Re CR
[2024] VSC 197
•19 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0076
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by CR |
---
JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 April 2024 |
DATE OF RULING: | 19 April 2024 |
CASE MAY BE CITED AS: | Re CR |
MEDIUM NEUTRAL CITATION: | [2024] VSC 197 |
---
CRIMINAL LAW — Bail application — Charges of contravene a family violence intervention order, persistently contravene a family violence intervention order and stalking — Alleged victim is applicant’s estranged husband — Estranged husband and five children protected by the family violence intervention order — Children also subject to interim accommodation orders imposed by the Children’s Court — Alleged breaches of orders — Compelling reason test — Compelling reason conceded by respondent — Unacceptable risk alleged — Applicant a 44 year old woman with a very limited criminal history — First time in custody — Very unlikely to receive a custodial sentence if found guilty — Substantial bail guarantee — Family support — Poor mental health but undergoing treatment — Bail granted —Bail Act 1977 (Vic) ss 3AAA, 4E & 5AAAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Balmer & Associates |
| For the Respondent | Ms C Foot | Victoria Police |
HER HONOUR:
Introduction
CR[1] (‘the applicant’) applies for bail on five charges of contravene a family violence intervention order (‘FVIO’), one charge of persistently contravene a FVIO and one charge of stalking.
[1]The parties have been anonymised to protect the identity of the children.
Background
All the alleged offending concerns the applicant’s estranged husband, AK, and five of their six sons - JK (aged 15), GK (aged 13), IK (aged 10), BK (aged 8) and RK (aged 4) (‘the children’). The couple have one other son, DK (aged 12), who lives with his paternal grandparents. Based on the material I have seen, the family can fairly be described as dysfunctional and the Department of Families, Fairness and Housing - Child Protection (‘Child Protection’) are involved.
The applicant and AK separated in late 2022, but remained living under the same roof. The applicant was finally excluded from the Caulfield North family home (‘family home’) by an interim accommodation order made by the Children’s Court in June 2023, following breaches of earlier interim accommodation orders. As a result, the applicant has been living between family members and hotels. There are current interim accommodation orders in relation to all children. JK, GK, IK, BK and RK live with AK in the family home.
On 28 September 2023 an interim FVIO was made, naming AK and the children as protected family members and the applicant as the respondent. It was served on the applicant the same day. The interim FVIO prohibited the applicant from going within 200 metres of the family home, and prohibited contact between the applicant, IK, BK and RK, unless in accordance with a Child Protection order. Contact between the applicant and AK, JK or GK was not prohibited or restricted.
Alleged offending
Informant Dowsett matters
9 March 2024 (charge one —contravene FVIO)
It is alleged that on 9 March 2024 at approximately 10:50pm, the applicant attended the family home, poked her head through the doggy door and gained the children’s attention. One of the children let the applicant inside. AK heard the applicant, went to the basement and contacted Triple 0.
The applicant had already left the property before the police arrived. Police spoke to JK, who stated that the applicant had come into his room and requested he say ‘goodnight’ to her. JK told the applicant ‘she was not welcome’ and that she ‘had to leave,’ after which she left the address.
12 March 2024 (charge two – contravene FVIO; charge six – stalking)
On 12 March 2024 at approximately 7:30am, AK saw the applicant’s vehicle parked across the road from the family home. The applicant drove away. AK called Triple 0, but changed his mind and hung up.
AK then began driving to work. He noticed the applicant following closely behind him for approximately five minutes. The applicant drove in front of AK on Glen Eira Road, stopped in the middle of the street, exited her vehicle and approached AK’s window, attempting to talk about the children’s schooling. She then got back in her vehicle, moved it into a horizontal position across the road, exited and returned to AK’s vehicle. She attempted to open the driver’s door but it was locked. She returned to her vehicle, drove up the road and stopped at the round-a-bout.
AK U-turned and drove to the Caulfield police station, followed by the applicant. Once there, the applicant did not allow AK to speak to police, instead talking over him and speaking to police about the children’s school fees and court orders. As AK attempted to leave, she stood between him and his car door.
The police followed the parties outside. The applicant got into her vehicle, ignored police directions to stop and drove away. The incident was captured on CCTV.
17 March 2024 (charge three – contravene FVIO)
On 17 March 2024 at around 9:00pm, while AK and the children were at home, the applicant attended the family home and remained inside the property for approximately 10 minutes.
The applicant had returned to the family home with GK, after they had attended a party. AK first saw the applicant outside the upstairs’ bathroom where she asked him if he liked her dress. He ignored her, went to the basement and called Triple 0. The applicant left the address.
19 March 2024 (charge four – contravene FVIO)
On 19 March 2023 at approximately 10:00am, AK and one of the children’s nannies saw the applicant in the garden. AK went upstairs; the applicant followed him and began talking about the children. At 10:30am the applicant left the family home.
Around noon, AK left the house to attend work. At 1:00pm he received a call from the nanny saying that the applicant had returned to the house. He called Triple 0.
At approximately 4:30pm the nanny heard the front door open and shut. The applicant entered the kitchen where the nanny and BK were, and BK introduced the applicant to the nanny. The applicant went outside and looked in the pool. The nanny heard another female voice (BK told the nanny it was the applicant’s cousin). The applicant and her cousin left the house.
At 4:40pm, AK received another call to say the applicant was at the house. AK attended the police station and made a statement.
Informant Gridley matter
On 3 April 2024, the applicant voluntarily attended the Bayside police station by appointment in relation to the informant Dowsett matters. She was arrested and charged. She was deemed unfit for interview by a Forensic Medical Officer and placed in the cells.
Still on 3 April 2024, the applicant was remanded by the Moorabbin Magistrates’ Court and lodged in the Moorabbin police station cells. Sergeant Gridley facilitated a permitted phone call between the applicant and JK. While on the phone the applicant stated “[JK], mummy is in jail because the police have put her here. What I need you to do is call daddy and get him to drop the charges”. The call was immediately terminated by Sergeant Gridley.
The applicant was further charged with one charge of contravening a FVIO.
Procedural history
An application for bail was made on 3 April 2024 in the Moorabbin Magistrates’ Court. The application was adjourned to 4 April 2024 and bail refused.
The matters are next listed for mention on 21 May 2024.
Other outstanding matters
At the time of the alleged offending, the applicant had one outstanding matter for which she was charged on summons. It was alleged that on 23 February 2023, she assaulted her former mother-in-law. The single charge of unlawful assault has now been withdrawn.
The applicant
The applicant is 44 years old. She grew up in Melbourne in a large, extended family. Her father is deceased and her mother passed away in February 2023. The applicant was well educated and attended Mount Scopus Memorial College, obtaining a VCE score in the low 90s. She completed tertiary education in prosthetics and orthotics, and worked as a prosthetist. She also lectured in biomechanics at University level and worked as a sales representative for a large pharmaceutical company.
The applicant met AK, who is six years her senior, when she was 20 years old. They had a brief relationship, which ended but rekindled when the applicant was aged 26. After falling pregnant with the couple’s first child, the applicant ceased employment and further studies. The applicant and AK had six children over a 10 year period.
The applicant is unemployed, but received an inheritance from her late mother, which she uses for everyday life. If granted bail, it is proposed she will reside with her step-father in Doncaster.
Criminal history
There is one prior matter arising from an earlier FVIO, where AK was the protected family member. The applicant slapped him on the forehead in June 2020, breaking his glasses. On 1 July 2020, she took AK’s phone and bit his hand as he attempted to retrieve it.
The applicant was charged with two charges of contravening a FVIO and two charges of unlawful assault. On 20 October 2021, the applicant received a without conviction adjourned undertaking to be of good behaviour for a period of 12 months. The undertaking was not breached.
This is the applicant’s first time in custody.
The legislation
Pursuant to Schedule 2 of the Bail Act 1977 (Vic) (‘Act’), persistent contravention of a family violence intervention order is a Schedule 2 offence.[2] The applicant is required to show that a compelling reason exists that justifies the grant of bail.[3] In considering whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’ including but not limited to those set out in s 3AAA(1) of the Act.
[2]Bail Act 1977 (Vic) Sch 2 Item 19 (‘Bail Act’).
[3]Ibid s 4C.
If satisfied to the requisite standard, the Court must apply the unacceptable risk test.[4] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[5] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[6]
[4]Ibid ss 4A(4), 4D(1)(a).
[5]Ibid s 4E(1)-(2).
[6]Ibid s 4E(3).
Further, s 5AAAA of the Act provides that, in considering the release of the applicant on bail, the Court must:
(a) make inquiries of the prosecutor as to whether there is in force a FVIO, family violence safety notice or recognised domestic violence order made or issued against the applicant; and
(b) in circumstances where the applicant is charged with family violence offences, consider whether — if the applicant were released on bail — there would be a risk that she would commit family violence and, if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a family violence intervention order.
Family violence history and current orders
The family have an alleged history of family violence, with police being contacted or attending the family home on 27 occasions between June 2018 and October 2023. Based on the informant’s summary, AK has complained that the applicant is aggressive, physically violent and verbally abusive towards both him and the children. No charges were laid or briefs prepared as a result of these reports, other than the matters that give rise to the applicant’s criminal history. Some of the allegations were minor in nature and others were proved wrong — for example, in May 2021 AK complained to police that the applicant had stolen his phone, when in fact one of the children had taken it. On another occasion, AK contacted police to report that the applicant had angrily and unsuccessfully tried to snatch a book off him; he told police he was not in fear, and was calling to record the incident only.
There has previously been a FVIO where the applicant was the respondent. This order expired on 2 December 2021[7]. There was also an interim FVIO made on 29 April 2020, where the applicant was the protected family member and AK the respondent. The applicant and AK argued in front of the children about the reading of bedtime stories, and AK struck the applicant on the back of the head with a book. A final FVIO was made on 25 October 2021 and expired on 2 December 2021.
[7]The applicant’s criminal history concerned a breach of this order.
The interim FVIO made on 28 September 2023 was varied on 20 March 2024 and remains in force. The order, as varied, contains ‘full conditions’. The applicant must not contact AK or any of the children by any means; approach them; or go within five metres of AK. She must not go within 200 metres of the family home. The varied interim FVIO was served on the applicant on 3 April 2024 while in custody. The applicant may have contact with the children but only in accordance with Child Protection orders; as I understand matters, she may currently speak with her two eldest children by telephone between 7:00pm and 8:00pm.
Children’s Court history and orders
An affidavit of Cassandra Pollock, Child Protection Practitioner, was tendered by the respondent. The contents, insofar as they concern the behaviours displayed by the children, are disturbing. Given the confidential nature of the material, I will not summarise it in any detail.
Child Protection first became involved with the family around 2020. Protection applications were made and finalised by way of undertakings.
Child Protection next became involved with the family in February 2022, when they issued an emergency protection application. The children have been subject to varying interim accommodation orders since 25 February 2022.
The current interim accommodation order prevents the applicant from attending at the family home unless agreed in writing by Child Protection. She is prohibited from having contact with the children other than Court-ordered contact. There are numerous other conditions governing the conduct of the applicant and AK. The interim accommodation order in relation to DK requires him to live with his paternal grandparents. The applicant may have contact with DK, subject to DK’s wishes. Any contact must be agreed between the applicant and Child Protection, and supervised by Child Protection at their discretion. These interim accommodation orders are listed for a contested hearing on 8 July 2024 with an estimate of 10 days.
On 9 April 2024, Ms Pollock made an application for a FVIO on behalf of DK. DK has alleged that the applicant has attempted to contact him via electronic means and has attended at his school, making him feel unsafe. There is an application only; no interim FVIO was sought or made.
Outstanding allegations
It is alleged that on 4 May 2023, the applicant lodged a child passport application for RK, purportedly signed by the applicant and AK. On 6 May, a passport issued in the name of RK was collected from the Melbourne Passport Office. On 21 June 2023, the applicant lodged four child passport applications for JK, GK, IK and BK, signed by the applicant and AK. The passports issued and were collected by the applicant.
AK alleges he was unaware of the passports and did not sign any of the applications. There is a current investigation and proposed charges pending in relation to the applicant forging AK’s signature to obtain passports for the children. The maximum penalty for making a false statement in relation to an Australian travel document is 10 years imprisonment, 1000 penalty units, or both.[8] A brief of evidence and five charges are awaiting authorisation, pending an interview with the applicant.[9]
[8]Australian Passports Act 2005 (Cth) s 29(1).
[9]Affidavit in Response of Nathan Watt, [26].
In February 2024, the applicant told the Children’s Court that she was not in possession of the passports. She maintains this position. All children are on an Australian Federal Police ‘watch list’ for interstate and international travel.
I note these matters are allegations only, although it is clear that the passports were issued.
The applicant’s evidence
The applicant relies on the affidavit of her instructing solicitor together with all attachments.
An affidavit of Dr ML was tendered. Dr ML is the applicant’s step-father and has known her since her late teens. He resides in Doncaster with the applicant’s brother, who has autism but is high functioning and can live independently. Dr ML has read the remand summary and understands the seriousness of the charges. He works three days per week in a consulting role at different hospitals. If he becomes aware that the applicant is not residing at his address, he will contact police. He will support the applicant, and encourage her to comply with court orders and obtain treatment.
JB, the applicant’s brother-in-law, swore an affidavit stating he supports the application for bail and is prepared to provide a bail guarantee of $200,000 by way of bank cheque. He undertakes to supervise the applicant when she is in his presence, and report any known or suspected breaches of bail to the informant. JB is a lawyer and gave brief evidence this morning. He is married to the applicant’s sister and the applicant frequently spends time with her sister at their home. He has a very good relationship with Dr ML, and will speak with Dr ML in the evening to check the applicant is there. JB will also contact the applicant throughout the day to check up on her when she is not in his presence.
Two psychological reports of Maryam Elyas, Senior Psychologist, dated 17 November 2023 and 10 April 2024 were tendered. Ms Elyas has been treating the applicant since 2023. She has worked co-operatively with Child Protection, including undertaking a ‘Mentalization Behaviour Treatment for Families’ course.
Applicant’s contentions
The applicant relies on the following matters, in combination, to show a compelling reason that justifies the grant of bail.
(a) A term of imprisonment is very unlikely and any time on remand would exceed the applicant’s final sentence, if found guilty of all offences.
(b) The offending is not of the most serious kind; it essentially consists of attending at the family home on three occasions, and following AK in an attempt to discuss the children.
(c) There a triable issues on at least some of the charges.
(d) The respondent relies on past family violence incidents found on the LEAP database. However, the vast majority of those incidents never resulted in briefs of evidence or charges. It is impossible to assess their accuracy and accordingly they should be afforded little weight.
(e) The applicant has a very minor criminal history. She has never been on bail. She was subject to summons at the time of the alleged offending, but the matter that gave rise to the summons has been withdrawn.
(f) There are ongoing Child Protection proceedings, and the applicant will remain subject to the oversight of Child Protection and subject to Children’s Court orders.
(g) The applicant has stable accommodation available which is some distance from the family home.
(h) She has ties to the jurisdiction, family support and a substantial surety available.
(i) The risk of family violence is mitigated by the current interim FVIO and can be further mitigated by strict bail conditions.
(j) The applicant has a complex psychological profile, but has the support of a psychologist who she will continue to attend upon.
The applicant submits that the most significant factor that contributes to finding a ‘compelling reason’ is that the applicant is unlikely to be sentenced to a term of imprisonment if she is found guilty of the outstanding charges.[10]
[10]The applicant referred to and relied upon Re Johnstone (No 2) [2018] VSC 803, [18] per Beach JA.
The applicant submits the real and more complex issue here is the question of unacceptable risk. The applicant accepts there are risks; in particular, the applicant concedes there is a genuine risk that the applicant will reoffend by breaching the interim FVIO, most likely in an attempt to see her children. However, the applicant submits that any risks can be brought to an acceptable level with the imposition of appropriately stringent bail conditions. When considering risk, the unlikelihood of a custodial sentence remains a very powerful factor.[11]
[11]The applicant referred to and relied upon HA v The Queen [2012] VSCA 64.
On the question of risk, the applicant relies on the matters already outlined. Additionally, the applicant has now spent two weeks in custody, and this would have been a salutary experience for a woman experiencing jail for the first time at the age of 44.
The applicant submits she is not a risk of flight, given her priority is her children and they are here. To the extent there is a risk it can readily be made acceptable by a condition that she surrender her passport and not approach points of international departure.
The respondent’s evidence and contentions
The respondent relies on the affidavit of Nathan Watt and the affidavit of Cassandra Pollock, the latter of which has already been referred to above.
The respondent accepts that the applicant has discharged the burden of satisfying the Court that a compelling reason exists that justifies the grant of bail.
The respondent accepts it is unlikely a term of imprisonment would be imposed for the matters for which the applicant seeks bail. However, this is serious example of contravening a FVIO. It occurred in the family home; the offending on 12 March involved following AK in a vehicle for some time; and the applicant was breaching not only the FVIO, but also existing Child Protection orders made by the Children’s Court. The respondent submits the prosecution case is strong.
The respondent submits that even if a compelling reason is established, the applicant is an unacceptable risk of:
(i) Endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means;[12]
[12]Bail Act s 4E(1)(a)(i).
(ii) Interfering with a witness or otherwise obstructing the course of justice;[13] and/or
(iii) Failing to surrender into custody in accordance with the condition of bail.[14]
[13]Ibid s 4E(1)(a)(iii).
[14]Ibid s 4E(1)(a)(iv).
The respondent submits there is a significant risk of ongoing family violence being committed by the applicant. There are ongoing Children’s Court proceedings, and the applicant has contravened earlier interim accommodation orders, resulting in her exclusion from the family home and subsequent tightening of those orders. The combined contraventions of both the interim accommodation orders and the interim FVIO demonstrates a recent and ongoing resolve on the part of the applicant to breach court orders. There are no further conditions, whether attached to a FVIO or bail, that could mitigate the risk of further family violence. The applicant’s conduct puts at risk the safety and welfare of AK and the children.
The respondent sought the views of AK, who ‘expressed his concerns’ regarding the applicant being granted bail. His concerns included her mental state, erratic lifestyle and that she is a flight risk. He is also ‘concerned’ about the proposed bail address, as when the children were missing they had been staying there some of the time.
The respondent submits that while in custody, the applicant made a phone call to JK in front of a police officer to try to get AK to drop the charges. This shows a willingness to use and manipulate the children, a disregard for authority and a preparedness to obstruct or pervert the course of justice.
On 23 March 2024, the applicant sent an email to the Moorabbin Magistrates’ Court and Child Protection indicting that her new address was approximately 350 metres from the family home and in the same street. It appears this is not her intended address, but indicates the applicant’s doggedness in pursuing AK and the children.
The respondent submits that requiring the applicant to engage in psychological treatment will not meaningfully reduce risk, given the applicant has been seeing Ms Elyas for some time but her behaviour appears to be worsening.
The respondent alleges that the applicant is a flight risk. In October 2023 she went to Israel and did not disclose when she would return, finally returning in December 2023. According to Cassandra Pollock, the children were distraught by her absence and the unknown return date. This demonstrates a willingness on the part of the applicant to leave the jurisdiction, regardless of her attachment to her children.
In September or October 2022, the applicant took JK to Bali while he was not in her care and refused to return when directed to. In October 2023, Child Protection became aware of an itinerary detailing travel from Melbourne to Israel for JK. This did not occur, but further evidences the applicant’s disregard for court orders.
On 21 March 2024, the applicant sent a text message to AK stating that the ‘plane leaves at 10:05am need to b[e] there at 9am.’ This message was out of context and Victoria Police believe it is indicative of the applicant’s intention to flee the jurisdiction.
Analysis
Compelling reason
The principles to be applied when considering the compelling reason test are conveniently summarised by the Court of Appeal in Rodgers v The Queen.[15] For an applicant to succeed, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified. It is not necessary to show a reason which is irresistible or exceptional. A compelling reason is one which is forceful, convincing and ‘difficult to resist’.[16]
[15][2019] VSCA 214 at [43].
[16]Re Alsulayhim [2018] VSC 570 at [27]-[28] per Beach JA.
The respondent concedes a compelling reason exists here. That concession, while not determinative of the outcome, is a relevant matter in the applicant’s favour.
The charges faced by the applicant are reasonably serious, but they are not particularly serious examples of the offences in question. The alleged stalking lasted around 30 minutes, maybe less. The alleged breaches of the interim FVIO did not involve physical violence, although the fact that the children were involved elevates their seriousness. On all occasions, the applicant left the family home voluntarily and within a short period of arriving.
In my view, the applicant is most unlikely to receive a term of imprisonment for the offending. This is a very significant factor in the applicant’s favour. As Beach JA stated in Re Johnstone (No 2):
The fact that an applicant for bail might have already spent more time in custody than they are likely to be sentenced to on conviction is a very relevant circumstance in determining whether bail should be granted. Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is a compelling reason justifying a grant of bail.[17]
[17]Re Johnstone [No 2] [2018] VSC 803 at [18].
The applicant has a very limited, albeit relevant, criminal history. She is 44 years old, this is her first time in custody and she has no history of non-compliance with bail (having never been on bail). She has suitable and stable accommodation, poor mental health, no drug or alcohol issues, family support and a substantial bail guarantee available. Overall, I am satisfied that the applicant has shown a compelling reason justifying a grant of bail.
Unacceptable risk
I turn to the question of unacceptable risk. I accept the parties’ submission that risk is the real issue here. I also accept the applicant’s concession, properly made, that she is a genuine risk of reoffending by breaching the interim FVIO, likely in an attempt to see or contact her children. The real question is whether any risk is ‘unacceptable’ in all the circumstances.
Whether the applicant is likely to receive a custodial sentence is a significant consideration when determining whether any risk is unacceptable. If an accused is charged with serious matters and facing a lengthy custodial sentence if convicted, and there is a real risk he or she will deliberately fail to answer bail so as to avoid the consequences of his or her crimes, the risk of failing to answer bail may be unacceptable in all the circumstances. The seriousness of the consequences may also provide an accused with an incentive to flee the jurisdiction, increasing the risk that they will fail to answer their bail. However, if an accused is charged with less serious offending that will not attract an immediate sentence of imprisonment, those matters will ordinarily make it harder for the respondent to establish that any risk is ‘unacceptable’.
Risk of failing to surrender into custody in accordance with the condition of bail
This can be dealt with shortly. In my view, the risk the applicant will fail to answer her bail is not significant and not unacceptable. The applicant did go to Israel in October 2023, but she returned. Based on the material, she is very focussed on her children and having them returned to her. To the extent there is a risk, it can be appropriately mitigated by requiring the applicant to surrender her passport and not apply for others for the duration of the bail.
Risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means, or interfering with a witness or otherwise obstructing the course of justice
It is convenient to consider these risks together, as they overlap.
There is a risk the applicant will breach the interim FVIO that is in place to protect AK and the children. The alleged breaches of the interim FVIO show a persistence and a disregard for court orders, both of which are highly concerning. The applicant’s actions do endanger the safety and welfare of AK and the children, even though, to date, they have not involved actual physical violence. She has shown a willingness to offend literally in front of police, and a willingness to use the children in an attempt to persuade AK to withdraw his complaint.
The risk of breach is increased by the fact that, according to an entry on the most recent interim accommodation order dated 27 March 2024, the two oldest boys JK and GK want to reside with the applicant. If this is accurate, JK and/or GK may seek to contact the applicant outside of what is permitted by Child Protection. However, in my view, the risk of either child doing this provides no basis to remand the applicant in custody.
I treat with considerable caution the material provided in Cassandra Pollock’s affidavit. It consists largely of allegations that are hearsay upon hearsay, untested, unproven and not relevant to the charges before me. It is not my role on a bail application to assess the multiple allegations contained in that material; that will be for the Children’s Court to judge. What is of relevance is the applicant’s repeated breaches of the interim accommodation orders. This shows a further disregard on the part of the applicant for the authority of the courts.
The applicant’s mental health appears to be quite unstable, which makes predicting her future behaviour very difficult. The applicant was assessed by Dr Rakov, psychiatrist, for the purpose of Children’s Court proceedings in 2022. According to Ms Pollock’s summary of Dr Rakov’s findings, the applicant presents with a number of traits consistent with antisocial personality disorder. She displays egotistical and conceited behaviour, a sense of entitlement and a lack of empathy. She also presents with rigidity and deficits in ‘theory of mind’, consistent with Autism Spectrum Disorder. The report of her treater, Ms Elyas, does not contradict these findings, but is more sympathetic and focussed on the applicant’s treatment. Ms Elyas believes she can work with the applicant and improve her mental health, albeit treatment will take time.
Ms Elyas opined that after the applicant returned from overseas (in December 2023), the applicant reported that she had not breached court orders for approximately two or three months, and this was seen as significant progress. I accept the applicant will continue treatment with Ms Elyas, and such treatment can be made a condition of bail. However, the extent to which that will mitigate risk is somewhat doubtful, given the applicant was being treated at the time of the alleged offending. I do accept that Ms Elyas will advise the informant if the applicant fails to attend therapy, and work with Child Protection as required. Positively, the applicant is willing to engage in treatment, and a couple of weeks prior to the her remand, the applicant displayed some insight into her declining mental health and requested more frequent treatment.
The applicant has now experienced jail for the first time at the age of 44, which has likely served as salutary lesson and will go some way to deter her from further offending. Prior to this, the applicant had experienced little by way of consequence for breaching court orders. She should now understand that if she continues to breach court orders, she will find herself returned to custody.
JB was a thoughtful and considered witness. I accept he will actively involve himself, to the extent he is able, in the applicant’s supervision while on bail. The proposed accommodation, together with the support of JB and the applicant’s sister, will go some way to reducing risk. The applicant is close to her sister and JB. In those circumstances, I accept that the substantial surety – which may be lost if the applicant breaches her bail – will also go some way to ensuring the applicant complies with her bail conditions. In combination, Dr ML, JB, and the applicant’s sister do afford a level of protection. They are all in frequent contact, by way of messaging at least, and they will monitor to an extent the applicant’s whereabouts and compliance with bail.
AK has the continued protection of the interim FVIO, augmented by the interim accommodation orders. While breaches are alleged, and a FVIO cannot guarantee a protected person’s safety, in my view the interim FVIO does provide a level of protection. It gives police the power to act if there is an alleged breach, and prohibits conduct that would otherwise be difficult to restrict as it does not necessarily involve committing a criminal offence: for example, driving by the family home.
The question of what constitutes an unacceptable risk is not easily answered. As the Court of Appeal has observed, when considering whether an applicant for bail poses an unacceptable risk in the ways alleged, reasonable minds may well differ on the result.[18] Here, the risk must be sufficient to justify the applicant’s continued detention in custody, in circumstances where the charged offences are highly unlikely to attract a custodial penalty. In making a decision, I must consider the availability of any conditions that may be imposed to mitigate the risk to a level that it is not unacceptable.
[18]Ali El Nasher v DPP [2020] VSCA 144, [51] (Priest, T Forrest and Weinberg JJA).
Strict conditions can be imposed, including reporting to the police station; a curfew; a fixed residential address; attending on Ms Elyas weekly; and surrendering her passport. Further, the proposed bail guarantee is substantial. The available conditions of bail must be viewed in their entirety; while no single condition will mitigate risk to an acceptable level, in combination, the conditions may make any risk tolerable.
In all the circumstances, I am not satisfied that the applicant is an unacceptable risk in the ways alleged by the respondent if she is released on bail with a substantial surety and strict conditions.
Conclusion
The Court is satisfied that a compelling reason exists that justifies the grant of bail and that it has not been shown that the applicant, if released on bail, is an unacceptable risk in any of the ways alleged by the respondent.
The application is granted.
5
0