Re DM
[2024] VSC 559
•10 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0172
| Between: | |
| DM | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
| DATE OF HEARING, ORDERS & ORAL EX TEMPORE REASONS: | 29 July 2024 |
DATE OF WRITTEN REASONS: | 10 September 2024 |
CASE MAY BE CITED AS: | Re DM |
MEDIUM NEUTRAL CITATION: | [2024] VSC 559 |
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CRIMINAL LAW — Application for bail — Applicant seeks bail on single charge of failing to comply with curfew condition of Subclass 070 (Bridging (Removal Pending)) visa (“bridging visa”) — Applicant born in Sudan, fled to Egypt during civil war, and spent ten years in refugee camp — Applicant granted humanitarian visa in 2005, and entered Australia in 2006 — Applicant accrued a significant criminal history in Australia — Applicant’s visa cancelled in 2018 for failing to pass character test — Applicant placed in immigration detention in 2019 — Following decision of the High Court, applicant released from immigration detention in November 2023 — Applicant granted bridging visa with curfew condition and electronic monitoring condition — Applicant allegedly breached curfew condition on 12 May 2024 — No other offending alleged on that occasion — Applicant on four sets of bail for nine charges of breaching curfew condition or electronic monitoring condition of bridging visa over previous month, and charges of possessing weapon and resisting police — Offence carries mandatory prison term for at least one year, but may be suspended on recognisance release order — Prima facie entitled to bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of any person — Alleged offending minor — Preventative detention if not bailed — Bail granted on own undertaking with conditions — Migration Act 1958 (Cth), ss 76C, 76D & 76DA — Crimes Act 1914 (Cth), ss 19AC & 20(1)(b); Bail Act 1977 (Vic), ss 3AAA, 4D & 4E; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; 97 ALJR 1005.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Bhattacharya | Victoria Legal Aid |
| For the Respondent | Ms O Cameron | Director of Public Prosecutions (Cth) |
HIS HONOUR:
Overview
On 29 July 2024, DM,[1] aged 45, applied for bail in this Court. On 15 May 2024, he had been arrested and charged with an offence of failing to comply with a curfew condition of his Subclass 070 (Bridging (Removal Pending)) visa, contrary to s 76C(1) of the Migration Act 1958 (Cth). He was twice refused bail in the Magistrates’ Court. In consequence, by the time of the hearing in this Court, he had been held in custody continuously on this charge for a period of about two‑and‑a‑half months.
[1]The applicant’s name has been anonymised to DM in these reasons so as to avoid frustrating the purposes of s 91X and/or s 501K of the Migration Act 1958 (Cth).
After considering the evidence and submissions before me, I delivered ex tempore reasons, orally, to the effect that I was not satisfied that there is an unacceptable risk that, if bailed, DM would endanger the safety or welfare of any person, whether by committing an offence or by any other means. Accordingly, I ordered that he be released on bail on his own undertaking on a number of conditions.
I promised to deliver more detailed written reasons at a later date. These are those reasons.[2]
[2]I have left the reasons that follow largely in the present tense — as if delivered at the time of the hearing.
Background
DM’s early life[3]
[3]It has been said that DM has given inconsistent versions about parts of his early life. See, e.g., DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1520.
DM was born in Sudan in 1978. He grew up during the Second Sudanese Civil War. Both of his parents were killed in the war. As a result of the conflict, he experienced displacement, violence and poverty.
After finishing school, DM served in the military and was deployed in the Dafur region. At some point, he deserted and fled to Egypt.
DM then spent ten years in a refugee camp. It was there that he met and married his wife, and they had a daughter.
While in Egypt, DM was involved a serious car accident. As a result, he now lives with an acquired brain injury.
DM comes to Australia on humanitarian visa
On 4 September 2005, DM was granted a Sub Class XB200 Humanitarian Visa (“humanitarian visa”) by the Australian Government. He arrived in this country on 30 May 2006 with his wife and their young daughter.
In about 2010, DM and his wife were divorced.
Mental illness
Soon after coming to Australia, DM was diagnosed with schizophrenia. This illness has been a blight on his life. He has been on community treatment orders in the past.[4] According to a Forensicare report before the Court, he had ten community inpatient ward admissions between 2007 and 2017, and five custodial inpatient admissions between 2012 and 2015, including two admissions to Thomas Embling Hospital. In order to treat and control his illness, he now receives anti‑psychotic medication via depot injections every three months.
[4]See the Mental Health and Wellbeing Act 2022 (Vic), especially Part 4.5.
Criminal history
DM has accrued an extensive criminal history while in Australia. He has appeared in court on numerous occasions, resulting in convictions for over 200 offences. He has breached various court orders, including grants of bail, rehabilitative orders such as community correction orders (“CCOs”), and a family violence intervention order (“FVIO”).
The offences of which he has been convicted include shoplifting, theft of motor car, obtaining property by deception, burglary, going equipped to steal, criminal damage, damaging Commonwealth property, possessing and using drugs of dependence, resisting police, possession of controlled weapons, robbery, threatening to kill or to inflict serious injury, unlawful assault, recklessly causing injury, intentionally causing injury, committing an indictable offence while on bail, contravening a family violence safety notice, stalking, and persistent contravention of an FVIO.
The sentences imposed on him have ranged from a good behaviour bond, CCOs and suspended sentences, to immediate terms of imprisonment. The immediate terms of imprisonment have ranged in duration from days measured in single figures, to 14, 17 or 18 days, one month, 42 days, two months, three months, 132 days, six months, and nine months with a non‑parole period of five months,[5] with the longest term being 12 months’ imprisonment with a non‑parole period of four months.
[5]If the LEAP history before the Court is accurate, it seems that this could not have been a lawful sentence, because, for a non‑parole period to be fixed, there must be a sentence of at least 12 months’ imprisonment, and the non‑parole period must be at least six months less than the term of the sentence (see ss 11(2) and (3) of the Sentencing Act 1991 (Vic)).
As is apparent from the terms of the sentencing dispositions as described in DM’s LEAP history, courts, on at least some occasions, have been astute to observe the role mental illness, drug abuse and other possible afflictions have played in his life, in his need for treatment, and in his offending behaviour. Thus, the LEAP history shows that, at least between 2014 and 2018, courts:
a) have recognised so‑called “custody management issues” surrounding his psychiatric illness, and recommendations have been made for “all reasonable assessment and supervision to ensure safe custody”;
b) have imposed “treatment and rehabilitation” conditions regarding “drug abuse or dependency” and “mental health assessment and treatment”;
c) have recognised that he suffers from “paranoid schizophrenia” and “may be psychotic at present”, and have recommended that he “should be seen by a psychiatric nurse”;
d) have recognised that he “may be at risk due to … withdrawal from drug addiction”, has a “diagnosis of schizophrenia”, and “has been on [community treatment orders] in the past”;
e) have recorded that he is “treated at [the] Saltwater Clinic” and have indicated that he “needs anti‑psychotic depot injections every fortnight”;
f) have offered that he “needs assessment by [a] Forensicare nurse and monitoring”;
g) have noted that he has an “undiagnosed disability/illness”;
h) have directed “medical as a conduit to medication and referral to treatment at [the] Saltwater Clinic”, his “CTO [is] to be monitored”, and “random alcohol and drug testing [is] mandated”, and that a “men’s behavioural counselling [is] also required”;
i) have taken note of his “diagnosed paranoid schizophrenia and poly‑substance abuse”;
j) have observed that he “may be at risk due to … psychiatric illness, intellectual disability [and] undiagnosed disability/illness”; and
k) have warned that he “may be at risk due to … withdrawal from drug addiction”, that he may be a “risk of self‑harm”, and has a “psychiatric illness [as to which, see] Forensicare report dated 30 August 2018”.[6]
[6]I have not seen that Forensicare report.
These remarks, and the comparatively minor nature of much of his offending, seem to be reflected in the several rehabilitative dispositions and mostly short terms of imprisonment imposed by the courts.
Cancellation of visa on character grounds
On 21 November 2018, DM’s humanitarian visa was cancelled on the basis that, given his criminal history, he did not satisfy the Minister that he passed the character test.[7]
[7]See s 501 of the Migration Act 1958 (Cth).
At the time of his visa cancellation, DM was serving the 12‑month sentence of imprisonment (with a non‑parole period of four months) that I mentioned earlier, which was imposed in August 2018. On 23 August 2019, at the end of that 12‑month prison sentence, DM was transferred to immigration detention. Thus, it appears that, instead of being granted parole at any point after he became eligible, DM served the whole of his 12‑month sentence in prison.
DM appealed his visa cancellation, but the decision was affirmed by the Administrative Appeals Tribunal (“AAT”) on 25 February 2020.[8]
[8]DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1520. See further below.
Release from immigration detention following decision in NZYQ
On 22 November 2023, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (“NZYQ”),[9] DM was released from immigration detention. This was because, like many others in a similar position, DM was a non‑citizen for whom there was, and continued to be, no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future and who was therefore not capable of being subject to immigration detention under ss 189(1) and 196(1) of the Migration Act.
[9]NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; 97 ALJR 1005 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ).
By the time of his release from immigration detention, DM had spent the past five years and three months continuously in custody — the first year serving the 12‑month sentence of imprisonment imposed in August 2018, and the other four years and three months in immigration detention.
Current bridging visa, its conditions, and offences for breaching those conditions
Following DM’s release, the relevant Minister issued him with a bridging visa. Subsequently, he has been issued with multiple bridging visas. One of those visas was regarded as “jurisdictionally invalid” because it was required to be served on him while he was in detention but was instead served on him while he was in the community. I shall return to the consequences of the latter point shortly.
DM’s current bridging visa — a Subclass 070 (Bridging (Removal Pending)) visa — was issued on 11 April 2024. The conditions of that visa relevantly include that DM must remain at his address between 10:00 p.m. and 6:00 a.m. (“the curfew condition”) and that he must wear an electronic monitoring device at all times (“the EMD condition”). These two conditions are to remain in place for a period of 12 months from the date of the granting of the bridging visa.[10]
[10]See r 2.25AE of the Migration Regulations 1994 (Cth).
A failure to comply with these conditions without a reasonable excuse amounts to an indictable offence against s 76C (in the case of a breach of the curfew condition) and s 76D (in the case of a breach of the EMD condition) of the Migration Act.[11] Each offence carries a maximum penalty of five years’ imprisonment,[12] with a mandatory sentence of imprisonment of at least one year.[13] However, as will be seen later, any such sentence may be suspended wholly or in part by way of a recognisance release order.[14]
[11]Strictly speaking, s 76C(1) is the offence provision concerning the curfew, whereas ss 76D(1), (2) and (3) create three different offences concerning a failure to do any of the following things with respect to an electronic monitoring device (“EMD”): wearing an EMD (s 76D(1)), allowing an authorised officer to fit, install, repair or remove an EMD (s 76D(2)), and taking of specified steps, or any other reasonable steps, to ensure that the EMD remains in good working order.
[12]See ss 76C(1) and 76D(1) of the Migration Act 1958 (Cth).
[13]See s 76DA of the Migration Act 1958 (Cth).
[14]See ss 19AC and 20(1)(b) of the Crimes Act 1914 (Cth).
Other outstanding charges
In the month following the grant of his current bridging visa and prior to the laying of the charge on which he seeks bail, DM was charged with seven instances of failing to comply with the curfew condition of his bridging visa, and two instances of failing to comply with his EMD condition, across three separate occasions. Other charges of a different nature were laid on a fourth occasion. None of those charges has been determined yet.
The first occasion concerned two charges — one of breaching his curfew condition on 16 April 2024, and another of breaching his EMD condition on 18 April 2024 (by allowing his electronic monitoring device to go flat). He was arrested and charged with those two offences on 18 April 2024, and released on bail the same day.
The second occasion concerned four charges — three of breaching his curfew condition on 20, 23 and 27 April 2024, and one of breaching his EMD condition on 29 April 2024 (by failing to maintain the battery on his electronic monitoring device). He was arrested and charged with these four offences on 29 April 2024, and released on bail on 30 April 2024.
The third occasion concerned three charges of breaching his curfew condition on 30 April and 1 and 2 May 2024. He was arrested and charged with these three offences on 3 May 2024, and bailed the same day.
The fourth occasion concerned two charges of assaulting an emergency worker,[15] two charges of resisting an emergency worker,[16] one charge of theft[17] and one charge of possessing a dangerous article (viz, a knife) in a licensed place.[18] These charges relate to an incident on 21 April 2024. It is not alleged that DM used the weapon in any way. Rather, the knife was simply noticed by police in his pocket, and is said to have been held in his hand when inside a supermarket, and was discarded by him at some point during the attempted arrest. While charges of assaulting police have been laid, on my reading of them, the accounts in the statements of the police officers involved in his arrest do not appear to amount to any actual assault. DM is on bail for these matters as well.
[15]See s 31(1)(b) of the Crimes Act 1958 (Vic).
[16]See s 51(2) of the Summary Offences Act 1966 (Vic).
[17]See s 74 of the Crimes Act 1958 (Vic).
[18]See s 7(1A) of the Control of Weapons Act 1990 (Vic).
Alleged offending giving rise to charge on which bail is sought
I turn now to the alleged offending giving rise to the charge on which DM seeks bail.
It is alleged that, on 12 May 2024, at about 9:15 a.m., DM left his address in Doveton and travelled to Footscray. In breach of his curfew condition on his bridging visa, he did not return to his address in Doveton either that evening or before 6:00 a.m. the next day.
At about 12:28 p.m. on 15 May 2024, DM was arrested in Footscray and charged with breaching the curfew condition of his bridging visa.
Previous bail applications
On 15 May 2024, DM was refused bail on the current charge in the Melbourne Magistrates’ Court. The magistrate accepted there was an unacceptable risk that, if bailed, he would endanger the safety or welfare of any person and would fail to appear at court.[19]
[19]Order of Magistrates’ Court at Melbourne refusing bail dated 15 May 2024.
On 12 June 2024, DM was again refused bail in the Melbourne Magistrates’ Court, this time on the sole basis that there was an unacceptable risk of endangering the safety or welfare of any person.[20]
Other evidence
[20]Order of Magistrates’ Court at Melbourne refusing bail dated 12 June 2024.
High Court challenge to validity of curfew and EMD conditions
In addition to the summary set out earlier, I was told of, or there was evidence before me of, the following considerations, commencing with a relevant matter currently before the High Court.
In that matter, known as YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor, the plaintiff challenges the validity of curfew and electronic monitoring conditions imposed on a bridging visa like DM’s as being punitive and therefore contrary to Chapter III of the Constitution.[21] On 22 May 2024, Beech‑Jones J referred the questions of law stated in the special case in that matter to the Full Court. The matter is set for hearing on 6 August 2024.[22]
[21]See YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (High Court of Australia, S27/2024) (“YBFZ”).
[22]I note that, since I granted bail, YBFZ was heard by the High Court on 6 August 2024, and judgment was reserved (see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCATrans 47).
While the special case does not directly involve DM, should the High Court find that those conditions are invalid, the current charge before this Court would fall away, as would his other charges of the same kind.
Judicial review
I was also told of a judicial review proceeding that had been commenced in this Court that involves DM but does not yet have a hearing date. As I understand it, it will be contended that the Minister did not comply with the legislative requirements before issuing DM’s bridging visa and that the Minister was therefore acting ultra vires. If the Court were to accept this argument, presumably the current charge, and all other charges of a similar kind faced by DM, would fall away.
AAT decision
I was handed a copy of the AAT’s reasons for decision on DM’s appeal against the cancellation of his humanitarian visa on character grounds.[23] The Minister’s decision was affirmed. The AAT member found that the primary consideration of the protection of the Australian community outweighed all other considerations in DM’s favour, including harm and hardship to him, the strength, nature and duration of his ties to Australia, and the best interests of his then 17‑year‑old‑daughter.[24]
[23]DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1520 (“DBKX”).
[24]DBKX at [187]‑[191].
Other charges withdrawn
I was also told that, since his release from immigration detention, DM has had other sets of charges either determined or withdrawn after substantial periods spent in custody.
First, on 6 December 2023, DM was arrested and charged with breaching a condition of his bridging visa, as well as theft. He spent 38 days in custody before being bailed on those charges on 12 January 2024.
Second, on 29 January 2024, he was charged with two further instances of breaching his bridging visa and, in consequence, two charges of committing an indictable offence while on bail. He spent another 33 days in custody before being released on 13 March 2024. For, on that day, following advice from the Australian Government Solicitor that DM’s bridging visa was likely to be “jurisdictionally invalid”, the Commonwealth Director of Public Prosecutions withdrew all charges in relation to his bridging visa.
Third, on the same day (13 March 2024), DM was placed on a good behaviour bond for the theft and two instances of damaging Commonwealth property.
Fourth, on 19 March 2024, DM was arrested and held in custody on various harassment and threats charges concerning his (now) adult daughter and her infant child. The charges were ultimately withdrawn 20 days later, and DM was released from custody on 8 April 2024. At the hearing before me, an email from the prosecution was put into evidence, which explained that, because of the data obtained from the complainant’s telephone and DM’s electronic monitoring device, the allegations were demonstrably false. Nevertheless, on 17 April 2024, DM’s daughter obtained a FVIO for two years against him.
Finally, on my calculations, DM has spent in the order of 91 days[25] (or about three months) in custody for charges that were ultimately withdrawn. I shall return to this consideration later in these reasons.
[25]The three relevant periods mentioned above are 38 days, 33 days and 20 days, which totals 94 days.
Applicable test for bail
There is no dispute that, on this application, DM is entitled to bail unless the prosecution satisfies the Court that there is an unacceptable risk that, if released on bail, he would endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means.[26]
[26]See ss 4, 4D(b) and 4E(1)(a)(i) of the Bail Act 1977 (Vic). There is no assertion that any other of the specified risks in s 4E(1)(a)(ii) or (iv) are present.
In considering the unacceptable risk test, the Court must take into account the “surrounding circumstances” listed in s 3AAA of the Bail Act 1977 (Vic), which in this case include at least the following matters:[27]
[27]See ss 3AAA, 4C(3) and 4E(3)(a) of the Bail Act 1977 (Vic).
a)whether, if the accused were found guilty of the offence or offences charged, it is likely that he would be sentenced to a term of imprisonment and, if so, whether the time he would spend remanded in custody if bail is refused would exceed that term of imprisonment;
b)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
c)the strength of the prosecution case;
d)the accused’s criminal history;
e)the extent to which the accused has complied with the conditions of any earlier grant of bail;
f)whether, at the time of the alleged offending, the accused was on bail for another offence;
g)whether there is in force a family violence intervention order made against the accused;
h)the accused’s personal circumstances and background, including his criminal history;
i)any special vulnerability of the accused, including experiencing any ill health, including mental illness, or having a disability, including physical disability, intellectual disability and cognitive impairment;
j)the length of time the accused is likely to spend in custody if bail is refused; and
k)the likely sentence to be imposed should the accused be found guilty of the offences charged.
In considering whether a risk of the kind alleged is an unacceptable risk, the Court must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[28]
Whether unacceptable risk if bailed
[28]See s 4E(3)(b) of the Bail Act 1977 (Vic).
Applicant’s submissions
Mr Bhattacharya, who appears for DM, supplemented his helpful written submissions with targeted oral submissions.
He submits that, while there is some risk of the kind asserted, that risk does not rise to an unacceptable level and, in any event, it is sufficiently mitigated by the supports available and the bail conditions proposed so as to render it an acceptable risk.
Mr Bhattacharya fairly concedes that the risk associated with DM being granted bail can be found in his criminal history as a whole, the number of times he has allegedly breached his visa conditions, the allegations of continued drug use and abusive conduct when dealing with the police, the allegation of poor conduct while in immigration detention, the allegation of possession of a weapon in a public place, and the consideration that he was on four sets of bail when the current offence was allegedly committed. However, he submits that, when all matters are considered, it can be seen that the risk DM presents does not reach the level of being unacceptable.
First, Mr Bhattacharya points out, correctly, that the Bail Act is no longer concerned with unacceptable risk of offending per se, but with the risk of endangering any person, whether by committing an offence or by any other means. It is in that context, he submits, that it is important to recognise that, in respect of the single charge of breaching his curfew, there was no concomitant offence against any member of the public. Further, there are no such allegations in respect of the other charges concerning breaches of the curfew and the EMD condition (perhaps apart from suspicion of illicit drug use).
Second, Mr Bhattacharya submits DM has access to numerous support services in the community which mitigate his risk of reoffending — and thereby potentially presenting any danger to others — in circumstances of either deteriorating mental health or illicit drug use. These services include support through Life Without Barriers, Foundation House (a support service for people who have experienced torture), the Asylum Seeker Resource Centre, and Health Works (Co‑Health), as well as through receipt of payments through Services Australia. Additionally, DM receives depot injections every three months for his schizophrenia, and, as Mr Bhattacharya points out, he has been compliant with that medication regime.
Third, Mr Bhattacharya submits that any risk is mitigated by the extensive monitoring to which DM is subject through his visa conditions. Among other things, this monitoring involves DM wearing and maintaining an electronic monitoring device which tracks his location at all times. Further, notwithstanding the current charge the subject of this application, and the several others of the same nature he is facing, his bridging visa still contains a curfew condition.
Fourth, and related to the last point, Mr Bhattacharya submits that there will be concerted efforts by Life Without Barriers to obtain accommodation for DM in Footscray so that he is near his community. Footscray is where DM has been tracked when not returning to his home during these alleged breaches. This, then, he submits, would mitigate any risk of DM travelling to Footscray (from Doveton) and not returning to his home within his curfew hours.
Fifth, Mr Bhattacharya submits that there is no specific risk presented by DM to his daughter and granddaughter. He submits that there cannot be any reliance on the charged incidents concerning threats and harassment from earlier this year given that those charges have been withdrawn. This charged breach of curfew, and the others, do not come with allegations of any form of violence, whether threatened or actual.
Sixth, Mr Bhattacharya submits that DM would ultimately not receive a term of imprisonment to be served immediately if convicted of the offence charged, and therefore every day he is remanded in custody is an additional day more than any sentence he might receive. While there is a mandatory term of one year’s imprisonment attached to the offence alleged in the charge,[29] Mr Bhattacharya submits that it would be well open to the sentencing court to suspend any prison sentence wholly by releasing DM on a recognisance release order.[30]
[29]See s 76DA of the Migration Act 1958 (Cth). See further below.
[30]See ss 19AC and 20(1)(b) of Crimes Act 1914 (Cth). See further below.
This is particularly so, Mr Bhattacharya submits, where, while the conduct itself is not in dispute, there is likely to be a significant delay occasioned in this matter while awaiting the outcomes of both the judicial review matter and the High Court challenge. Realistically, these matters are unlikely to conclude within the next few months. It follows that, if not bailed now, DM would end up spending many months on remand for a matter in respect of which, upon conviction, it would be both well open to a sentencing court to suspend any immediate term of imprisonment by way of a recognisance release order, and indeed surprising if that were not the type of sentence ultimately imposed.
Respondent’s submissions
Ms Cameron, who appears for the Director, submits that DM presents an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence or by any other means. In support of this submission, Ms Cameron relies on, among other things, the following considerations.
First, Ms Cameron submits that DM has been deemed an unacceptable risk to the Australian community by the Minister, that decision being affirmed by the AAT. As a result, his humanitarian visa has been cancelled and conditions have been imposed on his bridging visa. It follows, Ms Cameron submits, that the starting point is that the risk DM poses is very high.
Ms Cameron submits that this high risk comes from DM’s substantial criminal history. In this regard, Ms Cameron referred to the AAT member’s reasoning that imprisonment had not deterred DM from committing further offences.[31]
[31]DBKX at [96].
In addition to this criminal history, Ms Cameron points to the 52 incidents recorded from DM’s time in immigration detention. These incidents include one major assault, 15 minor assaults, four instances of abusive or aggressive behaviour, and a number of instances of property damage.
Ms Cameron also points to the decision of the Community Protection Board, which advised the Minister that the additional conditions of electronic monitoring and a curfew were necessary conditions of his bridging visa in order to protect the Australian community. Of the 153 people placed on the same type of visa following NZYQ, only 76 were given electronic monitoring conditions and only 65 were given curfew conditions. This, Ms Cameron submits, demonstrates the level of risk DM is thought to pose to the safety or welfare of others.
Second, Ms Cameron submits that the risk DM poses is unacceptable because of his grave disregard for any conditions imposed upon him. This disregard is demonstrated, in her submission, by the ten alleged breaches of his visa conditions in a four‑week period. In addition, in her submission, the charged offences from the incidents on 21 April 2024 demonstrate the kind of risk that is posed should his curfew condition be breached. Those alleged offences involved DM, in what may be a drug‑affected state,[32] stealing, carrying a knife in a public place, including in a shopping centre and a “pokies” room, and ignoring police commands, all of which occurred while he was on three sets of bail for charges of breaching his visa conditions.
[32]Or perhaps it may be a manifestation of his mental illness, or both, or neither.
Third, Ms Cameron submits that the legislature has deemed that the offence of breaching a condition of a visa of the kind to which DM is subject is a serious offence. This is demonstrated by the one‑year mandatory minimum term of imprisonment to be imposed for such an offence. Ms Cameron submits that, in considering the cumulative effect of continual breaches of visa conditions and the mandatory minimum sentence, it would not be a foregone conclusion that any sentencing court would impose a recognisance release order that had the effect of wholly suspending the total sentence. That said, Ms Cameron could not indicate what term of immediate imprisonment might be imposed.
Fourth, Ms Cameron submits that DM has shown specific disregard for bail conditions in the past. Counsel referred to roughly ten breaches of bail contained in his criminal history to demonstrate this.
Fifth, Ms Cameron submits that the prosecution case against DM is strong. While she concedes that the High Court challenge and the judicial review matter are relevant circumstances to take into account, she submits that they do not go to the strength of the case, and that it must be assumed that the making of the visa and its conditions are valid.
Finally, Ms Cameron submits that, when determining what is an unacceptable risk, it is relevant to take into account that the Australian community expects non‑citizens to obey Australian laws while in this country.[33] This, she submits, is relevant in determining what risk the community would regard as unacceptable when considering bail for DM.
[33]In this regard, counsel referred to the following document: Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 110: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (7 June 2024), at [8.5.1].
Consideration
The onus is on the Director to satisfy the Court that, were DM granted bail, there would be an unacceptable risk that he would endanger the safety or welfare of any person, whether by committing an offence that has that effect or by any other means.
However, essentially for the reasons advanced by Mr Bhattacharya, and notwithstanding the submissions of Ms Cameron, I am not satisfied the Director has discharged this onus. I shall not repeat those arguments here. I wish to add only the following points.
Sections 76C and 76D were inserted into the Migration Act following the High Court’s decision in NZYQ.[34] In the Explanatory Memorandum that accompanied the Bill that became the Act that introduced these provisions, the rationale for these new offences was explained in this way:[35]
The Bill will establish new criminal offence provisions, in relation to certain conduct by non‑citizens in the NZYQ‑affected cohort that constitutes a serious breach of visa conditions, relating to the failure to comply with certain requirements to notify [and] report to the Minister or the Department, where required to do so under certain mandatory conditions imposed on the BVR [Subclass 070 (Bridging (Removal Pending)) visa]. These offences are vital to ensuring that non‑citizens in the NZYQ‑affected cohort remain appropriately engaged with the Department and the Australian Border Force, and cooperate in arrangements to facilitate their removal from Australia.
The new offence provisions [will] provide a proportionate response in order to effect re‑engagement of the non‑citizen with the Department. Attempts to deliberately and repeatedly evade contact with, and monitoring by, the Department of Home Affairs demonstrates a disregard and contempt for Australian laws. This behaviour is contrary to the Australian Community’s expectations that a non‑citizen abide by Australia’s laws and that non‑citizens will engage with the Department to resolve their migration status.
A criminal offence is the most effective means of response to potential serious breaches of visa conditions within the NZYQ‑affected cohort, because it is clear that the normal consequences of breaching visa conditions will not apply to this cohort.
Ordinarily, a visa holder who does not comply with a condition of their visa may be considered for visa cancellation on the basis of that breach — and if cancelled, would be liable to be detained as an unlawful non‑citizen. For the NZYQ‑affected cohort, immigration detention is not an available option where visa cancellation results in them being an unlawful non‑citizen. As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non‑compliance with reporting requirements. Establishing an offence specifically for NZYQ‑affected BVR holders and future BVR holders granted without application by the Minister, makes it clear that compliance with requirements to report to the Department and to notify the Department of changes in circumstances, including address, household, employment and other matters ensures the person remains engaged with the Department. Importantly, the offence encourages compliance with relevant visa conditions and ongoing cooperation in arrangements relating to removal from Australia.
[34]The offence in s 76B was also introduced into the Migration Act at the same time. A little later, further offence provisions were added in ss 76DAA, 76DAB and 76DAC. See below.
[35]Explanatory Memorandum to the Migration Amendment (Bridging Visa Conditions) Bill 2023, p 4.
Thus, put shortly, the perceived need for the creation of the offences like those contained in ss 76C and 76D was to effect a form of deterrence. More fully, in the absence of the prospect of immigration detention as an unlawful non‑citizen resulting from visa cancellation upon a breach of visa condition, such offences were thought to be required to function as a deterrent to those in the NZYQ‑affected cohort who might breach conditions of their bridging visas.
Later in the Explanatory Memorandum, this was said about the maximum penalty (of five years’ imprisonment) for the new offences:[36]
[52] The significant maximum penalty imposed ensures that the Court has the appropriate discretion to be able to hand down adequate penalties where the material circumstances provide a clear need to do so with regard to all the relevant circumstances.
[53] In reaching a decision, it is open to the Court to take into account a wide range of factors, both [aggravating] and mitigating, to inform its view. Factors such as nature and severity of the non‑compliance, how much time has passed since the reporting requirement was issued, repeated breach of visa conditions, degree of contact with the Department, and the degree of steps taken to remediate non‑compliance, or ensure future compliance with the requirement, are examples of factors that the Court may wish to take into consideration. It is a matter for the Court to consider the appropriate penalty after a finding of guilt.
[36]Schedule 1 of the Explanatory Memorandum to the Migration Amendment (Bridging Visa Conditions) Bill 2023, pp 13[52]‑14[53].
Section 76DA is the provision that, upon conviction of an offence against s 76C or s 76D (or other provisions), compels a court to impose a sentence of at least one year’s imprisonment.[37] This provision was not in the original Bill, and was not mentioned in the accompanying Explanatory Memorandum or the Supplementary Explanatory Memorandum. It was added after an amendment was proposed during the legislative process, but does not appear to have been explained in parliamentary documents of the latter type at that time.[38]
[37]Section 76DA provides that the mandatory sentence of at least one year’s imprisonment applies to offences against s 76B (which was inserted into the Migration Act at the same time as ss 76C and 76D) and those against ss 76DAA, 76DAB and 76DAC, which were inserted a little later. See below.
[38]However, the proposed s 76DA was discussed, albeit briefly, in the Senate and even more briefly in the House of Representatives (see Senate, Official Hansard, 16 November 2023, at, e.g., pp 5782 (Senator Bragg), 5802 (Senator Wong), 5803 (Senator Hanson‑Young), 5811 (Senator McKim), 5827‑5828 (Senator Shoebridge), 5832 (Senator Cash), 5833 (Senator McKim), 5835 (Senator Paterson), 5842 (Senator Watt) and 5852 (the vote); and see House of Representatives, Official Hansard, 16 November 2023, at, e.g., pp 8365 (Mr Marles), 8395 (upon consideration of Senate amendments, Mr Giles) and 8397 (Mr Bandt and the vote)).
Subsequently, however, the legislature created further offences applicable to the NZYQ‑cohort by inserting new ss 76DAA, 76DAB and 76DAC into the Migration Act. The offences in those provisions capture breaches of visa conditions concerning performance of prohibited work connected with minors (s 76DAA), being within a particular distance of a school, childcare centre or day care centre (s 76DAB), and contacting the visa holder’s victim of an offence involving violence or sexual assault (s 76DAC). Section 76DA was amended so as to provide that those new offences would also attract the mandatory one‑year prison sentence upon conviction. In the Explanatory Memorandum that accompanied the Bill that became the Act that introduced these new or amended provisions, the rationale for the mandatory one‑year prison sentence was explained in this way:[39]
If convicted of one of these offences, the court must impose a sentence of imprisonment of at least one year (as a result of amendments proposed to section 76DA of the Migration Act). This mandatory minimum sentence if convicted following a fair hearing before a court reflects the seriousness of the offending and the need to protect community safety and the most vulnerable members of Australian society.
By applying to those individuals with a history of criminal offences involving minors, vulnerable people or sexual assault, these offences are targeted towards those who pose the most risk to [the] Australian community. The particular conduct engaged in by breaching these [provisions] puts at risk the most vulnerable members of society and disregards community expectations about the protection of especially vulnerable members of society.
[39]Explanatory Memorandum to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, p 21.
It may be one thing to provide for a mandatory sentence of at least a year’s imprisonment for offences against ss 76DAA, 76DAB and 76DAC. For, as was said in the last passage of the extract from the Explanatory Memorandum, “[the] particular conduct engaged in by [committing these offences] puts at risk the most vulnerable members of society and disregards community expectations about the protection of especially vulnerable members of society”. But it is entirely another thing to fix such a mandatory sentence for the much less serious offending involved in merely breaching a curfew condition or an EMD condition in the ways alleged against DM.
It will be remembered that these amendments to the Migration Act were made by the legislature very quickly in the wake of the decision in NZYQ. It may well be that, in the hurly burly of the times, it was not fully understood that there might be comparatively minor offences of breaching a curfew or an EMD condition that should not attract a mandatory sentence of at least a year’s imprisonment but that, by operation of s 76DA, must still do so.
Whether or not this was appreciated, it is plain that any such mandatory term or terms of imprisonment may be suspended by operation of the recognisance release order provisions.[40]
[40]Provided the sentence, or the sentences in the aggregate, do not exceed three years’ imprisonment. See ss 19AC and 20(1)(b) of Crimes Act 1914 (Cth); and see below.
I shall return to the latter point in a moment. For now, having set out that legislative history, I wish to turn to the major factors that inform my lack of satisfaction that, if he were bailed, DM would endanger the safety or welfare of any person, whether by committing offence or by any other means.
First, in my judgment, any risk posed by DM is not unacceptable given the nature of the allegation in the single charge before me. There is simply no suggestion that DM posed any danger to the public or anyone in particular by breaching his curfew on this occasion. Nor, for that matter, does there appear to be any equivalent assertion on any of the previous occasions on which he is said to have breached his curfew or failed to keep his electronic monitoring device adequately charged, except perhaps for a suggestion that he might have been drug‑affected.
Second, whether the asserted risk is unacceptable must be considered against the reality that, if DM were found guilty of, or he pleaded guilty to, the offence charged, as well as the other nine charges of a similar type he faces, it is all but certain that the period spent on remand would exceed any immediate prison sentence imposed upon him, if he were not bailed now. Let me explain.
As we have seen, the legislature has seen fit to fix a mandatory penalty of at least one year’s imprisonment for an offence as minor as merely breaching a curfew condition of a bridging visa — that condition being imposed by the Minister upon the advice of the Community Protection Board — but the same legislature has not interfered with a court’s discretion to fix a recognisance release order in respect of such a sentence. While the idea that a mandatory one year’s imprisonment for such an offence seems to do away with the fundamental notions of proportionality and parsimony, at least those principles may come to the rescue when considering a recognisance release order. For there is no restriction on the application of the recognisance release order provisions with respect to sentences of imprisonment imposed for offences against either s 76C or s 76D of the Migration Act.
Put shortly, s 19AC of the Crimes Act 1914 (Cth) provides that, if a person is convicted of one or more federal offences at the same sitting, and provided that the prison sentence or sentences in the aggregate do not exceed three years, the court must make a single recognisance release order. Section 20(1)(b)(i) of the Crimes Act provides that, in that event, the court “may, if it thinks fit, … direct, by order, that the person be released … either immediately or after the person has served a specified period of imprisonment …”.[41]
[41]My emphasis in italics.
Turning to the circumstances of DM’s case, I would be very surprised if any court did not think it fit to exercise the discretion given under the recognisance release order provisions to suspend — and to suspend wholly, not partly — any mandatory prison sentence imposed for the single alleged breach of his curfew condition that is the subject of his application for bail. Why? Because, notwithstanding his criminal history, the fact that the offence (if committed) was committed while on bail, and any other matters to be put in aggravation against him, that alleged offence is simply not serious enough to warrant any different course.
In those circumstances, despite the risk the Director asserts DM presents, it would be unacceptable to keep him in custody beyond the period that the law would be likely to require by way of an immediate prison sentence upon conviction of the charged offence — which period is nil. This is because to do so would amount to a form of preventative detention, a concept which, sensibly and humanely, is (for the most part) quite foreign to our criminal justice system.
Given, then, that any time already spent on remand on the current charge in all likelihood has amounted to preventative detention, and given that any further time on remand is nigh on certain only to compound that effect, the risk of endangering the safety or welfare of any person, if DM were bailed, could not be said to be unacceptable. Put another way, it would be unacceptable to keep a person on remand for a period of months for a charged offence that in all likelihood, notwithstanding the imposition of a mandatory sentence of one year’s imprisonment upon conviction, would not lead to any term of imprisonment actually to be served. At this stage, DM has already spent two‑and‑a‑half months on remand on this single charge, which, on the foregoing analysis and in my judgment, is two‑and‑a‑half months too long.
While they are greater in number, I take the same view of the likely sentences for the other charges of breaching his curfew condition and his EMD condition, and in respect of which he is currently on bail. None of these alleged breaches, whether considered alone or in combination, is serious enough to warrant a court declining to exercise the discretion to suspend any mandatory term or terms of imprisonment imposed for those alleged offences. Thus, I think that the same (or a similar) disposition is likely to be imposed upon the determination of the other charges.
In any event, it strikes me as telling that the Director has not sought to appeal one or more of the previous decisions to grant bail or to apply to revoke bail on those other charges. For, if immediate imprisonment for at least 12 months were all but inevitable upon conviction on the offences alleged in those charges (or at least some of them), then it might be thought that, given DM’s criminal history and other matters adverse to him urged on this application, the Director would have a strong argument for appealing those decisions to grant bail on the other charges or to apply to revoke those grants of bail upon DM’s being charged a fourth time with an offence of that type. But no such appeal has been launched and no such application to revoke bail has been made. And that is understandable, because the premise for taking either course is defeated by the reality that wholly suspended sentences of imprisonment are ever so likely to be imposed upon any conviction.
Thirdly, even if I am wildly wrong in concluding that it is likely that, if convicted of all of the outstanding charges of breaching his bridging visa conditions, DM would receive a wholly suspended sentence of imprisonment by way of a recognisance release order, there are two factors that still compel the view that to deny him bail now would amount to preventative detention, and would therefore be inappropriate.
The first factor is that DM has already spent two‑and‑a‑half months on remand, which would count as pre‑sentence detention upon any sentence of imprisonment for these alleged offences. In my view, if a sentencing court were minded to suspend, say, a mandatory 12‑month sentence only in part, then it would be hard to see how the same court could reasonably require DM to serve any more immediate custody than the two‑and‑a‑half months he has already spent on remand.
The second factor is this. In accordance with the principles discussed in R v Renzella,[42] a court would also be required to take into account, in the exercise of the sentencing discretion, the fact that DM has spent as much as three months of “dead time” in custody for charges that have been withdrawn. This consideration is likely to impact on the decision whether to suspend the sentence wholly or in part and, if in part, how much of the sentence should be suspended.[43]
[42]R v Renzella [1997] 2 VR 88 at 98 (per Winneke P, Chales and Callaway JJA).
[43]This assumes that none of the three months of dead time was taken into account when DM was sentenced on 13 March 2024, for this consideration may come into play only the once, and should ordinarily be taken into account at the first opportunity (see R v Renzella [1997] 2 VR 88 at 99).
Thus, either way, there is a very high likelihood that to deny DM bail now would be to cause him to be held on remand for a period in excess of any sentence of imprisonment actually to be served were he convicted of the offences alleged in his outstanding charges, and thereby would still amount to preventative detention.
Finally, I am also persuaded that the conditions of bail proposed by Mr Bhattacharya, and which I shall impose, go to mitigating any risk that might otherwise exist.
As will be seen, for example, one of those conditions requires that DM obey all lawful directions given by psychiatrists at the Saltwater Clinic. As Mr Bhattacharya explained, DM has not been required to be an involuntary patient since 2018. The health system in this State is apparently satisfied that DM will continue to comply voluntarily with his depot injections, which he receives at the Saltwater Clinic in Footscray. He has been compliant with that medication regime for some time. That said, that there will be a bail condition requiring him to obey the lawful directions given by psychiatrists at the Saltwater Clinic adds an extra layer of protection should the need for different treatment arise.
Another example concerns the condition requiring DM to attend an appointment at Health Works on 31 July 2024, and to accept all lawful treatment recommendations made by Health Works. That organisation provides a range of specialised services for those struggling with drug addiction or drug problems. This condition is designed to mitigate the risk presented by DM’s history of illicit drug use.
And so it is that, for the foregoing reasons, including the matters urged by Mr Bhattacharya, I am not satisfied that there is an unacceptable risk that DM would, if released on bail, endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means.
Conclusion and order
It follows that the application for bail must be granted.
DM will be admitted to bail on his own undertaking and on the following conditions:
(a) DM is to reside at accommodation provided by Life Without Barriers;
(b) DM is to obey all lawful directions given by psychiatrists at the Saltwater Clinic;
(c) DM is to attend an appointment at Health Works on 31 July 2024 and accept all lawful treatment recommendations made by Health Works; and
(d) DM is to appear at the Melbourne Magistrates’ Court for mention at 9:30 a.m. on 20 August 2024, and thereafter as directed by that court.
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