Re Carr
[2023] VSC 564
•19 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0321
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by REBECCA CARR |
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 September 2023 |
DATE OF JUDGMENT: | 19 September 2023 |
CASE MAY BE CITED AS: | Re Carr |
MEDIUM NEUTRAL CITATION: | [2023] VSC 564 |
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CRIMINAL LAW – Bail – Multiple charges including handle stolen goods, theft, driving while disqualified and committing indictable offence while on bail – Whether exceptional circumstances established – Whether unacceptable risk of re-offending and endangering public safety – Aboriginal heritage – Need for applicant to attend to Sorry Business – Difficult health issues in custody – Separation from young children - Bail granted with conditions – Bail Act 1977 ss 3AAA, 3A, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A J McPhail | Law & Advocacy Centre for Women |
| For the Respondent (summary charges) | Mr P Pathmaraj | Victoria Police |
| For the Respondent (indictable charges) | Mr S Profitt | Office of Public Prosecutions |
HIS HONOUR:
Between August 2019 and August 2023, the applicant was served with ten separate sets of charges. Since 7 August 2023, she has been remanded in custody on those charges. Two applications on her behalf for bail have been refused by the Magistrates’ Court. The applicant now applies to this Court for bail.
The alleged offending
The first set of charges was filed in the Sunshine Magistrates’ Court on 28 August 2019 by Constable Jordyn Briggs (‘the Briggs charges’). They included five charges of theft, three charges of handle stolen goods, five charges of driving while disqualified, and four charges of fraudulently using a registration plate. The charges concerned seven separate sets of offending that were alleged to have occurred between 12 March 2019 and 28 August 2019.
On the same date, 28 August 2019, Senior Constable Glen Hutton charged the applicant with 19 separate offences (‘the Hutton charges’). They included one charge of reckless conduct endangering serious injury, one charge of driving in a manner dangerous, two charges of entering an intersection against a red traffic light, two charges of driving a vehicle causing loss of traction, one charge of driving on the wrong side of the road. The offences were alleged to have been committed on 17 August 2019.
Following her arrest on 29 August 2019, the applicant was remanded in custody on the Briggs and Hutton charges. She was subsequently released on bail by the Sunshine Magistrates’ Court on 27 March 2020.
The third set of charges were laid by Constable Rory Hynan on 9 October 2020 (‘the Hynan charges’). They comprised one charge of driving while disqualified, one charge of contravening a condition of bail (not to drive a motor vehicle), and one charge of failing to give her name and address. The offending is alleged to have occurred on 12 May 2020. The applicant was released on bail on those charges.
The fourth set of charges were laid by Detective Senior Constable Heath Davidson on 15 October 2020 (‘the Davidson charges’). They included one charge of trafficking a drug of dependence, one charge of possessing a drug of dependence, two charges of handle stolen goods, two charges of committing an indictable offence while on bail, and two charges of contravening a condition of bail (the curfew condition and the residential condition). The offending was alleged to have taken place on 5 May 2020 and 12 July 2020.
The fifth set of charges were brought by Senior Constable Sheridan Corless dated 25 May 2023 (‘the Corless charges’). They comprised five charges, which included theft, handle stolen goods, driving while disqualified and committing an indictable offence while on bail. Each of the offences were alleged to have been committed on 20 May 2023.
The sixth set of charges were brought by First Constable Matthew Taliana on 16 July 2023 (‘the Taliana charges’). They consisted of one charge of theft, one charge of driving while unlicensed, one charge of fraudulently using identifying number, and one charge of committing an indictable offence while on bail. The offences were alleged to have taken place on 21 May 2023.
The seventh set of charges were laid by Senior Constable Jack Balson on 6 June 2023 (‘the Balson charges’). They included five charges of possess a drug of dependence, two charges of theft, one charge of handle stolen goods, and one charge of driving while disqualified. Each of those offences are alleged to have been committed on 6 June 2023.
The eighth set of charges were brought by Senior Constable Olivia Hoad on 13 July 2023 (‘the Hoad charges’). They comprised one charge of theft from a shop, and one charge of committing an indictable offence while on bail. The offending was alleged to have occurred on 22 June 2023.
The ninth set of charges were laid by Senior Constable Dion Wintle on 7 August 2023 (‘the Wintle charges’). They included four charges of handle stolen goods, two charges of theft, one charge of driving while disqualified, two charges of committing an indictable offence while on bail, and two charges of contravening a condition of bail (not to drive a motor vehicle and a reporting condition). All but two of those offences were alleged to have been committed on 7 August 2023.
At the time of her arrest on the Wintle charges on 7 August 2023, the applicant was then on seven different sets of bail, namely, in respect of the Briggs, Hutton, Davidson, Curran, Hynan, Corless and Balson charges. An application for bail was made on her behalf on 8 and 9 August 2023 at the Sunshine Magistrates’ Court. The magistrate found that exceptional circumstances existed, but concluded that there was an unacceptable risk of the applicant committing further offences, endangering the community and failing to appear.
A further application for bail was made on behalf of the applicant on 7 September 2023 at the Sunshine Magistrates’ Court. The applicant relied on several factors including that her brother was terminally ill and, indeed, close to death. The magistrate again found that exceptional circumstances existed, but concluded that there was an unacceptable risk that the applicant would reoffend if released on bail.
The tenth set of charges were laid by Detective Leading Senior Constable Robert Curran on 21 December 2022 (‘the Curran charges’). They included two charges of aggravated carjacking, one charge of recklessly causing injury, two charges of obtaining property by deception, one charge of handle stolen goods, one charge of possessing cartridge ammunition, two charges of possession of a drug of dependence, and two charges of failing to appear pursuant to s 30(1) of the Bail Act. The two charges under the Bail Act concerned a failure to appear before the court on 31 March 2022. The offending alleged in the other charges occurred on 17 December 2022 and 21 December 2022. After her arrest, the applicant was granted bail on each of those charges by the Melbourne Magistrates’ Court on 22 December 2022. On 13 September, an application for revocation of the applicant’s bail was upheld by the County Court.
The circumstances of the alleged offending
The materials, filed by the respondents, set out in some detail the circumstances of the offending that is the subject of the ten sets of charges. For the purposes of the present application, it is not necessary to summarise those circumstances, apart from the offending that is the subject of the Hutton charges and the Curran charges, in respect of which the alleged conduct of the applicant was, on its face, quite serious.
As noted, the Hutton charges arose from the driving by the applicant of a Holden sedan in the Melton South area on 17 August 2019. It is alleged that, on that date, the applicant was observed to be driving the vehicle at a fast rate of speed in a northerly direction on Station Road. As the vehicle approached the roundabout intersecting Station Road and Barnes Road, it overtook several vehicles on the left-hand side before driving over the nature strip. It then turned left into Barnes Road and headed in a western direction. At that point, the vehicle was recorded as travelling at 103 kph in a 60 kph zone. Police, who were following the vehicle, activated emergency lights and sirens in an attempt to intercept the vehicle. However, the vehicle failed to stop, and proceeded through a red traffic light signal at the intersection of Barnes Road and Coburns Road, then turning left into Coburns Road and heading in a south direction.
It was at that point that, due to the erratic nature of the driving, the police deactivated their emergency lights and sirens and contacted the police air wing. They continued to follow the vehicle, which was then observed to turn right onto the Western Freeway. The vehicle subsequently slowed dramatically, performed a U-turn through the centre median strip against a no U-turn sign, and accelerated hard, heading in an easterly direction. At that point, the driver lost control of the vehicle, causing it to spin 180 degrees across both lines of traffic and to collide with the wire rope barrier on the driver’s side of the vehicle. The vehicle again accelerated hard and as a result of which the vehicle lost traction, and spun a further 180 degrees, causing other vehicles travelling in the same direction to take evasive action in order to avoid a collision. The vehicle then exited the freeway at Coburns Road, and travelled through a red light signal before colliding with a motor vehicle travelling in a southern direction on Coburns Road. The applicant’s vehicle continued to drive, travelling in a northern direction on the incorrect side of the road, through a red traffic light, before crossing back onto the correct side of the road. In the meantime, the police stopped at the intersection of the freeway to speak with the occupants of the vehicle with which the applicant’s vehicle collided. The applicant was subsequently arrested on 29 August 2019 and charged with the offences summarised in para [3] above. The applicant intends to plead not guilty to the charges. The critical issue concerns the identity of the driver of the Holden sedan.
As noted, the conduct that is alleged to be the subject of the Curran charges is, on its face, quite serious. On Friday 16 December 2022, at approximately 11.30pm, the victim, John Morcos, met the applicant on a social media application. They commenced to message each other. Twenty-five minutes later, the applicant and her partner, Blake Charles, exchanged a large number of messages between them. At approximately 1.10am on 17 December, the applicant, pursuant to an arrangement with Morcos, met him in Jewell Street, Yarraville. The applicant entered the front passenger seat of Morcos’s vehicle. While Morcos was driving the applicant, Charles remained at home and continued to be in contact with her through text messages. In the meantime, Morcos and the applicant purchased some drugs, and drove to a petrol station where they purchased some food. The applicant then directed Morcos to drive back to Hawkhurst Street, Yarraville where, according to Morcos, she said that they would park there and have ‘some fun’. Charles remained in contact with the applicant on the telephone, and they maintained an open line for more than 39 minutes at that point. It is alleged that at about 2.00am, after they arrived in Hawkhurst Street, the applicant directed Morcos to park in a secluded spot. Five minutes later, while the applicant and Morcos were sitting in the vehicle, Charles approached them with an imitation firearm and a machete, and started banging on the driver’s side window. The applicant unlocked the central locking device, thus providing Charles with entry into the vehicle. Charles opened the door and dragged Morcos out of the vehicle, kicking and punching him to the head and body. He then entered the driver’s seat of the vehicle and drove off with the applicant. They dumped the vehicle in Sunshine, and stole two telephones and a wallet from it. Subsequently, they used the credit card to purchase food, drinks and cigarettes from a 7-Eleven shop.
The applicant was arrested and interviewed at the Footscray Police Station on 21 December 2022. In effect, she stated that after they parked the vehicle, Morcos became ‘creepy’ and made sexual advances to her, in response to which she sent an iPhone alert to Charles, requesting his help. The applicant intends to plead not guilty to the charges. The issues in the trial relate to the questions of the applicant’s complicity in the offending, and also self-defence.
Other outstanding charges
In addition, there is one other set of charges on which the applicant is currently on summons. Those charges were brought by Senior Constable Darcy Barden dated 18 August 2023. They consist of one charge of handle stolen goods, one charge of obtaining property by deception, and one charge of committing an indictable offence while on bail. Each of those offences are alleged to have been committed on 7 May 2023.
The status of the charges
The Hynan, Hoad, Davidson, Corless and Wintle charges have been resolved, with the applicant pleading guilty to some of those charges. The Briggs and Hutton charges are each listed for a contest mention on 4 October 2023 at the Sunshine Magistrates’ Court. The Curran charges were the subject of a contested committal proceeding at Melbourne Magistrates’ Court on 21 and 22 June 2023. The matter is listed for an administrative directions hearing in the County Court on 3 October 2023.
The Barden charges are the subject of ongoing discussions with the prosecution. The matter is listed for further mention at the Sunshine Magistrates’ Court on 4 October 2023. Five of the Balson charges remain in issue. The matter is listed for a contest mention at the Melbourne Magistrates’ Court on 17 October 2023.
Time spent in custody
The applicant has had three periods of custody in relation to the above charges. As noted, she was remanded in custody on the matters of Briggs and Hutton between 29 August 2019 and 27 March 2020, a period of 213 days. Subsequently, on 31 March 2022, warrants for her arrest were issued by the Sunshine Magistrates’ Court. The warrants were executed on 21 December 2022 when the applicant was served with the Curran charges. On 22 December, she was granted bail by the Melbourne Magistrates’ Court. On 6 June 2023, she was arrested on the Balson and Corless charges. On the following day, her application for bail was granted by the Melbourne Magistrates’ Court. Two months later, on 7 August, she was arrested on on the matters of Wintle, Hoad and Taliana. She was then on seven sets of bail. As noted, she has made two unsuccessful applications for bail to the Sunshine Magistrates’ Court. As I have noted, on 13 September the applicant’s bail on the Curran charges was revoked by the County Court.
Previous convictions
The applicant has a quite substantial criminal history with a number of previous convictions for theft, criminal damage, possession of a drug of dependence, committing an indictable offence while on bail, and driving while disqualified.
Her criminal record commenced with being sentenced by the Melbourne Magistrates’ Court on 8 September 2016 to a community correction order for 12 months on charges of theft, theft of a motor vehicle, fail to answer bail, committing an indictable offence on bail, and possession of a drug of dependence. In May 2017, she was before the court on a charge of contravening the community correction order. The order was cancelled and she was sentenced to an aggregate sentence of three months’ imprisonment. Subsequently, she was further before the court on 15 May 2017 on a substantial number of charges of theft, possession of a drug of dependence and other offences, and she was sentenced to a total effective sentence of twelve months’ imprisonment. On 30 May 2019, she was sentenced by the Sunshine Magistrates’ Court on charges, that included theft, criminal damage and driving while disqualified, to an aggregate sentence of 37 days’ imprisonment, which was equivalent to the period of time already served, and a community correction order was imposed for a period of eighteen months.
Bail provisions
The charges against the applicant include offences specified in schedule 2 of the Bail Act 1977, namely, committing an indictable offence while on bail. At the time of those offences, the applicant was already on bail in respect of Schedule 2 offences, which included offences against the Bail Act and trafficking in a drug of dependence. Accordingly, s 4AA(2)(c) and s 4A(1A) of the Bail Act provide that the application for bail must be refused, unless the applicant establishes the existence of exceptional circumstances that would justify the grant of bail to her. Further, the Curran charges included two counts of aggravated carjacking pursuant to s 79A of the Crimes Act 1958, which are offences specified in sch 1 of the Bail Act. Accordingly, pursuant to s 4AA(1) and s 4A(1A), the application for bail on those charges must be refused, unless the applicant establishes the requisite exceptional circumstances.
In determining whether exceptional circumstances have been established, I am required to take into account the relevant circumstances, including, but not limited to, those specified by s 3AAA(1) of the Act. Those matters include (inter alia): the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant’s criminal history; the extent to which the applicant has complied with the conditions of any previous grant of bail; whether at the time of the offending the applicant was on bail for another offence; the applicant’s personal circumstances, associations, home environment and background; the availability of treatment or bail support services; the length of time that the applicant is likely to spend in custody if bail is refused; and any special vulnerability of the applicant.
The meaning of the expression ‘exceptional circumstances’ has been the subject of discussion in a number of previous decisions of this Court. In order to meet the requirement, the applicant must demonstrate the existence of circumstances which are such as to take the case out of the ordinary. That is, the applicant’s circumstances must be exceptional to ordinary circumstances, which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be constituted by a combination of factors, which, individually, might not be sufficient to be considered exceptional.[1]
[1]DPP v Muhaidat [2004] VSC 17 [13] (Kaye J); Re Brown [2019] VSC 751 [65]–[66] (Lasry J); Re Tong [2020] VSC 141 [18] (Tinney J); Re Pope [2022] VSC 735 [6] (Priest JA).
If the applicant establishes the requisite exceptional circumstances, s 4D and s 4E of the Act provide that the application for bail must nevertheless be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released, would (inter alia) endanger the safety or welfare of any person, commit an offence while on bail, or fail to surrender into custody in accordance with the conditions of the bail. Section 4E(2) provides that the prosecution bears the onus of satisfying the court as to the existence of such a risk, and that such a risk is unacceptable. Section 4D(3) provides that in considering whether any such risk is unacceptable, the court must take into account the ‘surrounding circumstances’ which are specified in s 3AAA of the Act.
The applicant is an Aboriginal woman with Tagalaka heritage on her mother’s side. Section 3A and s 3AAA(1)(h) of the Act provide that in making a determination under the Act, the court must take into account any issues that arise due to a person’s Aboriginality, including the person’s background, the person’s ties to extended family or place, and any other relevant cultural issue or obligation affecting the person.
In HA (a pseudonym) v The Queen,[2] the Court of Appeal described the effect of those provisions in the following terms:
The fourth relevant factor was the appellant’s Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[3]
[2][2021] VSCA 64.
[3]Ibid [58]–[59] (Maxwell P, Kaye JA) (citation omitted); see also Re Hooper [2021] VSC 476 [52]–[53] (Tinney J).
The applicant’s personal circumstances
The applicant is 27 years of age. She has three siblings. Her biological father has been largely absent from her life, and she was raised in Townsville by her mother and stepfather. The family relocated to Melbourne in 2007 when the applicant was 11 years of age. Shortly after they came to Melbourne, the relationship between the applicant’s mother and stepfather deteriorated, and the applicant’s adolescence was characterised by a fractured family life and domestic instability. In the years that followed, she moved between Melbourne and Queensland in circumstances in which her mother became involved in further relationships which were marred by domestic violence.
The applicant completed her education at Year 12 level in Queensland before she again relocated to Melbourne. In the absence of support from her mother, she became homeless, and it was in those circumstances that she commenced using illicit substances as a form of self-medication.
The applicant is the mother of two daughters and one son, aged five years, two years and one year respectively. The father of the younger two children is Blake Charles, with whom the applicant has been in a relationship for the last three or so years. As I have noted, Charles is the co-accused in the Curran charges.
The applicant gave birth to the eldest child while she was in custody. The child was removed from her care for the first four weeks of her life. She was then returned to the applicant’s care while she was in custody and the pair were placed in a mother and baby unit. The applicant was released on parole shortly after and was provided with housing. However, at the conclusion of her period of parole, the housing support was withdrawn, rendering her homeless. As a result, she relinquished care of her daughter. The second child was also removed from the applicant’s care at birth for a period of a week, but she was then returned to the applicant’s care after the applicant had completed the Tweddle program.
Subsequently, as a result of the Curran charges, the children were again placed in child protection. They are currently living in the care of the youngest child’s paternal grandmother. The removal of the applicant’s children from her care weighs heavily on her and her absence has had an effect on her children.
A family reunification order was made in the Children’s Court on 24 August 2023 which will last until 22 December. It appears that the Department will consider returning the children to the applicant’s care if she continues to engage in contact with them three times a week while in custody and on her release. If she is released and completes 80 per cent of her screens, and they are clear of illicit substances, and if she continues to attend 80 per cent of her contact times with the children, she may then progress to monitored supervision with them after four weeks. If she is released from custody, she will also have the opportunity to move to some unsupervised time with the children before the family reunification order expires. If she is able to achieve that, then there is some prospect that she may ultimately be reunited with the children.
On the hearing of the application, I was advised by counsel that the reunification order cannot be extended if the children remain out of the applicant’s care for a total of 24 months. Apparently that period includes any periods of time during which the children have already been out of her care.
The applicant has suffered the tragic deaths of two close family members in recent years. In 2018, her sister died after being struck by a motor vehicle. The applicant was then in custody and she was not able to participate in Sorry Business. More recently, her 18 year old brother, Lachlan, was diagnosed with liver cancer. In early September, he was receiving palliative care, and he passed away on 8 September after an unexpectedly rapid deterioration in his condition. It is the strong desire of the applicant to be with her mother and family and participate in Sorry Business in memory of her late brother.
The applicant is a type-1 diabetic. Her blood sugar levels have been unstable since her remand in custody. Before her most recent remand, the applicant found out that she was pregnant. During her time in Dame Phyllis Frost Centre, she was taken to Sunshine Hospital due to severe abdominal pain. She then expressed a wish to terminate the pregnancy. In the meantime she suffered a miscarriage. As a result, on 4 September, she was transported to the Royal Women’s Hospital where she underwent a dilation and curettage procedure. She experienced some complications during the procedure and during post-operative recovery. At one point she became hypoglycaemic as a result of being required to fast before the procedure. She has been placed on medication and will require follow-up appointments at the Royal Women’s Hospital.
After the applicant was discharged from the Royal Women’s Hospital, she returned to the Dame Phyllis Frost Centre. However apparently she was only provided with a script for medication for one day. On 14 September, she was readmitted to the Royal Women’s Hospital having suffered heavy bleeding and infection. She remained in the hospital for one day and then was discharged to the prison with a script for further medication. Subsequently, she had a further attendance at hospital on 17 September, having suffered an allergenic response to food which, unbeknown to her, had a citrus component. Further, after the conclusion of the hearing of this application, the applicant was again admitted to hospital suffering hypoglaecemia, and she is attending the delivery of this decision by remote access.
The applicant has been diagnosed with depression, anxiety and post-traumatic stress disorder, that disorder apparently resulting from the circumstances in which her sister died. She is currently on medication to support her mental health.
In support of the application for bail, the applicant relied on a plan that has been developed that seeks to address the applicant’s multiple complex issues. If granted bail, she would receive case management support through Ms Georgie Adeney, a social worker at the Law and Advocacy Centre for Women. In addition, the applicant has stable accommodation available to her with her mother at premises in Ascot Vale Road, Ascot Vale. It is proposed that the applicant should be released on bail on her own undertaking subject to conditions that she reside at her mother’s premises, that she be subject to a curfew, that she report to Footscray Police Station three times per week, that she attend all appointments arranged by the Centre, and that she not drive a motor vehicle.
Two witnesses gave evidence in support of the applicant. The applicant’s mother, Rachal Coogan, gave evidence primarily as to the accommodation which would be provided to the applicant if she were to be released on bail. Ms Coogan resides in a one-bedroom unit in Ascot Vale. In her evidence, she said that if the applicant were released on bail, she would provide accommodation to her in that unit. Ms Coogan stated that she had noted that the applicant had undergone a number of changes since she has been in custody. In particular, her mental health has improved and she has a more positive outlook on life. Ms Coogan also confirmed that it was important to the applicant and the family that the applicant be able to participate in the mourning, and Sorry Business, that follows the tragic loss of the death of her son.
Ms Coogan is in a relationship with one Mac Walker. Mr Walker has a number of previous convictions and he is currently on two counts of bail. In response to the concerns of the respondents that, if the applicant were to reside at the same premises, Mr Walker would be also residing there, Ms Coogan stated that Mr Walker has moved to other accommodation, and he has changed the address to which he has been bailed.
In cross-examination, Ms Coogan confirmed that before the applicant was arrested on 7 August, the applicant had been residing with her. Ms Coogan stated that she was not aware that during that time the applicant was engaging in further offending. She said that if the applicant were released on bail, she would keep a closer watch on the applicant. She would ensure that she locked the door at night, and kept the key with her. She also said that she would assist by accompanying the applicant to any appointments that she would need to attend. When asked about the applicant’s repeated failure to report to police from January 2023, which was a condition of her bail, Ms Coogan said that the applicant during that time had suffered a significant decline in her mental health, and she had received a certificate which she understood meant that she no longer needed to report to police.
Ms Georgie Adeney, a social worker employed by the Law and Advocacy Centre for Women, prepared a report and gave evidence on the hearing of the application. Ms Adeney has been the applicant’s social worker since 12 August, and she has been providing support to the applicant in that capacity. Ms Adeney stated that her role had been to provide therapeutic support to the applicant, in particular, connecting her with agencies who can attend to her particular needs. She confirmed that on 17 August the applicant was referred to the Salvation Army STAR Intake, which is a program designed to address the applicant’s substance abuse issues. When the applicant is released on bail, Ms Adeney will assist the applicant with a referral to the Uniting Care ReGen-Odyssey House Consortium. There is a lengthy wait list for a public residential rehabilitation bed through that program. Nevertheless, the residential rehabilitation centres do give some priority to Aboriginal and Torres Strait Islander persons, which might enable the applicant to access inpatient treatment more readily. Further, if the applicant is granted bail, Ms Adeney would be able to refer the applicant for alcohol and other drug (‘AOD’) counselling.
In respect of the applicant’s mental health, Ms Adeney stated that the applicant could be referred to Victorian Aboriginal Health Service (‘VAHS’) and that she would be able to assist the applicant to arrange an appointment with AOD. However, she confirmed that she could not organise that appointment on behalf of the applicant, and that the applicant herself would need to make the relevant contact. Ms Adeney further stated that if the applicant were to disengage from the Centre, she would be able to contact the applicant’s mother, but, as a matter of policy, she would not notify the police.
In cross-examination, Ms Adeney stated that she did not have the capacity to attend the residence at which the applicant would be living. However, if the applicant disengaged from the Centre, the appointed Australian Community Support Organisation (‘ACSO’) ReStart worker would be able to attend her home. Ms Adeney confirmed that she did not have the power to require the applicant to undertake any of the programs available to her, and that she could do no more than encourage her to do so.
Response by respondents
The respondents have provided quite detailed material in response to the application for bail.
In respect of the proposal that the applicant reside with her mother, the informant, Senior Detective Curran, has made enquiries with Ms Adyan Tesfay, of Child Protection — Level 3, who is assigned to the applicant’s case. Ms Tesfay has described the respondent’s mother’s premises as a share house in which the mother resides in a small room. When the applicant was originally released on bail on the Curran charges on 22 December 2022, one of the conditions of that bail was that she reside at those premises. The respondents note that the applicant’s mother was not able to prevent her becoming involved in the offending that is the subject of the Corless, Taliana, Balson, Hoad and Wintle charges. In addition, it appears that the bail conditions of Mr Walker, who was residing at those premises, have not been altered. On the weekend before this application was heard, the informant in respect of the charges against Walker received an email from him stating that Mr Walker intended to change his address. However, officially, Mr Walker’s residential address is still the same as that of Ms Coogan.
The respondents also take issue with the proposition that if the applicant were released on bail she might be able to reunite with her children. The Department of Families, Fairness and Housing (DFFH) has advised investigators that at the time of the Curran offending, the applicant had not been compliant with their requirements, and that she had not completed any drug screening and had falsely denied that she had been using drugs. The DFFH had continuing concerns relating to the applicant’s criminal offending, drug use and possession of weapons. It is noted that at the time of the Curran offending, the applicant was out in the early hours of the morning purchasing drugs in circumstances in which she should, instead, have been looking after her children. Ms Tesfay of Child Protection has advised that since she had become the applicant’s case manager in February 2023, the applicant had been difficult to engage with, and had made little progress.
Further, the respondents have submitted that if the applicant were released on bail, there was little confidence that she will properly comply with the conditions that had been proffered on her behalf. In that respect, it was noted that between 22 December 2022 and 7 August 2023 the applicant was required to report to the Flemington Police Station between 6.00am and 9.00pm, and that enquiries revealed that the applicant had failed to report to the Flemington Police Station since January 2023. In respect of the proposed condition that the applicant not drive a motor vehicle, it is noted that five of the seven bail matters include charges that the applicant drove a motor vehicle while disqualified. On 7 August 2023, the applicant had attempted to flee police driving a stolen motor vehicle, while being disqualified from driving a vehicle. Further, the applicant has previous convictions for driving whilst disqualified.
The issues
As I have mentioned, the application for bail must be refused, unless the applicant establishes the requisite exceptional circumstances. Counsel for each of the respondents has, properly, accepted, and I am satisfied, that the applicant has established the existence of such circumstances. In summary, they comprise a combination of three particular circumstances that affect the applicant’s situation.
First, the applicant has, in recent times, suffered significant health issues while she has been in custody. There has been some difficulty in ensuring that she has the appropriate treatment and medication for those conditions. The existence of those conditions, and a number of other underlying health issues, make her time in custody significantly more difficult than otherwise.
Secondly, the applicant’s family has suffered particular tragedy in recent times. The loss of the applicant’s brother has affected the family, and the applicant, quite profoundly. The applicant, being of Aboriginal heritage, needs to undertake the necessary Sorry Business, and to support her family in their time of loss. If she were unable to do so, it would be a matter of particular grief for her while in custody.
Thirdly, if the applicant remains on remand, she would thereby lose all possibility of a constructive reunification with her three young children. As I have noted, the circumstances of the current reunification order are such that it would be most unlikely to be extended if the applicant were to remain in custody.
Taken together, I am satisfied that the combination of those three particular circumstances affecting the applicant constitute the requisite exceptional circumstances that would otherwise justify the grant of bail to the applicant.
The question then is whether the applicant, if granted bail, would be an unacceptable risk in respect of any of the matters specified by s 4E(1) of the Bail Act. Section 4E(2) provides that the respondents bear the burden of establishing the existence of the risk relied on, and of demonstrating that such a risk is unacceptable.
In the present case, the respondents have submitted that if the applicant were released on bail there would be unacceptable risk in each of the following regards:
(1)There would be an unacceptable risk the applicant would endanger the safety and welfare of others. In particular, it is noted that the applicant in the past has been sentenced for engaging in high-risk driving to avoid apprehension. Further, the offences that are the subject of the Curran charges involve a significant degree of violence inflicted by the applicant’s co-accused on the victim.
(2)There would be an unacceptable risk of the applicant committing a further offence while on bail. In that regard, it is pointed out that the applicant has twelve previous convictions for committing indictable offences while on bail. Further, she was already on bail at the time of the offending that is the subject of the Balson, Corless, Davidson, Barden, Hoad and Taliana charges.
(3)Thirdly, it is submitted that there would be an unacceptable risk that the applicant would fail to surrender into custody in accordance with the conditions of her bail. In that respect, it was noted that the applicant has five previous convictions for failing to answer bail, and that she has been the subject of 23 warrants of apprehension.
In addition, counsel for the respondent noted that the applicant has failed to comply with other terms of bail on which she has previously been released, including curfew conditions. In that respect, it is noted that the offending, that is the subject of the Hoad charges, was committed in the early hours of the morning, while the applicant’s bail had been extended overnight during the hearing of the committal proceeding relating to the Curran charges.
Counsel submitted that the conditions, that have been proffered on behalf of the applicant, as terms of her bail, would not be adequate in order to allay the risk of her reoffending and of endangering other members of the public. At the time at which the applicant committed the offences, that are the subject of the charges that have been laid in 2023, the applicant was already on bail, a condition of which was that she reside with her mother in the Ascot Vale premises. During that time, Ms Coogan was unable to ensure that the applicant did not reoffend, and further she was not able to ensure that the applicant comply with the curfew condition attached to her bail.
Counsel further submitted that any condition that the applicant attend all appointments arranged for by the Law and Advocacy Centre for Women would have limited effect in view of the evidence of Ms Adeney, that the applicant’s engagement with the centre would be entirely voluntary and that the centre would not notify the police if the applicant were to breach that aspect of her bail conditions. It was submitted that the applicant’s background and criminal history demonstrate that she has an ongoing disregard for the rules that relate to road safety, and that she has a long history of crimes of dishonesty. In those circumstances, it was submitted there is an unacceptable risk that she would reoffend and endanger members of the public if she is released on bail.
In response, counsel for the applicant submitted that there are a combination of factors, which have the effect that such risks, pertaining to the applicant, would not be unacceptable. First, counsel noted that the applicant now has a very strong incentive to comply with the terms of her bail. In particular, if she were to breach bail, and be remanded in custody, she would thereby forfeit her last opportunity to be reunified with her children. Secondly, counsel noted that the applicant’s mother, Ms Coogan, has indicated that she would be more vigilant in ensuring that the applicant complied with the terms of her bail, and in particular that she observe the curfew conditions. In addition, Ms Coogan has stated that she will accompany the applicant to all relevant appointments in order to ensure that she undergo her rehabilitative treatment that will be available to her. Thirdly, it was submitted that the applicant’s connection with the Law and Advocacy Centre for Women would provide invaluable support to her to assist her to address the issues which have played a significant role in her previous offending.
Analysis and conclusion
Based on her past, and more recent, history, it is indisputable that if the applicant were released on bail, there would be a material risk that she might commit further offences, and that she might fail to comply with conditions of bail that are designed to offset that risk.
As I have already noted, at the time of her arrest on 7 August on the Wintle charges, the applicant was already subject to seven separate sets of bail. She has twelve previous convictions for committing an indictable offence while on bail. A number of the charges, which are currently outstanding against the applicant, concern a spate of offending alleged to have been engaged in by the applicant between May and August of this year. In particular, the applicant is the subject of six separate sets of charges for offences allegedly committed by her between 7 May and 7 August.
In addition, the applicant has a number of relevant previous convictions, including convictions for driving a motor vehicle while disqualified, and, as I have noted, for committing an indictable offence while on bail. For the reasons that I have already outlined, the Hutton charges and Curran charges are, on their face, quite serious. Both charges are contested and, it would seem, will proceed to trial. It is difficult at this point to make any useful estimate of the strength or otherwise of the prosecution cases in respect of those charges, but it does seem, from the brief summaries of the offences, that the charges against the accused are not without some substance.
In addition, the applicant has in the past failed to comply with important terms on which she has previously been released on bail, and in particular the curfew conditions of the bail, and the conditions requiring her to report to police. Those conditions are directed to particular risks, namely, that of offending and of absconding, and they also reinforce to an accused person the need to comply with the conditions of bail.
Based on those matters, as I have stated, there would be a material risk that, if the applicant were released on bail, she might commit a further offence. In addition, there would also be a risk that she might endanger the safety of others, and/or fail to surrender into custody in accordance with the conditions of the bail. However I would not be satisfied that those two risks were, in the circumstances, unacceptable. The critical question is whether the risk of the applicant reoffending, if she were released on bail, is an unacceptable risk in the circumstances of this case.
That question is, quite plainly, difficult to resolve, particularly in view of the recent spate of offending engaged in by the applicant. There are, however, two important considerations which, in my view, do weigh quite significantly in favour of a conclusion that the risk of the applicant reoffending, or of otherwise breaching the terms of the bail, would not in the circumstances be such as to be unacceptable.
The first, and important consideration, is that if the applicant were released on bail, there would be some safeguards and incentives which would operate to reduce the risk of her reoffending.
First, the applicant is well aware that if she were to breach the terms of the bail, she would most probably destroy any remaining prospect she has of being ultimately reunited with her children. That consideration has not, so far, deterred her from engaging in offending. Nevertheless, it does remain as a relevant consideration, particularly in view of the terms on which the Children’s Court made the reunification order on 24 August of this year.
Further, if the applicant were released on bail, she would have access to, and would be assisted by, the services provided by the Law and Advocacy Centre for Women. In that respect, I was told that the applicant has been assigned a nominated ACSO worker who will be able to perform an active role in assisting the applicant to attend appointments and to undertake the rehabilitative treatment, that is necessary to address her addiction to drugs and her psychological conditions of anxiety, depression and post-traumatic stress disorder. While the Centre does not have the power to compel the applicant to undergo such treatment, nevertheless Ms Adeney has noted that the applicant has now recognised, and understands, the need to access support for those conditions.
The proposed condition that the applicant reside with her mother, Ms Coogan, is by no means ideal. The applicant was residing with Ms Coogan at the time that she became involved in the offending that with the subject of a series of charges brought against her between May and August this year. In her evidence, Ms Coogan acknowledged that she had not been able to prevent the applicant breaching conditions of her bail, including curfew conditions. Further, it would seem that Ms Coogan’s partner, Mr Walker, has not yet fully disconnected himself from Ms Coogan’s premises. Nevertheless, and despite those limitations, the point does remain that if the applicant were released on bail, she would at least have the benefit of a home to live in, and of support by her mother, who, it is quite apparent, genuinely does care about her.
The matters to which I have just referred to, to some extent, offset the risk that, if the applicant were granted bail, she would commit further offences or would otherwise breach the conditions of the bail. However, it must be acknowledged that those considerations do not, by any means, eliminate that risk. The question remains whether, in the circumstances, such a risk is unacceptable.
As I have noted, s 4E(3)(a) provides that in considering whether a risk is unacceptable, the court must take into account the ‘surrounding circumstances’ which are defined in s 3AAA(1) of the Act. Section 3AAA(1)(g) provides that the ‘surrounding circumstances’ include the accused person’s personal circumstances, associations, home environment and background. Section 3AAA(1)(h) provides that such circumstances include any special vulnerability of the accused, including being in ill health.
In the present case, those considerations are particularly relevant. The applicant’s personal circumstances, and particularly her recent health problems, and her separation from her children, are material in determining whether the risk of reoffending is ‘unacceptable’, in view of the period of time which the applicant will have been on remand if she is not granted bail. It is anticipated that the contested summary charges will not be heard in the Magistrates’ court before next May. The applicant has already been in custody on remand in respect of those charges for more than nine months. It is not possible to conjecture as to the likely or possible sentence which might ultimately be imposed on the applicant in respect of the summary charges. I would expect that there would, at least, be a similar period of delay until the trial of the Curran charges in the County Court. Nor is it possible to conjecture as to her possible sentence if she is convicted on those Curran charges. However, whatever the outcome of those charges, it is evident that the applicant’s health issues, those pertaining to her possible reunification with her children, and the need for her to attend the period of family mourning for her recently deceased brother, do have some immediacy attaching to them. If she remained in custody until the resolution of all the charges against her, each of those issues might be significantly compromised. She would effectively lose any prospect of being reunited with her children, at least for some time. Her health may well be compromised, especially in view of the need for her to be hospitalised on four occasions during the last two weeks. She would be unable to be with family, at a very difficult time for them.
In that respect, the applicant’s Aboriginal heritage is of particular relevance in light of the death of her brother eleven days ago. As Dixon J noted in Re KF,[4] the need for the applicant to participate in funeral arrangements, and in Sorry Business, is an important part of her Aboriginal heritage and culture. They should also serve as an incentive to her to refrain from any conduct which might jeopardise her right to remain at liberty in order to be able to observe those rites.
[4][2022] VSC 349 [48].
Taken together, those considerations are of some weight. As I have discussed, the question whether, ultimately, the respondents have established that if the applicant were released on bail, there would be an unacceptable risk that she would commit an offence while on bail, is not without difficulty. However, for the reasons that I have discussed, I am satisfied that the combined effect of the availability to the applicant of stable accommodation and of assistance from the Law and Advocacy Centre for Women, together with the exceptional circumstances relating to the applicant’s health, children and recent bereavement, are sufficient to render any such risk to be not unacceptable in all the circumstances of the case.
For those reasons, I have determined that the applicant should be granted bail on conditions which include the following:
(1)The applicant attend the Melbourne County Court on 3 October and Sunshine Magistrates’ Court on 4 October and thereafter on such dates as directed by those courts.
(2)The applicant to reside at an address in Ascot Vale.
(3)The applicant must not leave her residence between the hours of 7.00pm and 7.00am (curfew hours).
(4)If required by a police officer, the applicant must present herself at the front door of the residence at any time between curfew hours.
(5)The applicant must report to the Moonee Ponds police station between the hours of 7.00am and 6.00pm on Monday, Wednesday and Friday of each week.
(6)The applicant must not change her residential address without first obtaining the leave of a court.
(7) The applicant must attend all appointments arranged by the Law and Advocacy Centre for Women.
(8)The applicant must not contact witnesses for the prosecution save for the informant.
(9)The applicant must not drive any motor vehicle.
(10)The applicant not leave the State of Victoria without the previous consent of Detective Senior Constable Curran.
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