 000 made by the complainant. She detailed some of her allegations in the first call, including, importantly, the assertion of the applicant having smeared faeces on her face, and she sounded distressed. The failure of the police to respond more promptly to this telephone request for help is inexplicable. In the significant period which elapsed before the attendance of the police, the sister and daughter of the complainant had come to her aid. The sister described the aggressive and confrontational conduct of the applicant after her arrival. In addition, she described seeing faeces on the face and in the hair of the complainant, and blood on her face and in various locations inside the house. Also, she observed the damage to the wall in the hallway consistent with the account of the complainant. There is material indicating that the complainant washed her face and changed her clothing before the arrival of the police, and there may end up being an explanation for the fact of the attending members failing to see the signs of blood in the house which were apparently so clear to the sister of the complainant.
In the circumstances, whilst there is clearly a prospect that the applicant will be found not guilty of some or all of the Coulson charges, I do not consider the case can be described as a weak one. Nor can it be described as especially strong.
As for the Carvalho charges, the prosecution case is strong and it was indicated during the application by Ms Lacy that the charges are likely to resolve.
The criminal history of the applicant is not lengthy, although it does include a finding of guilt for an assault upon a previous domestic partner, and an occasion on which a community correction order substituted for a fine was breached and subsequently cancelled.
The next matter for consideration in s 3AAA is the extent to which the applicant has complied with the conditions of any earlier grants of bail. On that score, the position is not promising, on account of the applicant’s deliberate and flagrant disregard of the conditions of the Coulson bail at the time of the Carvalho offending. This extended not just to the repeated contact between the applicant and the complainant, but also to the apparent failure of the applicant to reside with his parents as was required of him. The evidence indicates that in the 91 days after the applicant entered into the bail undertaking on 27 October 2019 until his arrest on 27 January 2020, he spent 67 days seemingly residing at two motels in Cranbourne. It was maintained on behalf of the applicant that his frequent use of motels was not necessarily an indication that he was staying overnight away from his parents. I do not accept that contention.
There is no question that the conduct of the applicant whilst on the Coulson bail raises a real concern as to his willingness to abide by any conditions of bail that I might impose in future.
There is a FVIO in force in this case, which is a matter I am required to take into account pursuant to ss 3AAA(1)f) and 5AAAA. There are some indications in the past of a possible tendency by the applicant towards violence against domestic or romantic partners. He has been found guilty of assaulting a former partner. In the present case, aside from the question of whether he engaged in the violent and threatening behaviour alleged, he was observed by the sister of the complainant to behave in an overbearing and aggressive manner on the night of the alleged offending, and the text and Facebook messages provided to the Court show him frequently speaking to the complainant in demeaning terms, which is by no means excusable because of the way in which she, in turn, spoke to him.
In terms of the personal circumstances of the applicant, his parents are supportive of him, and his mother is willing to act as a surety in respect of a grant of bail. With the knowledge they now have of the extent of the allegations in this case, and the lack of compliance by their son with the previous grant of bail, their strong presence in his life may have a protective effect in future. In addition, it must be noted that the applicant does have a stable work history, and is a man of relatively mature age whose history, whilst containing blemishes, does not point to a strong inclination towards criminality.
I have been informed that the complainant is very frightened of the applicant, and dreads his release on bail. I take her views into account as one of the circumstances going into the mix.
Turning to the length of time the applicant would be likely to spend on remand should bail be refused, he has already been in custody for almost four months. With the current uncertainty in the criminal justice system, I accept that this case, assuming it remains contested, will not be heard until at least late 2020, and may not be heard until early 2021. A full year on remand would be a significant period of time for a case which, whilst admittedly serious, will remain in the summary stream.
Such a period on remand would be particularly significant in light of the current onerous conditions as a result of the COVID-19 pandemic. The position in that regard is quite well understood, and submissions were made indicating the particular considerations personal to the applicant. I take into account the onerous circumstances under which the applicant would spend any period of time on remand.
In respect of the question of the likely sentence to be imposed should the applicant be found guilty of the charges he faces, on the face of it, the offending would be likely, if not certain, to attract a term of imprisonment. Mr Payne submitted that the term of imprisonment imposed ‘would not be insubstantial or tokenistic’. I accept that that is so. It was submitted by Ms Lacy and not challenged by the respondent that a combination sentence of a term of imprisonment followed by a CCO would be within the range. I accept, also, that that is correct. Whilst there is the potential for the applicant to receive a term of imprisonment well in excess of the maximum allowable in combination with a CCO, that is, 12 months, it is certainly possible that he may receive a sentence lower than the period of time he would have spent on remand should he not be bailed in the meantime, and indeed, I think that is quite likely. In the circumstances of this case, I think that is an important consideration.
In determining whether or not the applicant has discharged the onus resting on him to establish a compelling reason in justification for a grant of bail, I have carefully considered the surrounding circumstances of this case, keeping always in mind the guiding principles contained in s 1B of the Act.
Serious and distasteful though the alleged offending is, I have decided, in a very close-run thing, that the applicant has established that a compelling reason exists that justifies the grant of bail in this case.
That determination requires me to consider step 2 of the bail test, namely, the unacceptable risk test. On that score, there are worrying aspects to the admitted conduct of the applicant that raise the legitimate concern that he may again seek to contact the complainant in contravention of the conditions of bail. In considering these matters, I take into account the fact that since the offending alleged in respect of the Coulson charges, there is no allegation of the applicant again being violent towards the complainant. There are strongly challenged claims by her of subsequent threats, but no objective support for these claims at this time. There has been no contact between the applicant and the complainant since his arrest. I have been assured that he has no desire to contact her again. As for the complainant, she is frightened of the applicant and wants nothing to do with him. From what I know of her, including what I could glean from the 000 calls, she is a forthright person who would not be backward in reporting any future contact initiated by the applicant. He would fully understand this, and it could not be lost on him that were he to contact her in any way, he would almost inevitably end up in custody again.
Having carefully considered all of the surrounding circumstances, I am of the view that the risk posed by the applicant can, by the imposition of strict conditions of bail, be ameliorated so as to be acceptable.
Conclusion
On 9 April 2020, bail was refused by a magistrate who had taken great care in arriving at that decision. There is no indication that that decision was anything other than correct at that time. However, a further seven weeks have passed with the applicant remaining in custody and the COVID-19 pandemic continuing to run its disruptive course.
As things now appear to me, I am satisfied that a compelling reason exists that justifies the grant of bail in this case. Furthermore, I am not satisfied that the risk posed by the applicant is unacceptable.
For the above reasons, I am prepared to grant bail to the applicant on his own undertaking with one surety in the sum of $3,000.00 and with the following conditions:
i. That he attend Frankston Magistrates’ Court on 27 May 2020 and then surrender himself, and 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.
ii. That he reside at 74 Circle Drive, Cranbourne (‘the premises’).
iii. That he remain and be present at the premises between the hours of 10.00pm and 6.00am each day (‘the curfew hours’) for the duration of the bail.
iv. That he present himself at the front door of the premises during the curfew hours if and when called upon to do so by a member of Victoria Police.
v. That he comply with the terms of the Family Violence Intervention Order made in Case No. K12784828 or any future intervention order made against him naming [name redacted] as a protected person.
vi. That he not contact directly or indirectly [name redacted] or any other witness for the prosecution other than the respondent Detective Senior Constable Phoebe Coulson or her nominee.
vii. That he not enter or remain in the suburb of Clyde North being the area marked within the red boundary on the map attached.
viii. That he comply with the directions of the Chief Health Officer for Victoria in respect of the COVID-19 pandemic. If and when the directions of the Chief Health Officer relating to the movement of individuals are revoked or lifted, the applicant is to report to the police at Cranbourne Police Station within five days, and thereafter, to report to the police at Cranbourne Police Station between the hours of 7.00 am and 7.00 pm each Wednesday and Saturday.
ix. That he not consume alcohol or use or possess any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation.
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