Re Cowley
[2022] VSC 304
•8 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0128
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an application for bail by MATHEW COWLEY |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2022 |
DATE OF JUDGMENT: | 8 June 2022 |
CASE MAY BE CITED AS: | Re Cowley |
MEDIUM NEUTRAL CITATION: | [2022] VSC 304 |
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CRIMINAL LAW – Bail – Applicant charged with assault, threat to damage property, use carriage service to menace or offend, bail offences and drive whilst disqualified – Complainant the on/off partner of the applicant – Applicant has no prior criminal history – Applicant has outstanding criminal allegations including of family violence – Whether applicant likely to receive custodial sentence in the event of finding of guilt – Whether exceptional circumstances exist that justify the grant of bail – Whether applicant an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail, interfering with a witness or otherwise obstructing the course of justice or failing to surrender into custody – Bail granted subject to stringent conditions– Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E and 5AAAA – HA (a pseudonym) v The Queen [2021] VSCA 64 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Chipkin | Victoria Legal Aid |
| For the Respondent | Mr G Carr | Victoria Police |
HER HONOUR:
By a Notice of intention to make application for bail dated 19 May 2022 the applicant seeks a grant of bail.
On 4 May 2022 the applicant was charged by informant Higgs with assault, threat to damage property, use carriage service to menace or offend (two charges), commit an indictable offence whilst on bail (two charges), contravene conduct condition of bail and drive whilst disqualified. He was remanded in custody.
On 12 May 2022 the applicant was refused bail in the Magistrates’ Court on the twin bases that he had failed to demonstrate exceptional circumstances that justify the grant of bail and that he was an unacceptable risk of committing an offence on bail.
On 3 June 2020 I granted the applicant bail subject to the conditions detailed in paragraph 84 and indicated I would later publish my reasons. These are those reasons.
Alleged Offending
The applicant and the complainant (FB) have been in an on/off relationship for several years.
At the time of the alleged offending, FB lived with her five year old daughter from a previous relationship. It is unclear where the applicant was residing.
During the evening of 24 April 2022 the applicant sent the following text messages to FB (charge 2 – threat to damage property and charge 3 – use carriage service to menace).
‘Dumb cunt’
‘Lol who the fuck u got over ur a shifty dog I swear to god’
‘Ain’t putting up with your fkn bullshit we are done’
‘I mean it’
‘Im blockin you’
‘Promise’
‘Oi’
‘Pull your fkn head in or I’ll put my car through your front door’
FB replied as follows.
‘Who do you think is here matt’
‘Come and have a look for yourself’
At about 10.00pm FB answered a knock to her front door. The applicant then entered her house without permission. FB asked him repeatedly to leave. He refused. FB went to her bedroom and sat on her bed as he looked through her house.
The applicant then entered FB’s bedroom. An argument developed. The applicant flung his bag at FB’s face, pushed her onto the bed and strangled her with both hands for about five seconds. When he released her, FB stood up and pushed the applicant away. The applicant then pushed FB back down, held her wrists and strangled her again for about five seconds, spitting on her as she fought back. FB suffered a scratch beside her eye and red marks on her neck, wrists and hands (charge 1 – assault).
FB told the applicant that her friend, JM, was coming over. The applicant left through a rear door and climbed over the back fence. That movement was captured by CCTV footage. As JM approached FB’s house in her car, she observed the applicant driving his car in the opposite direction.
At about 10.30pm, after JM’s arrival, she observed a scratch on FB’s face. She asked FB if the applicant was in the area. FB described what had just happened. JM contacted the police.
At about 1.00am the following morning, the applicant sent FB a message in the following terms (charge 4 – use carriage service to offend).
‘Your walking around in a fkn shirt while this cunts around? Your the biggest whore going around , money hungry slut, he’s got no money how was he getting home? Don’t worry about any abuse messages because I’m done with you your dead to me I mean it’
At about 4.30am on 25 April 2022, police attended FB’s house and spoke with her. She refused medical assistance but gave an account of the incident. That account was captured on a body worn camera (‘BWC’). FB also provided a sworn statement to police in which she said that she was in fear of the applicant. It also stated that she did not want any police action taken against him and that she would not attend court. Police took photographs of FB’s injuries and a statement from JM.
At about 5.20am the applicant sent FB a further message in the following terms.
‘Lol use wanna know my were abouts , Im about 5 mins away from picking my car up 2 streets away from you but if that doesn’t benefit you I’ll be home in halfa’
At the time of the alleged offending, the applicant was on bail (charges 5 and 6 - commit an indictable offence whilst on bail). The applicant’s bail included a condition to comply with a curfew between the hours of 10.00pm and 5.00am (charge 7 – contravene bail conduct condition).
Sometime on the morning of 4 May 2022, the applicant drove from Werribee to a location near FB’s house. His Victorian driver license was cancelled at the time (charge 8 – drive whilst disqualified).
At 8.46am police attended FB’s house. FB told them that the applicant was not present. Police entered the premises and located the applicant hiding in the garage. FB told police that she did not support the prosecution, that she only wanted a FVIO with limited conditions and that the applicant could reside with her if he was bailed.
The applicant was arrested and conveyed to the Sunshine Police Station. He gave a partial no-comment record of interview. He denied the allegations concerning FB. He admitted to driving on 4 May 2022. The applicant also provided police access to his telephone. Further abusive messages to FB were located.
On 5 May 2022, police successfully applied for an interim family violence intervention order (‘FVIO’) against the applicant in which FB and her daughter are the protected persons. The order has full non-contact conditions, with limited exceptions of contact through a mediator or lawyer or with respect to making arrangements to/participating in counselling or mediation.
Applicant’s personal circumstances
The applicant is 28 years of age. He was born in New Zealand but moved to Australia with his father when 12 years old. His parents had separated when he was aged ten years. Thereafter, he and his sister moved between each of his parent’s homes in Australia and New Zealand.
The applicant was exposed to family violence perpetrated by his father. At the age of 16 he received trauma counselling with respect to the issue. He also left school to commence full-time employment. He later completed a cabinet making apprenticeship.
The applicant has a history of anxiety, depression and anger problems. Reportedly he self-medicates with Xanax. The applicant began drinking alcohol at the age of 14 years and using methylamphetamine at age 18, which usage increased significantly when he was 20 years. The applicant reports reducing usage of methylamphetamine following his release on bail in March 2022 (see further below).
At the time of the alleged offending, the applicant was living transiently, having been evicted from rental accommodation in April 2022.
Criminal history
The applicant has no criminal history.
At the time of the alleged offending the applicant was on bail with respect to five separate matters. It is necessary to set out the chronology of the matters to comprehend the bail situation.
Informant Moon
At about 2.00am on 21 March 2020 FB picked up the applicant from the Commercial Hotel in Werribee. They returned to her home.
At about 3.10am the applicant noticed a baseball cap in FB’s bedroom and text messages on her phone from another man. The applicant became angry and made accusations against FB. She denied the accusations.
The applicant then pushed FB against a wall. He then followed her downstairs, smashed a glass on the floor and again pushed her against a wall by her neck. FB pushed the applicant away and went to a neighbour’s house to call 000.
Police arrived at about 3.31am. They observed scratches on FB’s arm and collarbone. The applicant was located on FB’s front doorstep. He was arrested and conveyed to the Werribee Police Station. He denied pushing FB against a wall or intentionally breaking a glass. He claimed that FB was the aggressor and he had made efforts to restrain her. A family violence safety notice was issued.
The applicant was charged on summons with respect to the Moon matter on 24 April 2020. The return date was 21 May 2020. The evidence discloses that the matter was listed on 8 March 2022. What happened in the interim is not discernible from the evidence.
Informant Jeldres
A full non-contact FVIO to which the applicant was the respondent and FB the protected person was made on 27 March 2020. It was served on the applicant on 7 April 2020.
At about 1.02am on 14 June 2020 police attended FB’s home in response to a reported incident and found the applicant in her backyard. The applicant admitted knowledge of the FVIO. He made no comment when asked why he was present at FB’s home.
The applicant was charged on summons with respect to the Jeldres matter on 13 July 2020. The return date was 4 January 2021. The evidence discloses that the matter was listed on 8 March 2022. What happened in the interim is not discernible from the evidence.
Informant Scott
At 2.00am on 14 June 2020 (that is the same date as the Jeldres matter) the applicant lost control of his car while driving in Werribee and collided with a parked car. A neighbour helped him move his car off the road and took the applicant’s contact details. The applicant walked home.
At about 2.10am police arrived at the scene and were directed to the applicant’s house. The applicant told police he was the driver of the vehicle. He underwent a breath test, which returned a positive reading for alcohol. The applicant was conveyed to the Werribee Police Station for a secondary test. At 3.14am that test returned a breath alcohol content reading of 0.07.
The applicant was issued with a notice of immediate suspension of his driver licence.
The applicant was charged on summons with respect to the Scott matter on 25 August 2020. He failed to appear on the return date of 23 February 2021 and a warrant was issued for his arrest.
Informant Kent
On 9 April 2021 police intercepted the applicant while driving in Newcomb. A licence and registration check revealed that his licence had been suspended on 2 January 2021 for six months and the car’s registration had expired on 24 January 2021.
During a field interview the applicant said that he knew that his licence had been suspended but thought that he had since got it back. He said he was unaware that the car was unregistered.
The applicant was arrested pursuant to the bench warrant issued in the Scott matter on 23 February 2021. He was bailed from the Geelong Police Station to appear at the Werribee Magistrates’ Court on 7 June. Bail was extended on 7 June, 27 July and 7 October 2021. On the latter date he was bailed to attend on 8 March 2022.
The applicant was charged on summons with respect to the Kent matter on 6 May 2021. He failed to appear on the return date of 29 November 2021 and a warrant was issued for his arrest.
On 20 December 2021 the applicant was arrested pursuant to the bench warrant in the Kent matter and bailed from the Werribee Police Station to attend on 8 March 2022.
Failure to answer bail
The applicant failed to attend the Werribee Magistrates’ Court on 8 March 2022. Bench warrants for his arrest were issued with respect to the Moon, Jeldres, Scott and Kent matters.
Informant Knight
At about 4.00am on 14 March 2022 police attended a Werribee address in response to a noise complaint. There they spoke to the applicant. Police determined that the applicant was wanted on four outstanding bench warrants. The applicant told police he had missed court because he was not advised of the date. He was arrested and conveyed to the Werribee Police Station.
The applicant was charged with failure to answer bail.
Admission to bail
Later on 14 March 2022 the applicant was admitted to bail in the Werribee Magistrates’ Court with respect to the Moon, Jeldres, Scott, Kent and Knight matters.
Following the alleged offending in the instant Higgs matter and his remand on 4 May 2022, Victoria Police made an application to revoke bail for all outstanding matters that same day. That application was adjourned to 31 May 2022. On that date the application was struck out.
Next listing
All matters are next listed for mention at the Werribee Magistrates’ Court on 28 June 2022.
Family violence history
In addition to the three family violence related allegations in the Moon, Jeldres and Higgs matters noted above, there have been two further family violence related reports made to police concerning the applicant and FB. The time span of these allegations is 28 February 2020 to 25 April 2022.
In addition to the extant interim FVIO, there has been one previous FVIO protecting FB which expired on 26 June 2021.
Legal considerations
The applicant is charged with a Schedule 2 offence, namely committing an indictable offence whilst on bail,[1] whilst he was on bail for another Schedule 2 offence, namely failing to answer bail.[2] Accordingly, bail must be refused unless the applicant demonstrates the existence of exceptional circumstances that justify the grant of bail.[3] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances, including those prescribed in s 3AAA(1) of the Act.
[1]Bail Act 1977 (‘Act’), s 30B and Schedule 2, item 30.
[2]Act, s 30 and Schedule 2, item 30.
[3]Act, ss 4AA(2)(c)(i), 4A(1A) and 4A(2).
The meaning of exceptional circumstances is well known. The circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[4] In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1).[5] The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[6]
[4]Act, s 4E(1).
[5]Act, s 4E(3)(a).
[6]Act, s 4E(3)(b).
Section 5AAAA(2) of the Act requires the Court to consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a condition or the making of a FVIO.
The Court must also take into account the guiding principles set out in s 1B(1) of the Act.
Applicant’s contentions
The applicant argues that the following factors combine to produce exceptional circumstances.
First, that although the strangulation allegations are serious they caused no injury. Further, the alleged assault is not a serious example of the offence.
Second, there are evidentiary weaknesses in the prosecution case. It is argued that there is a question as to the admissibility of the BWC footage in circumstances where there is no corroborating statement from FB but she has provided a statement of no complaint. It is submitted that the BWC footage is not a ‘recorded statement’ pursuant to s 387G of the Criminal Procedure Act 2009 (‘CPA’). In cross-examination, the informant agreed that the BWC footage does not include at the end of the recording an attestation by FB as to the truth of its contents[7] nor was it given with ‘informed consent’ as defined in the CPA.[8] Further, the assault charge is submitted to be particularly weak because it relies upon the hearsay evidence of JM and photographs of FB which, it is argued, do not depict an injury.
[7]CPA, s 387G(1)(b).
[8]CPA, s 387G(3).
Third, the applicant has no prior criminal history. His current remand is his first experience of custody and has had a salutary effect on him.
Fourth, while the applicant was on bail at the time of the alleged offending, he has no prior history for bail-related offending. And, the applicant has not had the opportunity to demonstrate bail compliance whilst subject to Court Integrated Services Program (‘CISP’) supervision.
Fifth, the applicant is supported by his sister, Luana Cowley. The proposed bail address is her home. Ms Cowley gave evidence at the hearing of the application and gave an undertaking to inform police if she became aware that the applicant was in breach of his bail conditions. In cross-examination the informant stated that the proposed bail address was suitable.
Sixth, the applicant has been assessed by CISP and is recommended for case management. In a report dated 5 May 2022 and an updated report dated 2 June 2022, CISP detailed a treatment plan for the applicant to address the following issues:
(a) A possible brain injury attributable to boxing and repeated concussions the applicant experienced between the ages of five and 16 years. An acquired brain injury (ABI) screening assessment will be arranged to address whether a comprehensive neuropsychological assessment is required.
(b) Substance abuse and/or issues with alcohol use.
(c) Mental health issues through a mental health care plan with the applicant’s general practitioner (‘GP’), with a referral to a psychologist and medication if necessary. The applicant’s GP, Dr Abu Mustafa, has authored a letter dated 19 May 2022 stating that the applicant has previously reported issues with anxiety and anger and has previously been referred to a psychologist.
(d) Offending behaviour. CISP noted that although the applicant denies the allegations, he identified issues with anger management in the domestic context and demonstrated a willingness to engage with a Men’s Behaviour Change Program. CISP recommend he contact the Men’s Referral Service to be assessed for suitability.
Seventh, the delay and likely sentence. It is submitted that, if convicted, the applicant is likely to receive a non-custodial disposition such as a community correction order (‘CCO’). It is argued that the applicant is likely to spend eight to 12 months on remand awaiting a contest hearing date. It is even possible that the remand period could exceed 12 months in light of the backlogs in the Magistrates’ Court consequent upon the COVID-19 pandemic. That his time on remand is likely to exceed any sentence imposed is argued to be particularly so because of his lack of prior criminal history and his compelling personal circumstances, which would attract the operation of the Bugmy principles.[9]
[9]Bugmy v The Queen (2013) 249 CLR 571.
As to risk, the applicant argues, relying on HA (a pseudonym) v The Queen[10] that the fact that the applicant is unlikely to receive a custodial sentence in the event he is found guilty of the charges is of significant importance as his continued incarceration would be akin to a form of preventive detention.
[10][2021] VSCA 64 (‘HA’), [63].
Further, it is submitted that the risks presented by the applicant can be mitigated by the imposition of stringent bail conditions. In this regard the applicant relies upon the following protective factors.
First, the proposed bail plan is substantially different from previous bail undertakings. It includes a number of very targeted protective components, including CISP and related treatment services to address underlying behavioural and substance abuse issues. The applicant has never previously had the benefits of such services while on bail. The proposed bail plan is also significantly more onerous in comparison with previous bail undertakings.
Second, the applicant is aware that non-compliance would see him returned to custody without a further chance of bail. He has now spent nearly four weeks in custody and it has had a salutary effect on him.
Third, there is a FVIO in place to protect FB. It was not in place at the time of the alleged offending. While he is alleged to have previously contravened a FVIO in the Jeldres matter, now, two years later, the applicant’s experience of custody has crystallised the seriousness of non-compliance and bolstered his willingness to comply.
Fourth, the availability of rehabilitative services through CISP mitigates his risk, particularly because the allegations appear to be ‘characteristic of erratic and controlling behaviour that is synonymous with [methylamphetamine] consumption’. More generally it is noted that the CISP report confirms the applicant’s willingness to address all of his issues, namely drug/alcohol use, gambling, mental health, behaviour change and anger management and his possible acquired brain injury.
Fifth, the applicant’s sister and her husband are pro-social influences on the applicant.
Respondent’s contentions
The respondent submits that the combination of circumstances relied upon by the applicant fail to demonstrate exceptional circumstances that justify the grant of bail. Specifically with respect to the strength of the prosecution case, it was submitted that the BWC footage would be ‘of use’ to the court and that FB could be summonsed to appear against her will. Further it was submitted that while a CCO was the ‘most likely’ outcome in the event of a finding of guilt, a combined custodial and community correction order was ‘open to a sentencing court’.
The respondent further argues that the applicant is an unacceptable risk of three of the s 4E(1)(a) factors.
As to endangering the safety or welfare of any person, it is argued that FB is at risk from the applicant. He has strangled her on two separate occasions. His past behaviour indicates that bail conditions and FVIOs do not protect FB from him. Further, the informant completed an analysis of the applicant’s conduct using a Family Violence Multi-Agency Risk Assessment and Management Framework. He notes that many of the evidence-based risk factors of that framework are present in this case. These include escalation in severity of violence, controlling behaviours, threats of harm, attempts to strangle or choke, stalking, previous breaches of court orders, jealous behaviour, drug/alcohol misuse, mental illness and property damage.
As to committing an offence while on bail, the respondent argues that at the time of the alleged offending, the applicant was already subject to five grants of bail for a variety of offences including family violence assaults against the same victim and contravention of a FVIO.
With respect to fail to surrender into custody, the respondent submits that the applicant’s attitude towards attendance at court pursuant to an order is demonstrated by the fact that between 23 February 2021 and 8 March 2022, seven bench warrants were issued as a result of non-attendance.
Analysis
In my view the applicant has demonstrated the existence of exceptional circumstances that justify the grant of bail through the combination of factors relied upon.
Of particular significance in that synthesis is the confluence of the strength of the prosecution case, likely sentence in the event of a finding of guilt and delay. Without in any way binding the sentencing magistrate, it is my view that a CCO is the most likely sentencing outcome in the event of a finding of guilt. That, in combination with the likelihood of many months more on remand prior to the contest date and, for the reasons expressed below, that the risks posed by the applicant can be sufficiently mitigated, amount to exceptional circumstances.
The significance of that subgrouping of factors is reinforced by the personal circumstances of the applicant. He has the prospect of living with his sister and her partner and, for the first time, having the assistance of the supports available to him through CISP.
Turning to the issue of risk, after anxious consideration, I am of the view that the undoubted risks posed by the applicant can be sufficiently ameliorated by the imposition of stringent bail conditions.
In this regard I again give weight to the fact that the applicant is unlikely to receive a custodial term in the event that he is found guilty. In so doing, I note that this factor alone does not and cannot compel that bail must be granted, notwithstanding the submissions as to continued remand being akin to preventive detention. So much was stated by the Court of Appeal in HA.[11] But, as that Court held, each case must be decided on its own facts and by reference to the s 3AAA(1) ‘surrounding circumstances’.[12]
[11]HA, [62].
[12]HA, [66]. Other circumstances of significance in that case were the applicant’s age of 15 years and his functioning at the level of a child of four to six years (and s 3B of the Act), his Aboriginality (and s 3A of the Act), his low intellectual quotient and his personal and psychological profile and his extreme vulnerability to the influence of other young people in custody.
Here, that particular circumstance is reinforced by the many protective factors that the applicant can now call in aid and detailed above. Those factors place him in a very different position from that in which he has been previously.
Specifically with respect to s 5AAAA(2) of the Act, while I am of the view that if the accused were released on bail there would be a risk that he would commit family violence, for the reasons already articulated I am satisfied that that risk can be mitigated by the conditions of the grant of bail and the extant FVIO in FB’s favour. I note that the alleged breach of the FVIO in the Jeldres matter is breach by presence alone.
Conclusion
The applicant is admitted to bail on his own undertaking, to attend the Werribee Magistrates’ Court on 28 June 2022, with the following conditions:
(a) Reside at [redacted] (‘the bail address’);
(b) Notify the informant of any proposed change to the bail address at least 24 hours in advance of such change;
(c) Not leave the bail address between the hours of 10.00pm and 6.00am (‘the curfew hours’) unless directed to do so by a staff member of the Court Integrated Services Program (‘CISP’) or a member of Victoria Police;
(d) Present at the front door of the bail address at any time between the curfew hours when requested to do so by a member of Victoria Police;
(e) Report each Monday and Friday to the Officer in Charge (or his or her nominee) at Werribee Police Station between the hours of 8.00am and 6.00pm;
(f) Comply with any Family Violence Intervention Order (whether interim or final) or any other protective order where the protected person is FB;
(g) Not contact any witness for the prosecution except the informant;
(h) Comply with all lawful directions and recommendations of CISP staff whilst engaging in treatment and attend all appointments recommended by CISP staff;
(i) Not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(j) Not drive a motor vehicle during the period of bail;
(k) Surrender passports (if any) to the informant within 24 hour of release and not apply for any other passport;
(l) Not attend any points of international departure; and
(m) Not leave the State of Victoria without first obtaining the leave of a court.
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