Re Co
[2021] VSC 412
•7 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0151
| IN THE MATTER of the Bail Act 1977 | Crown |
| v | |
| IN THE MATTER of an application for bail by CO | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 July 2021 |
DATE OF RULING: | 7 July 2021 |
CASE MAY BE CITED AS: | Re CO |
MEDIUM NEUTRAL CITATION: | [2021] VSC 412 |
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CRIMINAL LAW – Bail – Applicant charged with stalking and other offences – Whether a compelling reason exists justifying a grant of bail – Whether unacceptable risk – Bail granted with strict conditions – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Rofe | Chester Metcalfe & Co |
| For the Respondent | Mr N Watt | Victoria Police |
HER HONOUR:
Introduction
Corey O[1] (‘the applicant’), is 32 years old and has been on remand since 8 April 2021. He is charged by Senior Constable Billy Tsimiklis (‘the informant’) with the following charges (‘Tsimiklis charges’):
[1]Pseudonyms and initials are used throughout these reasons for those involved.
(a) Stalk another person (contrary to s 21A(1) of the Crimes Act 1958 (‘Crimes Act’) between March 2020 and 7 April 2021;
(b) Make threats to kill (contrary to s 20 of the Crimes Act) between 6 April 2021 and 7 April 2021;
(c) Threat to Destroy/Damage Property (contrary to s 198(a) of the Crimes Act) between 6 April 2021 and 7 April 2021;
(d) Threat to Inflict Serious Injury (contrary to s 21 of the Crimes Act) on 7 April 2021;
(e) Threat to Distribute Intimate Image (contrary to s 41DB of the Summary Offences Act 1966) on 7 April 2021; and
(f) Threat to Commit a Sexual Offence (contrary to s 43(1) of the Crimes Act) on 7 April 2021.
This is the applicant’s first time in custody. He has only one prior court matter in 2013, which resulted in a good behaviour bond.
The applicant was refused bail on the Tsimiklis charges at the Heidelberg Magistrates’ Court on 24 May 2021, on the basis that he had failed to show a compelling reason justifying the grant of bail and because he posed an unacceptable risk of committing an offence while on bail or endangering the safety or welfare of any person.[2]
[2]Certified Extract of Court Order made 24 May 2021 in the Heidelberg Magistrates' Court, Appendix B to the Report of Billy Tsimiklis (‘Informant’s Report’), annexed at NM-1 to the Affidavit in Response to an Application for Bail of Nicholas Moran sworn 28 June 2021 (‘Affidavit in Response’).
The Tsimiklis charges are next listed for Mention in the Heidelberg Magistrates’ Court on 9 August 2021.
Circumstances of the applicant’s alleged offending and arrest
The applicant and the complainant (AW) met in early 2020 at their workplace, a fresh food wholesale business in Melbourne’s Western suburbs. AW had moved to Melbourne in 2018, and was new to Australia. She did not know many people. The applicant and AW developed a friendship while working together. The applicant says that he and AW were in an intimate relationship. AW denies this, saying they were just friends. However, the applicant referred to material tending to support the existence of a romantic relationship with AW in the past. Regardless of the status of their past relationship, the prosecution case is that the applicant became obsessed with AW, and stalked and harassed her when she tried to break off all contact with him.
In March 2020, the applicant was looking for new rental accommodation because the rent at his current house was too expensive. AW suggested the applicant move in to a spare bedroom at the home she was renting in Mill Park (the ‘first shared address’). AW says she only intended for the applicant to move in as a friend, so they could share the cost of rent. The applicant moved into AW’s home shortly thereafter.
At some stage in 2020, when the applicant and AW were living at the first shared address, the applicant is alleged to have filmed AW in the shower.[3] It is alleged that the applicant refused to delete the video when requested to do so. During his police interview, the applicant claimed that AW was aware that he filmed her in the shower. He denied that AW asked him to delete the video.
[3]The Informant’s Report indicates this video was taken in February 2021. However, after the conclusion of the informant’s oral evidence, instructions were given by Mr Watt acting for the Respondent, to the effect that, by way of clarification, the shower video was obtained when the applicant and AW lived at the first Mill Park address in 2020, but no greater certainty could be given as to the actual date.
AW alleges that between March and June 2020, the applicant entered her room in the first shared address on an unspecified number of occasions, and pushed her and abused her. On one such occasion, the applicant is said to have pushed AW up against a wall and said to her ‘I’m the best man for you.’
Between August and September 2020, the applicant inspected a room at another rental property. At the inspection, the applicant told the landlord (who also resided at the property) that he intended to move into the room with his girlfriend.
On 23 September 2020, AW contacted the landlord of the new rental that the applicant had previously inspected. She identified herself via text as the ‘couple’ who were about to move in, and she asked whether there was a separate room she could rent. The applicant and AW moved in to the new accommodation on 27 September 2020 (the ‘second shared address’) and shared the same bedroom. After one week in the house, AW asked the landlord again whether there was a second room available. There was, and AW moved into that second room.
In September 2020, due to problems working alongside the applicant, AW arranged to change her work shifts so she and the applicant would not be working together. AW alleges that despite this, the applicant would wait in the carpark for AW to finish work. He brought gifts, told her he loved her, and on occasion threatened to rape and kill her. The informant told the Court that he had spoken to the team leader at the workplace of the applicant and AW, who stated he was not aware of the nature of their relationship but was aware that there was some kind of trouble between them.
On 2 December 2020, AW moved away from the second shared address to an undisclosed address. That same day, AW contacted the landlord of the second shared address to advise she had moved out because she could not live in the same address as the applicant anymore. She returned to the second shared address about two weeks later to collect some belongings. During that visit, AW and the complainant had a verbal argument, during which the applicant threatened to kill AW and to ‘burn her car down’. The landlord and his girlfriend overheard the argument from their room, and heard the applicant’s threats. It does not appear that the landlord notified the police at that time. The informant gave evidence that the landlord was unable to confirm whether the applicant and AW were in a relationship. He said that the landlord’s girlfriend came and went from the property but she could not indicate one way or another if there was an intimate relationship.
On 28 March 2021, the applicant texted AW asking if she was having fun with her new boyfriends and referred to her lying and cheating.
On 6 and 7 April 2021, the applicant sent a series of very disturbing and threatening text messages to AW. He threatened to kill or rape her, and to harm her family. The messages were graphic in nature and caused AW to feel terrified.
On 8 April 2021, AW attended the Mill Park police station and made a statement to police about the applicant’s behaviour. The following day, police executed a search warrant at the applicant’s home address and the applicant was arrested. Police also seized several items from the address, including cameras, mobile phones, and a GPS tracking device. The informant told the Court during the hearing that there were many photos on the devices seized showing the applicant and AW together, including the shower video referred to by her. When asked as to the time period over which the photos were taken, the informant said there were multiple photos over multiple days but he not able to be more specific.[4] The informant gave evidence that he had read the affidavit of the applicant’s mother attaching photos suggestive of a romantic relationship between the applicant and AW and that he had asked AW about the nature of their relationship. She told the informant that she took the photos of herself and the applicant out of fear, because the applicant wanted her to post photos to create the illusion that they were in a relationship. Under cross-examination, the informant agreed that he did not ask the complainant about photos that appear to have been taken by someone other than AW or the applicant.
[4]It was not suggested that any of the other photos were sexualised or improper.
During his record of interview on 8 April 2021,[5] the applicant stated that he was in an ‘on again, off again’ intimate relationship with the complainant. As mentioned, he stated that AW was aware that he had filmed her in the shower and denied that she had asked him to delete the video. He admitted that he had, on two occasions, threatened to post the video online. He also admitted to sending threatening text messages to AW between 30 March and 7 April 2021, stating that he wanted to make her feel ‘down’ and ‘unloved’ and hoped that she was scared by his threats. He also stated that he had been on drugs at the time, was ‘out of [his] mind’, and never should have sent the messages. He also said he felt humiliated, embarrassed and ashamed of himself. He denied all other allegations put to him. The applicant was charged and remanded that day.
[5]In the Preliminary Brief, in the ‘Statement by the accused’ section, the date of the interview is incorrectly stated as 8 April 2020.
On 9 April 2021, the Heidelberg Magistrates’ Court granted an interim personal safety intervention order (‘PSIO’) for AW’s protection, against the applicant, with full no-contact conditions. A final PSIO with no-contact conditions was granted on 19 May 2021. The PSIO expires on 19 May 2026.
Other matters
Corey O has no other outstanding or pending criminal charges.
The applicant’s personal circumstances and criminal history
The applicant was raised in the northern suburbs of Melbourne and left home at the age of 27 due to his father’s ill health.
The applicant was teased and bullied at school for being overweight, and his grades were poor. After leaving school, he held employment in a number of fields, including carpentry, car detailing and customer service, until he obtained employment at the fresh food wholesale business approximately three years ago.
In his twenties, the applicant was in a long-term relationship with a woman named Ashleigh F. She lived with him and his family for several years. He claims that Ashleigh F had introduced him to drugs, and he struggled to cope as their relationship deteriorated.
The applicant had no formal mental health diagnosis prior to his remand, but reports having presented to hospital on several occasions in the context of experiencing panic attacks and thoughts of self-harm.[6] He was reportedly turned away from hospitals each time he presented and told he did not need treatment or medication.[7] He also self-referred to a psychologist in 2019, and attended two sessions.[8]
[6]Report of Marjorie Botes, CISP, dated 18 May 2021, 1 (May CISP Report), annexed at JB-4 to the Affidavit in Support of Bail of Joshua Bruzzichessi affirmed on 15 June 2021 (‘Affidavit in Support’).
[7]May CISP Report, 1.
[8]Report of Gina Cidoni dated 9 June 2021, [35] (‘Cidoni Report’), annexed at JB-7 of the Affidavit in Support.
In a report prepared for the purposes of this application, psychologist Gina Cidoni said that personality testing indicated the applicant suffered from depression that is interspersed with hypomania and problems with emotional regulation: ‘Clinical syndromes include: Bipolar Affective Disorder 2, Intermittent Explosive Disorder and Substance Use Disorder (in enforced remission)(according to DSM-5)’.[9]
[9]Cidoni Report, [61].
Ms Cidoni opines that the applicant’s capacity to respond to stressors is therefore compromised, resulting in difficulties controlling his anger. He has reportedly found physical exercise helpful in the past.[10] Ms Cidoni also found that his verbal comprehension was much lower than peers his age, and he performed lower than peers his age in the ‘Working Memory Index’ which measures:
[…]his ability to register, maintain, and manipulate auditory information in conscious awareness, which requires attention and concentration, as well as visual and auditory discrimination.[11]
[10]May CISP report, 1; Cidoni Report, [32].
[11]Cidoni Report, [43]-[44].
The applicant has a history of substance use, commencing with cannabis use at the approximate age of 20, followed by methamphetamine use in the two-year period preceding his remand. He stopped using drugs briefly at age 29, but relapsed the following year when he was 30.[12] He reports heavy drug use in the period immediately prior to his arrest, and daily Ice use at the time of the alleged offending.[13] Ms Cidoni said that the applicant’s increased substance use during the period of the alleged offending would have further impaired his insight and exacerbated his underlying mental health condition. She opines that management of his drug use is therefore ‘paramount’.[14]
[12]Cidoni Report, [37].
[13]Report of Brodie Ryan, CISP, dated 6 July 2021, 1 (‘July CISP Report’).
[14]Cidoni Report, [69].
The applicant only has one prior criminal matter. On 15 May 2013, he was released without conviction on a good behaviour bond for 24 months for a single charge of recklessly causing injury. The incident occurred in December 2012. The victim was the applicant’s ex-partner, Ashleigh F. The applicant’s mother, Pamela S, gave evidence at the oral hearing about the incident. She said the incident occurred out the front of their house, when Ashleigh F and the applicant were having an argument. Neither Pamela S nor her husband were home at the time. Pamela S told the Court that the applicant apparently stormed outside during an argument with Ashleigh F, and threw something at her. Ashleigh F rang her mum and arranged to be picked up. Ashleigh F received a laceration to the right forehead which required several stitches.[15] On 14 May 2015, the bond was dismissed due Corey O’s compliance. The Court is aware that a 12-month family violence intervention order (‘FVIVO’) was also put in place after that incident. It appears there were no breaches reported.
[15]Informant’s Report, [32].
The applicant has no bail history.
The applicant described his circumstances in prison on remand, stating that initially he spent three to four days at the cells in Mill Park, then he spent 15 days under quarantine in a remand prison,[16] where he spent upwards of 23 hours per day in his cell during the quarantine period. He was then transferred to another prison and remained there until he was moved to his current location due to threats from other prisoners. This occurred after he took a fan for his own use to dry his clothes. He has had one medical visit and one psychiatric nurse appointment since being in custody. These were routine appointments made for him. He has not been prescribed any medication whilst in custody. Up until recently, he was working as a billet in the prison kitchen, but lost that job after he injured his hand picking up a pot.
[16]It is not necessary for this ruling to refer to specific prison locations.
Applicable law
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[17] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.[18]
[17]The Act, s 1B(2).
[18]The Act, ss 1B(1)(a) and 1B(1)(b).
Step 1: Show compelling reason test
Pursuant to s 4AA(3) of the Act, because charge 1 (stalking) of the Tsimiklis charges is a Schedule 2 offence within the meaning of the Act,[19] and because none of the circumstances under s 4AA(2) of the Act apply in this case, Corey O must satisfy the Court that a compelling reason exists that justifies the grant of bail.[20] In determining whether a compelling reason is established, pursuant to s 3AAA, I must take into account the relevant surrounding circumstances.
[19]The Act, Sch 2, Item 8a — Stalking contrary to s 21A of the Crimes Act 1958, where he has been convicted of an offence against a person in the course of which he used violence in the last 10 years (being a charge of Recklessly Causing Injury, for which he was sentenced on 15 May 2015 in the Broadmeadows Magistrates’ Court).
[20]The Act, ss 4C(1A) and 4C(2).
It is clear from the authorities that a compelling reason can be established by a combination of circumstances.[21] It is not necessary for the applicant to show a reason that is ‘irresistible or exceptional’. While ‘compelling reason’ is not defined, the Court of Appeal has held that it is one which is ‘forceful, and therefore convincing’, a reason that is ‘difficult to resist.’[22]
[21]Re Koshani [2019] VSC 678.
[22]Rodgers v the Queen [2019] VSCA 214.
Step 2: Unacceptable risk
Even where the Court is satisfied that a compelling reason exists, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail,[23] Corey O would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.[24]
[23]The Act, ss 4D(1)(b), (3).
[24]The Act, ss 4D(1)(b), (2).
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’. The Court is also directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
Delay and COVID-19
Potential delay as a result of the COVID-19 pandemic gives rise to consideration of the principles to be applied in the context of bail expounded by Beach JA in Re Diab.[25]
[25][2020] VSC 196, [38].
Family violence risks
Because the nature of the relationship between the applicant and the complainant was in dispute, it was somewhat unclear whether or not this was a family violence matter.
The respondent’s position was that because of the perception of the applicant, and his mother, that a relationship existed between Corey O and AW, family violence risks are a relevant consideration for the Court. In light of that, the respondent submitted there was a real risk the applicant would engage in further threats and violence, particularly given his single prior matter was for family violence offending.[26]
[26]Respondent’s Written Submissions, [16]-[17].
The Court also notes the oral submissions of the applicant’s solicitor at the hearing that, technically speaking, this is not a family violence matter.[27]
[27]Mr Rofe referred to s 3AAA(f) of the Act and noted the absence of a family violence intervention order or safety notice in this case, thus arguing this was not technically a family violence case. The Court also notes the operation of s 5AAA(2), and notes the applicant is not charged with a family violence offence as defined at s 3 of the Act.
Regardless of whether this matter is or is not properly characterised as a family violence matter, the considerations the Court would have to take into account were this a family violence matter,[28] align with what I consider I should take into account in this matter by way of surrounding circumstances in any event. The Court has had regard to the nature of the applicant’s offending, and the fact that he considered AW a romantic partner. Prominent in the mind of the Court was the risk the applicant posed to the complainant.
[28]The Act s 5AAAA(1) and (2).
The Applicant’s arguments in support of bail
The applicant gave evidence at the hearing in support of his application, as did his 65-year-old mother, Pamela S.
Pamela S is retired and lives at the proposed bail address in Meadow Heights, being Corey O’s family home, with Pamela S’s husband, John O, who is also retired. In addition to her oral evidence, Pamela S also swore an affidavit that was filed in support of the application, and she confirmed the accuracy of that affidavit at the hearing.[29] Pamela S has maintained regular contact with the applicant while he has been on remand. She is aware of the charges against him.
[29]Sworn 2 July 2021 (‘Affidavit of PS’).
The applicant relies on the following combination of factors to establish both a compelling reason justifying a grant of bail, and to show that he does not present an unacceptable risk:[30]
[30]Set out in the Affidavit in Support and oral submissions of Mr Rofe at the hearing.
(a) Limited criminal history: This is his first time in custody. Regarding the applicant’s only prior court matter, Pamela S was aware of it and gave some useful, contextual evidence about how that matter unfolded as described earlier in these reasons. Pamela S testified that the applicant was in a relationship with Ashleigh F for eight years, during which time Ashleigh F lived at the family home with Corey O and the family for several years. Ashleigh F continued to live with the family after the incident where she was injured by the applicant. She moved out towards the end of the relationship. Pamela S believes it was Ashleigh F who introduced her son to cannabis. Mr Rofe for the applicant pointed out that the applicant was placed on a two-year good behaviour bond for his single prior matter, which he completed without breaching, and was discharged from without a conviction. This was said to bode well for his capacity to keep court orders.
(b) The applicant has strong family support: The applicant proposes to reside with his parents if released on bail. Pamela S and her husband are aware of the applicant’s drug abuse, in particular Ice, and of his need for mental health treatment. Pamela S has discussed with the applicant the need to tap into programs to get a handle on his drug use. She has also made an appointment for the applicant with their local GP on 12 July 2021 for the applicant to seek a mental health care plan. The applicant and his family have used the same GP clinic for 30 years. Pamela S told the Court that she and the applicant’s father propose to assist the applicant on bail by transporting him to appointments and to assist him in finding employment.[31] Pamela S confirmed the July CISP report was read to her on the morning of the hearing and that she was happy to facilitate CISP. She clarified some matters in her affidavit including that although her husband John O had previously been diagnosed with cancer, he has recently been given the all clear. John O is an insulin-dependent diabetic, but Pamela S does not foresee any issues with the applicant residing with herself and her husband regarding her husband’s medical conditions. In fact, she said Corey O could be of some help. Pamela S told the Court that Corey O has a very close relationship with John O, and is one of eight children. Other family members regularly drop in to the premises, including grandchildren, and some have been made aware of Corey O’s predicament and have expressed shock and disappointment. Pamela S considers those family members would also help to keep an eye on the applicant if released on bail. She noted that although the applicant only has a learner’s permit for a motorcar, he has a current probationary motorcycle license, which he has held for three years, however she and her husband would happily assist in driving him to appointments if needed. Pamela S undertook to notify the informant and the Court (if necessary) if the applicant breached any of his bail conditions. Pamela S stated in her affidavit that her and husband were always under the impression that the applicant and AW were in a romantic relationship, and she produced some evidence in support of this. Under cross-examination, Pamela S conceded that when she selected photos annexed to her affidavit, she selected photos enhancing the perception that the applicant and AW were in a relationship.
[31]Affidavit of PS, [32].
(c) Pamela S’s affidavit indicates her surprise at AW’s account of not having been in a relationship with the applicant. She mentions seeing physical behaviour of affection, and that the applicant and AW spoke of wanting to buy a house together. Nevertheless, Pamela S had been shown the text messages Corey O sent to AW and was ‘horrified’ by them and disapproves of Corey O and AW having any further contact. The applicant had discussed his circumstances with Pamela S and indicated he never wants to see AW again. The applicant’s solicitor described Pamela S as a ‘pillar of support’ for the applicant, and emphasised that his father was also supportive. He submitted that the applicant’s strong family support would buttress any bail conditions that were imposed.[32]
[32]Transcript of Proceedings, Application for Bail by [CO] (Supreme Court of Victoria), Justice Jane Dixon, 7 July 2021, (‘Transcript’), 48.
(d) Availability of CISP: The applicant was assessed as suitable for the CISP program at the time of his previous bail application in the Heidelberg Magistrates’ Court. For the purposes of this application, he was reassessed and on 6 July 2021, was again found suitable for CISP.[33] If bailed, it is proposed that he receive case management and be supported to attend Alcoholics and Narcotics Anonymous classes, a Men’s Behaviour Change Program, and be encouraged to attend his medical appointment on 12 July 2021, to arrange a mental health care plan, and to self-refer to anger management and counselling. Pamela S confirmed she would be willing to assist the applicant to engage in the programs recommended by CISP. Regarding all of the above, the applicant’s solicitor described this as a ‘multi-pronged approach’ to addressing risk, noting the applicant’s level of motivation because he ‘very much does not want to go back to jail’.[34]
[33]July CISP Report.
[34]Transcript, 46.
(e) Good work history and good prospects for rehabilitation: The applicant has a reasonable work history and himself explained how he would go about seeking employment on his release. The applicant in his evidence described the jobs he has held and his most recent employment at the fresh food wholesaler where he met AW. He has worked there for the last three years part time, earning a good income, and was still working there when he was arrested and remanded in custody. The applicant stated that if granted bail, he would seek employment through the same job agency that assisted him to obtain his previous employment. He is confident that if bailed, he would quickly find another job, such as in machine operations or product handling. He has attended approximately four educational programs in custody and thought that one may have covered substance abuse. He had missed two courses due to having other things on his mind and not being reminded about the courses by prison staff. On the applicant’s prospects if released on bail, Pamela S also said she believed the applicant would be able to return to work through the job agency he had used in the past. Mr Rofe submitted that the applicant’s good work history, insight into his offending (discussed below), and the availability of CISP bodes well for his prospects of rehabilitation.
(f) The applicant’s demeanour and insight: The applicant’s solicitor referred to Corey O’s demeanour and attitudes expressed while giving evidence, both of which were indicative of him taking responsibility for his actions. It is noted that the applicant told his mother that his time in custody had been a ‘wake-up call’ for him.[35] The applicant confirmed in his oral evidence that when he sent the text messages to AW, he was under the influence of drugs and alcohol, and did not think he would have sent the messages if he had not been affected by those substances. He agrees he needs professional help to assist with his drug abuse. He said that when he was first remanded, he slept a lot and then his mind was becoming more clear about what he had done and what he had said to AW. He thought about how it would have affected him if the shoe was on the other foot. He said this has been a ‘nightmare’ for him and the victim.[36] He indicated he has help from his mother and father, he said he wished this had never happened. He accepts that he has had a problem with Ice, and considered that ‘seeing how bad it’s made my life, it’s best not to be on it anymore’.[37] He intends to do his best to control what he does to stay off it in the future. He expressed he was sincerely sorry to AW for his behaviour, and would never have liked to have had those nasty things said to him or those sorts of threats made to him. He stated that he would not forgive himself and should have learned from past mistakes. He believed that he had let down his family members. When asked about the forms of exercise he has engaged in to deal with stress in the past, he referred to a martial arts course and a gym membership. The applicant’s solicitor submitted that the applicant’s evidence demonstrated his remorse and contrition and that there had been a complete ‘about-face’ with respect to his client’s attitude.[38] He said the applicant understands and appreciates the severity of his offending and that he would be motivated to comply with bail by his desire not to return to prison.[39]
(g) Delay: Mr Rofe indicated that the matter would likely resolve as a plea because the applicant had made frank admissions to committing offences in respect of the complainant. He said that he had made enquiries with Heidelberg Magistrates’ Court about a date for a plea, and the first available date for a person in custody was September.[40] As such, he submitted that there is a risk that the time in custody might exceed the ultimate appropriate sentence.[41]
(h) Stringent bail conditions: Lastly, the applicant’s solicitor noted the availability of stringent bail conditions that were adequate to address risk including: compliance with all lawful directions of CISP, static residence with his parents, a curfew, compliance with the PSIO in place to protect AW, attendance at a general practitioner to obtain a mental health care plan and a prohibition on his consumption of alcohol or use of any drug of dependence, and restrictions on his mobile phone use. The applicant expressed in his oral evidence that if granted bail he was willing to agree with CISP conditions and would link in with alcoholics anonymous or narcotics anonymous at once, and would attend his GP at once, and he would consent to the report of Gina Cidoni being sent to the Coolaroo clinic. He accepted that he needs mental health assistance. He admitted to past suicidal thoughts and past anger management issues and was willing to engage with services to address those issues. He was also happy to engage with the Men’s Referral Service for a Men’s Behaviour Change Program. The applicant also stated that when the PSIO was put in place, the conditions were thoroughly explained to him by the Magistrate and that he understands that it is in place for five years. He said he would not have any issues complying with it because he does not want to go back to jail. He said he would comply with any conditions of bail imposed. He also understood that if bail were breached, he would return to custody. He said ‘I want to live my life like she should be able to without fearing.’[42] Asked what he would do if he saw her coming down the street, he said he would turn around and walk away.
[35]Affidavit of PS, [29].
[36]Transcript, 38.
[37]Transcript, 33.
[38]Transcript, 45.
[39]Transcript, 46.
[40]He indicated a plea date would be further away for someone on bail.
[41]Transcript, 40-41.
[42]Transcript, 37.
The Respondent’s arguments opposing bail
The respondent opposes the application on the basis that the applicant has not shown that a compelling reason exists that justifies the grant of bail, and because the applicant poses an unacceptable risk of endangering the safety or welfare of any person, interfering with a witness or otherwise obstructing the course of justice in any matter, or committing an offence whilst on bail.[43] The respondent also noted that AW is opposed to the applicant being granted bail, and is fearful of him.
[43]The Respondent filed written submissions dated 6 July 2021 (‘Respondent’s Written Submissions’), and also set out their position in oral submissions at the hearing on 7 July 2021.
In oral submissions, Mr Watt for the respondent conceded that the applicant’s evidence was candid, as was that of his mother.[44] He acknowledged that there were lots of factors in favour of the compelling reason test being satisfied.[45]
[44]Transcript, 52.
[45]Transcript, 52.
Regarding risk, the respondent indicated that in light of the factors in favour of the applicant, he did not place a lot of force on the unacceptable risk test. However, the he underscored the seriousness of the alleged offending and raised concern about the apparently vengeful motive for the applicant’s offending.[46] He also submitted that a term of imprisonment is within range if the applicant is ultimately convicted, and characterised the offending as being at the ‘upper end’ of the sentencing scale.[47] However, the respondent conceded in oral submissions that community protection can be served by rehabilitation.[48] Further, the respondent noted that given the anticipated delay in the finalisation of the matter, the applicant’s time on remand could exceed any sentence imposed.[49]
[46]Transcript, 53.
[47]Transcript, 54.
[48]Transcript, 54.
[49]Respondent’s Written Submissions, [29].
However, the respondent referred to Ms Cidoni’s report and submitted the applicant’s mental health conditions, and his difficulties with respect to hypomania and problems with emotional regulation heighten the risk, in particular the risk posed to the complainant. The respondent also noted that the report of Ms Cidoni gives rise to heightened concern regarding the applicant’s risk of endangering the safety and welfare of any person and of interfering with witnesses.
Regarding his concerns about bail, the informant emphasised the risk that the applicant would commit further offences, despite the fact he had been in custody for 90 days. Further, though there is now a PSIO in place, the applicant had not been at large under the PSIO it is not known whether the PSIO would be effective.
The respondent submitted that the applicant’s conduct is said to demonstrate a pre-occupation with AW, and a need to control her by demeaning and coercive conduct.[50] The informant is concerned that if granted bail, the applicant will attempt to locate AW and continue to stalk her. The informant’s report notes that the police hold serious concerns that the applicant may carry out the threats he has previously made to AW.[51]
[50]Respondent’s Written Submissions, [19].
[51]Informant’s Report, [36(c)(i)].
The informant indicated that if bail were granted he considered that a static residence with his family was desirable, along with a curfew, a requirement to comply with the PSIO, and not to contact AW by any means, and not to contact any prosecution witness. He also supported a condition requiring the applicant to pursue drug rehabilitation and a condition requiring him to abide by any restrictions on mobile phone use.
Analysis
Is there a compelling reason that justifies the grant of bail?
I am satisfied that the applicant has established a compelling reason justifying a grant of bail through a combination of the following factors:
(a) This is his first time in custody;
(b) Regarding his only prior matter, whilst of some concern because it involves an assault on his previous de facto partner, it appears that following that incident, the applicant was compliant with a two-year good behaviour bond and a FVIO (which expired after 12 months). After the expiry of the good behaviour bond, he was discharged without conviction, and there were no reported breaches of the FVIO. This demonstrates an ability to comply with court orders.
(c) His very strong family support. The Court was impressed with the evidence of the applicant’s mother in this regard.
(d) A very promising CISP report was provided regarding the kinds of services that could be put in place to ensure that the applicant does not reoffend. In addition, arrangements have been made for a mental health care plan through a GP, and the applicant has indicated that he has a prospect of returning to employment if granted bail.
(e) The applicant’s sworn evidence before the Court. The evidence indicated that the applicant has reflected on his behaviour and is remorseful, and determined to seek help and avoid any further contact with the complainant.
(f) There is a risk that if not granted bail, the applicant’s period on remand could exceed a sentence imposed in the Magistrates’ Court.
All of the above factors satisfy me as to the compelling reason test.
Does the Applicant pose an unacceptable risk of engaging in conduct described in s 4E(1) of the Act?
I do not consider that the applicant poses an unacceptable risk of engaging in conduct described in s 4E(1) of the Act.
Any risk that he does pose can be addressed through the stringent bail conditions proposed. In coming to this finding, I found the sworn evidence given by the applicant and his mother to be persuasive. I have also been influenced by the applicant’s limited prior criminal history and the options available for structured support for the applicant on bail. Those structured supports will address the apparent underlying causes of the applicant’s offending, being his drug abuse and possible underlying mental health conditions. Accordingly, the structured bail supports will help the applicant to commence his rehabilitation, reducing the risk of re-offending and thus protecting the community.
The PSIO adds an additional layer of protection, and I will make it a condition of bail that the applicant is to comply with that Order, which will serve as an additional incentive to stay away from the complainant in this matter. The applicant’s evidence indicates to me that he fully understands the terms of that Order and does not intend to breach it. His family are in a position to reinforce the importance of avoiding contact with AW in the future. The applicant has in the past demonstrated an ability to comply with Court Orders, as discussed above.
Accordingly, bail is granted.
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