Re Buckingham
[2022] VSC 18
•25 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2021 0380
| In the matter of the Bail Act 1977 |
| and |
| In the matter of an application for bail by Lucas Buckingham |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 January 2022 |
DATE OF JUDGMENT: | 25 January 2022 |
CASE MAY BE CITED AS: | Re Buckingham |
MEDIUM NEUTRAL CITATION: | [2022] VSC 18 |
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CRIMINAL LAW – Application for bail – Applicant charged with reckless conduct endangering serious injury, assault and making threats to kill – Drug use and mental health concerns – Proposed bail to residential rehabilitation facility – Significant delay until trial – Compelling reasons established – Unacceptable risk not established – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4A, 4C, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Singh | Office of Public Prosecutions |
| For the Accused | Mr C Tom | Victoria Legal Aid |
HIS HONOUR:
Introduction
By application dated 21 December 2021 Lucas Buckingham, (‘the applicant’) applies for a grant of bail from this court.
The applicant was arrested on 7 November 2021 and is currently remanded in custody on three charges of reckless conduct endangering serious injury;[1] three charges of assault (common law); and three charges of making threats to kill.[2] The charges relate to alleged family violence offending against his then partner (‘the complainant’) and her two young children.
[1]Contrary to s 23 of the Crimes Act 1958 (Vic).
[2]Contrary to s 20 of the Crimes Act 1958 (Vic). These charges were filed after the applicant’s remand.
The current remand period is the applicant’s first time in custody. He is not currently, nor was he at the time of the alleged offending, subject to charges in any other matter. He has a criminal history which is limited and bears little practical relevance to the current application.
The applicant has been twice refused bail in the Latrobe Valley Magistrates’ Court. On 8 November 2021, he was refused bail on the basis he was an unacceptable risk of endangering the safety and welfare of any person.[3] Later, on 14 December 2021, he was refused bail on the basis that following the laying of the threatening to kill charges he had not shown a compelling reason justifying the grant of bail, and was considered to be an unacceptable risk of endangering the safety and welfare of any person and committing an offence on bail.
[3]The applicant was, at that time, considered to be prima facie entitled to bail as the threat to kill charges had at that stage not been laid.
On 12 November 2021, a Magistrate uplifted the charges against the applicant to the indictable stream. On the same day the court made an interim family violence intervention order (‘FVIO’) against the applicant protecting the complainant and her two children which contained full no-contact conditions. The FVIO was varied on 20 December 2021 — due to the complainant being pregnant with the applicant’s child — in order to allow him limited contact with the complainant regarding her pregnancy. The FVIO remains in effect until final order.
The applicant’s case is next listed in the Latrobe Valley Magistrates’ Court for committal mention on 11 February 2022. Circumstances relating to the hearing of the applicant’s trial will be discussed below.
The application
The application is supported by an affidavit sworn by Becky Nowak, solicitor of Victoria Legal Aid, dated 21 December 2021. Various exhibits are attached to the affidavit. Counsel for the applicant also filed detailed written submissions in support of this application, being dated 20 January 2022.
In response, the case for the respondent is supported by the affidavit of Scott Kaiser, solicitor of the Office of Public Prosecutions, dated 11 January 2022. Various exhibits are also attached to this affidavit.
At the beginning of this application counsel for the respondent indicated that it was now conceded that compelling circumstances have been made out by the applicant. In those circumstances counsel indicated that the respondent would not trouble the court by putting forward arguments in respect of this particular issue. It is of course a matter for the court as to whether a compelling reason has been shown. However, the concession made is nevertheless of significance to the way in which this matter was approached by the parties. Having made the concession, the respondent made it clear that the grant of bail was otherwise opposed, with the application proceeding on the basis the applicant represented an unacceptable risk, as understood by the Bail Act 1977 (Vic) (‘the Act’).
The alleged offending
By the time of the alleged offending, the applicant and complainant had been in an ‘on-off’ relationship for at least a year.[4] During that relationship, the complainant lived in Moe with her two children, aged four and six years old. The applicant lived with them intermittently.
[4]There are conflicting references within the material as to whether the relationship was for one or three years.
The complainant alleges that the applicant was controlling from early on in the relationship. More proximate to the alleged offending, there was an escalation in his drug use and a shift in aggression from being verbal to physical. In or around May 2021, the complainant took the applicant to a doctor due to her concerns for his mental health. He was prescribed antidepressant medication.
On 6 November 2021, the complainant received four missed calls from an unknown number. At the time, she and the applicant were not in the relationship and had not been speaking for about a month. However, she called him to see if it was him who had been trying to contact her, which he confirmed. He told her that he had injured his knee and needed to get to a hospital. The complainant picked him up and took him to the hospital.
Later that same day, at about 1:30pm, the complainant drove with her children to collect the applicant from the Latrobe Regional Hospital in Traralgon. During the return journey through Moe she and the applicant began arguing. As a result, the applicant demanded to be let out of the car and attempted to open the front passenger door while the complainant was still driving. While the car was moving forward on the road, he then pulled the handbrake, causing the car to screech to a halt. The children started crying, to which the applicant responded by telling them to, ‘shut the fuck up’.
At that point, the complainant started hitting the applicant and demanding he get out of her car, telling him that things were over between them and that she never wanted to see him again. When getting out of the car, he picked up a five-litre can of fuel that had been lying in a footwell, saying, ‘alright, you’re never going to see me again’. He then began pouring the fuel over the front windscreen. The complainant sped away from the scene with the front passenger door still open, and the applicant threw the fuel can after her. The incident was observed by several witnesses, some of whom have made statements to police about what they saw.
At 11:20pm that day, the applicant handed himself in to police following the publication of media releases about the incident. During a police interview, he made admissions to the alleged offending, including opening the complainant’s car door while she was driving, pulling the handbrake, yelling at the children, and pouring petrol over the car until the complainant drove away. He stated with respect to the incident:
I don’t know what come [sic] over me. I just seen [sic] the jerry can there and was like, “Fuck you”. And I just, I don’t know, I just flipped … I can’t control it, like, I’m going off.
When asked what his intention was, the applicant stated:
I didn’t have any intention – I think … I didn’t have a lighter on me or anything. It’s not dangerous – to set ‘em on fire is ridiculous. It’s just a stupid thing out of anger.
In the interview the applicant conceded that the lives of the complainant and her children, as well as the general public, were put in danger by the incident. He was arrested and remanded in custody.
The applicable legislation
Guiding principles
This application is governed by the Bail Act 1977 (‘the Act’), which is to be applied and interpreted having regard to the guiding principles in s 1B(1).[5] This includes — 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.
[5]Bail Act 1977 (Vic) (‘the Act’), s 1B(2).
The compelling reason test
Because the applicant is charged with a Schedule 2 offence within the meaning of the Act — that is, threatening to kill which is also a family violence offence[6] — bail must be refused unless he can satisfy the Court that a compelling reason exists that justifies the grant of bail.[7] In determining this question, the Court must have regard to the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[8]
[6]Bail Act 1977 (‘the Act’), Schedule 2, item 7.
[7]Ibid ss 4A(3) and 4C(1)-(2).
[8]Ibid s 4C(3).
Meaning of compelling reason
The phrase ‘compelling reason’ is not defined in the Act. In Rodgers v The Queen, Beach, Kaye and Ashley JJA summarised the relevant principles, as follows:[9]
(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.[10]
[9][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[10]Ibid [43] (footnotes omitted).
The unacceptable risk test
Even if satisfied that a compelling reason justifying a grant of bail exists, the Court must still refuse bail if satisfied by the respondent that the applicant poses a risk of any of the matters outlined in s 4E(1)(a), and that such a risk is unacceptable. The Court must again have regard to the relevant surrounding circumstances in doing so, and consider whether there are any conditions of bail to moderate risk so that it is not unacceptable.
Family violence risks
The Court is required to make inquiries of the respondent as to whether there is in force a FVIO, a family violence safety notice or a recognised domestic violence order against the applicant.[11] The respondent has confirmed that the applicant is subject to an interim FVIO with limited contact conditions, protecting the complainant and her children.
[11]Ibid s 5AAAA(1).
Further, because the applicant is charged with family violence offences, the Court must consider whether — if he were released on bail — there would be a risk that he would commit a family violence offence, and if so, whether that risk could be mitigated by the imposition of a bail condition, or the making of a FVIO.[12]
[12]Ibid s 5AAAA(2).
The applicant’s personal circumstances
The applicant is 22 years old. He was raised in a sibship of four, largely in the Gippsland area. He experienced trauma and instability in the family home, including sexual abuse at the hands of his father, who was otherwise often absent for significant periods of time without explanation.
The applicant’s mother also had her own struggles, having borderline personality disorder and issues with addiction. This led to periods of homelessness for her and the children, and compounded existing instability in the applicant’s schooling trajectory. In addition, the applicant’s mother commonly had partners who were physically abusive towards her, the applicant, and his siblings.
At the age of 14, the applicant started working to support himself. He left school in Year 11 and moved out of his mother’s home. He obtained an apprenticeship as a cabinet-maker in Warragul the following year when he was 17, which he completed in September 2021 — some two months prior to his remand. He remained working with the company up until his arrest.
In the period leading to the applicant’s remand he was abusing alcohol and cannabis on a regular basis. He also struggled with his mental health, and was diagnosed with borderline personality disorder, depression and anxiety.
Criminal history
The applicant’s criminal history is confined to a single offence of speeding, for which he was sentenced in 2019 by the Latrobe Valley Magistrates’ Court to a 12-month adjourned undertaking. The matter was dismissed upon the applicant’s successful compliance with the undertaking, which included the completion of a road trauma awareness course. It was submitted in this application that to some degree this demonstrated the applicant’s ability to comply with undertakings given to a court.
Furthermore it was submitted that the applicant having surrendered to police of his own volition on the night of the offence, contributes to illustrating his capacity to engage honestly with police, and adhere to bail conditions.
The applicant’s contentions
The applicant filed a detailed written 14-page outline of argument, supplemented by oral submissions. In short, the applicant relies on the following matters, in combination, to show a compelling reason exists justifying the grant of bail.
Nature and seriousness of the alleged offending
The applicant does not disagree that the allegations against him are serious. It was noted that the petrol was sitting in the footwell of the complainant’s motor vehicle as she had been assisting her mother with mowing lawns, and the fuel can had been in the car resulting from that. Consequently, there is no suggestion that the applicant placed the fuel can in the car. Rather what was submitted was that the events concerning the fuel took place spontaneously in the context of an argument that started inside the car, and escalated.
Strength of the prosecution case
The above observed, it is intended that at least some of the charges against the applicant will be contested. Whilst it appears not contested as to the physical movements of the applicant in pouring fuel on the windscreen of the motor vehicle, it is submitted that there is a lack of clarity as to how the prosecution intends to put its case, particularly in relation to the reckless conduct endangering serious injury and threat to kill charges. Further, it is submitted that the evidence on those charges is insufficient. The particular issues raised by the applicant can be summarised broadly as follows:
(a) There are reliability issues with one of the witnesses, Donald Cross, who said in his statement that the applicant said, ‘I am going to kill you’ multiple times during the incident, and ‘pour[ed] fuel all over the inside of the vehicle, over the female driver and all over the children in the backseat’. It is submitted that both assertions are inconsistent with the balance of the evidence. First, with respect to the threat to kill charges, the complainant said the applicant ‘wasn’t saying anything’ at the relevant time. Second, with respect to the reckless conduct endangering life charge, both the complainant and her son nominated exterior parts of the car when describing where the fuel was poured by the applicant (being the roof and windscreen, and ‘front of the screen thing’, respectively), and arson chemist John Kelleher detected no evidence of flammable liquid within the interior of the car.
(b) The particulars of the charge for reckless conduct endangering life are that the applicant poured petrol onto a vehicle containing the complainant, and then attempted to light that vehicle on fire. The conduct relied upon as constituting an attempt to light the vehicle on fire is not clear. To the extent that it may be alleged that a lighter was in the applicant’s possession at the relevant time to establish such conduct, it is submitted that none of the witnesses, including the complainant, identified seeing the applicant with a lighter.[13] To the extent that the act of pouring fuel over the vehicle alone might be said to constitute such conduct, it is submitted — with reference to the case of R v Abdul-Rasool[14] — that there is no evidence that the applicant had any foresight of risk of ignition, which is supported by statements made in his record of interview, including:
[13]The witness Donald Cross provided two statements. The first said ‘the applicant was trying to light a cigarette lighter … to set the car on fire’, and the second denied seeing the applicant with a lighter.
[14][2008] VSCA 13 (Chernov and Redlich JJA and King AJA).
Q125: What was your intention when it came to the fuel?
A125: I wasn’t intending at all - there was no - it wasn’t planned. It wasn’t – it’s just frustration. I don’t know. I guess it was … I don’t know what was like, coming over me. I don’t know what I was thinking. It was just stupid.
Q126: What do you think might have happened if it caught alight?
A126: I don’t see how that would have been possible but obviously it wouldn’t have been great. It wouldn’t have been great for anyone.
(c) The expertise of arson chemist John Kelleher to assess the risk of ignition is not conceded, and the admissibility of his opinion on this point is in issue. In particular, it is submitted that Mr Kelleher’s evidence is speculative and cannot establish any cogent basis for calculating the risk of ignition in this case.
Criminal history
The applicant has a limited criminal history, as described above, and as a result has no adverse bail compliance history. Furthermore, the applicant was not on bail or summons, or subject to any other conditional liberty, at the time of the alleged offending.
Family support and stable accommodation
The applicant is strongly supported by his older sisters, Vanessa and Jasmin. Vanessa gave evidence on behalf of the applicant at his previous bail application, and is willing to offer her home in Rokeby to him if bail is granted. This offer is subject to the applicant first completing a residential rehabilitation program, detailed further below.
Youth
The applicant is a young person in custody for the first time. This has had a salutary and deterrent effect on him, and its relevance to the application is said to be threefold. First, it renders him more vulnerable in custody, particularly in adult custody. Second, it renders him more susceptible to negative peer influences. It is submitted that there is a community interest in avoiding a young person’s exposure to an environment such as prison, which normalises criminal behaviour, for a protracted period. Third, his youth increases his prospects of rehabilitation. This is relied upon particularly given there are age-appropriate interventions available to him in the community as an alternative to remand.
Special vulnerability
The applicant has a history of poor mental health and self-harming behaviours. This is addressed in a letter of Dr Syed Alam, consultant psychiatrist, dated 29 April 2021, which diagnoses the applicant with borderline personality disorder and chronic major depressive order — moderate-severe, in the context of multiple ongoing stressors and against a background of childhood trauma. The applicant also relies on a ‘Health Summary Sheet’ from Dr Alex Brohnson of Ashby Street Medical Clinic in Moe, dated 8 November 2021, which notes anxiety and depression under the heading ‘Current active problems’.
In addition to the applicant’s poor mental health, he relies on the state of his physical health — in that he is suffering pain and discomfort due to untreated ligament damage in his knee. Prior to his remand, the applicant was in a leg-brace and receiving treatment for this issue, however, since his remand has had to have his leg-brace removed and has not been able to access any further assessment or treatment.
Availability of treatment at a residential rehabilitation facility
The applicant has been offered a position in a three-month residential program offered by Gippsland Youth Residential Rehabilitation Centre (‘GYRRC’) in Traralgon. The availability of this placement is confirmed in a letter of Kerry-Ann Faulkner, Youth AOD Program Counsellor and Enrolled Nurse at GYRRC, dated 20 December 2021. In her letter, Ms Faulkner noted that the program offered is based on a dialectical behavioural therapy model, and provides a range of structured daily activities and therapies, including individual counselling and group sessions. She assessed the applicant over two hours sometime prior to preparing her report on 20 December 2021, and, as a result of that assessment, considered that his treatment plan — if admitted to the program — should focus on emotional regulation, relationship building and setting healthy boundaries, triggers for substance use, the correlation between substance use and offending, high-risk situations and coping mechanisms. Ms Faulkner noted that, if admitted to the program, the applicant would be required to remain on-site, unless permission to leave were granted by the Court. Ms Faulkner otherwise confirmed that GYRRC would work with any conditions set by the Court if bail were granted, including for example facilitating urine screens and notifying the Informant if the applicant were to breach any of the conditions of his bail.
The applicant called evidence from Ms Faulkner on the application before this court. Ms Faulkner confirmed that she is one of the drug and alcohol program counsellors, and also a team leader at the GYRRC. Her role includes providing counselling on a one-on-one basis to young people within the program. She also runs and facilitates groups on a daily basis, attends care team meetings, liaises with external stakeholders and police, supervises other counsellors within the program and assists with other operations. Building on the letter exhibited to the affidavit in support of the application, she outlined some of her experience working in community corrections, specifically within the drug court and youth justice environment, having worked at drug court for five years. In that setting, she managed high risk offenders that had been released from custody on two-year orders. She has worked with offenders who have exhibited substance abuse, but also high-risk behaviour within family violence. Most of her clients had been high risk, all of whom had a dual diagnosis, including substance abuse issues as well as mental health, acquired brain injuries, schizophrenia and bipolar disorders. Ms Faulkner developed the treatment plan proposed for the applicant and pointed out that she would be working on drug and alcohol issues, including one-on-one counselling, working with the applicant’s ‘triggers’, and his high-risk situation relating to relationships, and working with coping mechanisms and counselling techniques.
Ms Faulkner would also be working on the applicant’s mental health and ensuring that he would attend medical practitioners to obtain a mental health care plan, linking with a psychologist if necessary. She confirmed that having interviewed the applicant he did not appear to have concerns about taking medication, and that he had felt that his mental health was improving whilst in custody. He was not opposed to continuing that within the treatment centre. She made it clear that if the applicant was to be released on bail, an appointment with a general practitioner would be arranged immediately, to which she would accompany the applicant. She further described the ongoing program that would take place on the applicant’s return to the facility. Broadly, she described the degree of ongoing support provided to the applicant in the event that he attended the program.
In further support of his argument on this aspect the applicant called evidence from Scott Forrest on the application. Mr Forrest is the Program Manager for the GYRRC. His role involves overseeing all operations and aspects of the program. He has a degree in sociology, an advanced diploma in community sector management, two diplomas in alcohol and other drugs in community welfare, and a Certificate IV in mental health, family violence, training and education. Furthermore, Mr Forrest spoke of having had 17 years of experience in the field; that he sat on the board of Headspace Youth; and that he had five years of experience with the Latrobe Community Health Service overseeing complex programs including family violence, alcohol and other drugs, with years of experience working with mental health and drug-addicted persons. Mr Forrest confirmed that although the program is in its early stages, it is funded through the Department of Health, with the Uniting organisation having successfully tendered to conduct the program. Further, the program is run through the Department of Health, including not just funding arrangements, but also risk incident reports, risk assessments, all of which go through the Department. He described a two-year process that had led to the accreditation of the program. Furthermore, Mr Forrest described staffing arrangements at the centre which is located not far from Traralgon, of up to 21 persons, including a social worker, family counsellors, an outreach worker and an indigenous specific worker. He described that the centre is located on a rural property, in a non-residential surrounding about 10 minutes driving time from Traralgon. He described how the facility is new, and was purpose-built.
The standard program offered is for four months, involving three months and a one-month transition period designed to continue the support of people when they begin to re-engage into the community. Mr Forrest described aspects of the program, the degree of supervision of participants on-site and also in circumstances where they may be required to attend external appointments, which involved being accompanied by a staff member. He also described how participants may be permitted day and overnight leave, depending on their successful level of engagement, and progress. He described the arrangements and degree of supervision overnight, of their mobile telephone usage supervision, and what occurs in the event of absconding. Mr Forrest acknowledged the possibility of various bail conditions being ordered by the Court, and that the Informant would be notified in the event of a participant absconding from the centre. In cross-examination, Mr Forrest described control over providing medication by two possible nurse practitioners. He described the modern purpose-built facility, with a significant amount of hi-tech arrangements, involving significant duress alarms, leading to a high level of security. He maintained that should a person abscond from the centre, the absence will be picked up before a couple of hours had passed. Mr Forrest further described that a Memorandum of Understanding is being developed with the local police, and made it clear that the role of the centre includes working with the police pro-actively. Finally, he described that although there was no doctor permanently on-site, the facility has established links with experienced local medical practitioners.
It is submitted on behalf of the applicant that he has real prospects of rehabilitation, noting his youth, limited criminal history, insight into his mental health issues, and immediate access to treatment. The applicant noted a previous concern of the Informant that none of the staff at the facility were trained doctors. In the face of that concern, it is submitted that the court can be satisfied that there is a well-structured plan in place, and the centre staff are well cognisant of the high risk that the applicant possesses. Broadly, it is submitted that in the face of previous attempts by the applicant to engage with his GP regarding his mental health issues, the program that is proposed deals with his comorbidities, being his drug use, offending and his mental health. In those circumstances, it was submitted that the applicant presents as having real prospects of rehabilitation based on his youth, lack of prior criminal convictions, his insight into his mental health, and the immediate availability of therapeutic treatment for his issues.
It is noted that the guiding principles of the Act recognise the importance of maximising community safety. The applicant submits that this should be considered with the lens of both the short and long-term safety, including both the impact on the community if and when a person is released on bail, as well as when a person is released permanently from custody. If the applicant is granted this opportunity to participate in residential rehabilitation, it will maximise his chances of rehabilitation and minimise longer-term risk to the community. On this basis, it is submitted that the principle of community protection is best met by the applicant participating in targeted treatment at GYRRC.
Delay and likely sentence
The applicant has been on remand since 7 November 2021, with his matter next listed for committal mention on 11 February 2022. At the time of that hearing, he will have already spent more than three months on remand. The Latrobe Valley Magistrates’ Court advised on 12 January 2022 that the earliest date for a contested committal hearing would be June or July 2022, a further 6- to 7-month delay. Following a contested committal, it would be expected that a significant delay is likely to occur before a contested trial will take place. In all, it is submitted that there is a real possibility of a two- to three-year delay in the matter reaching trial, due in part to the COVID-19 pandemic.
In support of the aspect of delay, the applicant relies on the County Court’s Regional Victoria Criminal Trial Listings Practice Note, which states that as at 23 August 2021 there were 66 matters in the Latrobe Valley Court where an indictment had been filed after 16 March 2020, and where there was still no trial date allocated. The projected trial estimates for those matters, according to the practice note, were between 10 to 24 months from the date the indictment had been filed, subject to priority considerations. It was submitted that the best-case scenario is that there may be a delay of between 22 to 24 months from the filing of charges before this matter is resolved, and perhaps even a longer delay than that.
In the face of a significant delay before trial, it is submitted both in writing and in oral argument that even if found guilty of the head charge there is still a real likelihood that the applicant could spend more time on remand awaiting trial than any ultimate sentence that might be imposed. This is emphasised given the applicant’s lack of prior convictions, and the applicability of the principles in Mills,[15] Azzopardi[16] and Bugmy,[17] and possibly Verdins.[18]
[15][1998] 4 VR 235 (Phillips CJ, Charles and Batt JJA).
[16](2011) 35 VR 43 (Redlich JA, Coghlan and Macaulay AJJA).
[17](2013) 302 ALR 192 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
[18](2007) 16 VR 269 (Maxwell P, Eames and Neave JJA).
COVID-19 and onerous conditions in custody
The applicant submits that the effects of the pandemic are broader-reaching than delay alone, also playing a role in the conditions in custody and burden of remand, including the additional risk to the applicant’s health while in custody. The applicant has not been able to receive any personal visitors and has been transferred between prisons multiple times since he was first remanded, with each transfer resulting in periods of significant isolation. He has found this experience difficult and frightening, exacerbated by his young age, poor mental health, and the experience of his first time in custody.
At the time of filing this bail application on 21 December 2021, a media release from Corrections Victoria dated 13 December 2021 was referenced, which stated that there were — at that time — two positive COVID-19 cases amongst prisoners and six amongst prison officers. It was submitted that it was only a matter of time before there would be outbreaks within the general prison population.
Unacceptable risk
It is submitted the respondent has not established the applicant is an unacceptable risk. The applicant relies on the factors discussed above and put forward in support of his argument that he has satisfied the compelling reason test.
As well as submitting that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to the applicant’s residence at GYRRC; compliance with all lawful directions from GYRRC staff; non-contact with witnesses; exclusion zone from Moe; compliance with the interim FVIO; not consuming alcohol or drugs; and not leaving Victoria or attending international points of departure.
The respondent’s contentions
The respondent opposes the application for bail on the ground the applicant poses an unacceptable risk of endangering the safety and welfare of any person (in particular, the complainant and her children) and committing an offence whilst on bail. The risk of flight did not appear to be a factor relied on by the respondent.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent submits the following.
Strength of the prosecution case
The charge of reckless conduct endangering life is put on the basis that the applicant poured fuel over the complainant’s car while it was running, causing her to fear for her life and the lives of her children, such that she accelerated away from the scene. If a fire had erupted, the complainant and her children would have been unable to escape — especially given the children were strapped into their car seats without any means of freeing themselves. Further, while not particularised in the charge sheets, the prosecution also relies on the applicant’s conduct of pulling the handbrake while the applicant was driving the vehicle, causing it to skid and the tyres to squeal — as amounting to reckless conduct endangering the lives of the complainant and her children. In argument it was acknowledged that the Director would be likely to consider whether two charges of this type could be preferred, if the overall conduct is capable of being separated into individual pieces of offending.
The respondent has filed two expert statements, one from arson chemist John Kelleher, and the other from Detective Sergeant Robert Hay of Victoria Police’s Collision Reconstruction and Mechanical Investigation Unit. In summary, the opinions expressed in those statements are:
(a) John Kelleher opines that fuel was poured over, but not inside, the complainant’s car and that there was a high likelihood of it igniting irrespective of whether the applicant tried to light it. The reasons it did not ignite, in Mr Kelleher’s opinion, are that the applicant either did not light it, did not use a lighter in the ‘ignitable zone’, or did not have a lighter, and that the movement of the vehicle and/or the wind kept the fuel vapour away from ignition sources. In argument, it appeared conceded that some clothing had been provided to Mr Kelleher, and there were no traces of fuel on the clothing of the occupants of the motor vehicle. Further, there were no traces of fuel on the baby seat.
(b) Based on his analysis of the evidence, Detective Sergeant Robert Hay opines that the complainant’s car was travelling at 38 km per hour when the applicant applied the handbrake, and that the risk of causing serious injury as a result was 45% for occupants on the same side of the collision, 20% for occupants on the opposite side, and 60% for pedestrians.
Special vulnerability
The respondent refers to the material from Dr Alam and Dr Brohnson, relied upon by the applicant, dated 29 April 2021 and 8 November 2021 respectively. It is noted that Dr Alam’s letter pre-dates the alleged offending by approximately six months. In addition, the respondent noted that both documents raise issues with respect to the applicant’s mental health that are relevant to his risk profile — including diagnoses of borderline personality disorder, depression and anxiety — but do not include any information about how those conditions will be managed or treated to moderate the applicant’s risk if bail is granted.
Availability of treatment or bail support services
The respondent raised several concerns with respect to the proposal that the applicant reside and receive treatment at the GYRRC. First, the program is relatively new, being six months old. The Informant is not aware of any persons in the applicant’s situation who have successfully completed the program. Second, there would be nothing to stop the applicant from leaving the facility if he decided to, given there are no security measures preventing the same. It is noted that the facility is approximately a 15-minute drive from the complainant’s house. Third, there is no qualified doctor directly involved in the program to oversee the applicant’s treatment and care. This would need to be outsourced and arrangements for the same could only be made once the applicant was admitted to the program. It is submitted that the applicant presents as a ‘complex case’ (to use the words of Dr Alam) and that GYRRC is not be equipped to appropriately manage his complexities.
Complainant’s views on bail
The complainant was asked to provide her views on the applicant being granted bail and stated, amongst other things, that she was not sure how she felt but she would want the applicant to get help and abide by his bail conditions if bail was granted.
Delay and likely sentence
The respondent acknowledges the delays caused by the COVID-19 pandemic, but does not agree with the applicant’s estimate of two to three years before the matter will reach trial. This is on the basis that the applicant’s matter would be treated with priority because of his youth and current remand status, which are recognised priority categories according to the County Court’s Regional Victoria Criminal Trial Listings Practice Note.
COVID-19 and onerous conditions in custody
It is conceded that the pandemic has affected the conditions and burden of custody. However, this is to be balanced with the asserted unacceptable risk posed by the applicant in this case and the need to protect the community.
Unacceptable risk
It is submitted that the applicant is an unacceptable risk of endangering the safety and welfare of any person, and committing an offence whilst on bail. This is on the basis that he has shown a propensity to undertake extreme measures to perpetrate family violence, and escalates his behaviour in disproportionate and alarming manners. This is evidenced by the alleged offending, which was in response to a verbal argument. Further, the respondent relies on a previous uncharged incident, where the applicant is said to have ‘stopped at nothing’ to get inside a house in which the complainant had locked herself to try and keep safe. It is submitted that the applicant has displayed controlling behaviours towards the complainant, and a tendency to manipulate her into taking him back by apologising and saying all of ‘the right things’. The respondent has expressed concerns that the complainant’s life will be in serious danger if the applicant is released on bail, and submits that no conditions of bail can temper this risk. However, if bail is granted, it is the respondent’s position that any bail conditions should include a prohibition on the applicant contacting the complainant, except on the terms outlined in the interim FVIO.
Analysis and conclusions
Compelling reason
As above, the respondent made the early concession that in its view, the applicant has satisfied the compelling reason test. The effect of such a concession invites the court to accept it and approach the matter accordingly. The conclusion ultimately is entirely a matter for the court, and I have considered the issue with the concession in mind, but in no way bound by it. I have considered the evidence independently of the concession. Given both the circumstances attaching to the applicant, and the evidence put forward in this application as discussed above, in applying the test as set out previously in these reasons, I am satisfied that the applicant has shown that by a combination of circumstances, a compelling reason exists that justifies the grant of bail. That of course is not the end of the issue, as it is necessary to address the issue of whether an unacceptable risk attaches to the applicant. The application proceeded on the basis that argument focused on this particular issue. As is frequently the case, much of the evidence that satisfies the compelling reason test is also relevant to a determination of the unacceptable risk issue. I am also well aware of the need to consider the surrounding circumstances provisions, and the family violence provisions that bear on deciding this application.
Unacceptable risk
Having considered all of the issues placed before the court, I am not satisfied that the respondent has established that the applicant remains an unacceptable risk as defined by the Act. A combination of the factors discussed above persuade me to this position. I am further of the opinion that sufficient conditions can be placed on a grant of bail to ameliorate the risk to one that is acceptable in all the circumstances required to be considered.
In particular, the proposal for residential treatment is of significant importance to the reduction of risk. Having heard the evidence of Mr Forrest and Ms Faulkner, I am satisfied that both of the witnesses, and the program about which they spoke, is credible, well thought out, well-conducted, and the applicant should be adequately supervised for the period of his residency in the program. The two witnesses called on the application appeared to me to be impressive in their evidence, and impressive in their qualifications. It is of particular importance is that the Informant will be immediately notified if the applicant absconds, or otherwise breaches his bail conditions.
Furthermore, it appears to me that on the basis the applicant satisfies the requirements of the program, he will not be left unsupervised for the period leading up to the resolution of these proceedings. As well as providing a degree of professional supervision, I expect that the applicant will remain with the strong family support the court has been informed about.
The aspect of delay in these proceedings is also of significant importance in resolving this application. It appears from the material provided to the court, and also the positions taken by the parties, that it is common ground that if the matter goes to trial, the applicant may wait in the order of 18 to 24 months on remand before the matter is resolved. In the circumstances of the degree and type of offending alleged, albeit that the actions of the applicant in pouring petrol onto a car in which a mother and her children were present, was a particularly dangerous act, I am nevertheless persuaded that in all the circumstances of the applicant, and his offending, there is an appreciable risk that the eventual sentence that may be passed could be less than the remand period served.
As to the strength of the prosecution case, it appears to me that the physical actions of the applicant appear not to be heavily in dispute. As put forward on behalf of the applicant, the circumstances of the applicant’s offending were dangerous and represented very serious conduct, but what rather appears to be in issue is the legal characterisation of the conduct that took place. Given what I understand of the circumstances of the case, in my opinion there is sound reason and an opportunity to carefully examine the matter in order to assess whether there is a prospect of resolution. Without resolution, and without a grant of bail, the applicant faces the prospect of possibly serving 18 months to 24 months in custody before this matter is resolved. In my opinion, it is not certain at all that the applicant will be found guilty of the charge of threatening to kill the occupants of the motor vehicle, and as presently advised, there are likely to be triable issues in respect of some of the charges.
Whilst there is a demonstrated history of previous violence and controlling behaviour perpetrated by the applicant towards his intimate partner, he has no previous convictions, and there is no suggestion that the particular events with which he is charged were planned in any way. Rather they appear to have been spontaneously committed in the heat of the moment. They were nevertheless dangerous actions, and had the situation become more out of control than it was, the consequences may well have been catastrophic, and chilling.
The fact that the applicant has no prior convictions means of course that he does not have a criminal history of the kind frequently attending these types of applications, and in particular no opportunity to have created a history of multiple breaching of previous court orders. Rather, in one sense, it could be demonstrated that at least the applicant abided by a previous court order to attend a driving program, and was successful in achieving a positive outcome.
In coming to my conclusions about this matter I have taken into account the attitude of the complainant. The complainant expressed to the Informant that she had been really scared, that she was in shock, felt detached, and that she was having difficulty in processing what happened. However, she also indicated that if the applicant was to be granted bail she would want him to get help and stick to his conditions. Initially, the complainant applied for and was granted a full no-contact FVIO. In the circumstances, this was entirely reasonable and expected. However, the complainant subsequently discovered that she was expecting the applicant’s child. It is apparent that when this became known, an application was made to the Magistrates’ Court to vary the FVIO to allow contact to occur between her and the applicant in order to discuss circumstances concerning the expected child. In my opinion, that arrangement should remain in place, but it should be made clear that the circumstances of contact between her and the applicant should remain at her choosing, and not something instigated or dictated by the applicant. Accordingly, the FVIO and its terms should remain as they were.
Conclusions
In all the circumstances I am persuaded that the risk that attaches to this applicant can be ameliorated to a satisfactory level by admitting him to bail on strict conditions. These conditions will be as follows:
(a) Lucas Buckingham be admitted to bail on his own undertaking and on the following special conditions:
(i) He attend court hearings in the Magistrates’ Court as required.
(ii) He not contact, directly or indirectly, any witness for the prosecution, other than police members.
(iii) The applicant is not to initiate contact with the complainant by any means whatsoever, and that any contact or communication to take place with the complainant must only be in relation to issues concerning her pregnancy, and then only when initially contacted by the complainant in order to do so.
(iv) He be released into the custody of a staff member or their nominee at the Gippsland Youth Residential Rehabilitation Centre (‘GYRRC’) at 10 Northern Ave, Traralgon VIC 3844.
(v) He reside at GYRRC until the conclusion of the three-month residential program, or until further order of a court.
(vi) The applicant must not leave the premises of GYRRC except in the company of a staff member of GYRRC, or with permission of the Program Manager, or his delegate.
(vii) The applicant must engage in treatment and comply with all lawful directions of the staff at the GYRRC.
(viii) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(ix) He submit to weekly drug and/or alcohol testing for the first month of his bail, and thereafter as requested by the Court.
(x) He present to Victoria Police upon request.
(xi) The Informant, or his delegate, may attend at GYRRC from time to time to confirm the applicant’s presence at GYRRC.
(xii) He not leave the State of Victoria.
(xiii) He surrender any passport he may have to the Informant within 24 hours, and not apply for a passport.
(xiv) He not attend any points of international departure.
(xv) He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 9 February 2022, and any further dates this Court appoints during the course of this order.
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