Re Dole
[2022] VSC 560
•16 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0224
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an Application for Bail by MARK DOLE
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| JUDGE: | Fox J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2022 |
| DATE OF DECISION: | 16 September 2022 |
| CASE MAY BE CITED AS: | Re Dole |
| MEDIUM NEUTRAL CITATION: | [2022] VSC 560 |
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CRIMINAL LAW — Bail application — Applicant charged with Schedule 2 offences while on summons for Schedule 2 offences — Exceptional circumstances test — Alleged offending at lower end of range of seriousness — Delay — Likelihood that applicant’s time on remand would exceed length of any sentence — Exceptional circumstances established by a combination of factors — Unacceptable risk alleged — Risk not unacceptable if granted bail with conditions — Bail granted — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Goodenough | Chester Metcalfe & Co |
| For the Respondent | Ms D Pastoors | Victoria Police |
HER HONOUR:
Mark Dole applies for bail on charges of theft of motor vehicle, negligently deal with proceeds of crime, commit indictable offence while on bail and possess drug of dependence.
It is common ground that the applicant must show exceptional circumstances justifying his release on bail.
The offending
On 22 July 2022, a black Porsche Macan bearing registration BLQ 407 and said to be valued at $100,000 was stolen from Anderson Street, West Melbourne.
On 9 August 2022, security staff at Northland Shopping Centre alerted police to a black Porsche Macan, bearing registration BUW 204, parked in the carpark. Security staff used CCTV to track the applicant and his three co-accused from the vehicle to a JB Hi-Fi store, where they were apprehended by police. The applicant was searched. Police located 11 Xanax tablets and 8 Serapax tablets in his possession.
The applicant was interviewed and told police he had known the driver of the Porsche, Jesse Curtin (‘Curtin’), for approximately four months, and presumed he was a stockbroker based on how he dressed. He reported being at Curtin’s residence and in the Porsche several times over the past month. On the date of his arrest, the applicant said Curtin had arrived at his residence to drive him to Northland. He had travelled there in the rear passenger seat of the vehicle. The applicant told police that he had a prescription for the Serapax tablets and that the Xanax tablets belonged to a friend.
The applicant was charged by Detective Senior Constable Vakulcyzk (‘the informant’) with the four offences for which he now seeks bail, and remanded into custody.
Procedural history
The applicant was refused bail on 10 August 2022 at the Heidelberg Magistrates’ Court. The matter is next listed for mention on 26 September 2022.
Co-accused
The driver Curtin, together with the two other passengers, Sarpharktra Ven (‘Ven’) and Hillah Atmar (‘Atmar’), were charged in relation to the incident.
Curtin was charged with theft of motor vehicle (two charges), possess methylamphetamine (one charge), commit indictable offence while on bail (two charges), handle stolen goods (eleven charges) and possess prohibited weapon without approval. He was remanded in custody and has not applied for bail. Curtin has a criminal history, including periods of imprisonment, and was on a community correction order (‘CCO’) at the time of this alleged offending. His matter is next listed for contest mention at Heidelberg Magistrates’ Court on 20 September 2022.
Ven was charged with theft of motor vehicle, negligently deal with proceeds of crime, possess methylamphetamine and commit indictable offence while on bail. He has an extensive 33-page criminal history, including periods of imprisonment. He was also on a CCO for numerous offences, including Schedule 2 offences, at the time of this alleged offending. Ven was granted bail by police, with a residential condition. His matter is listed for first mention at Heidelberg Magistrates’ Court on 25 November 2022.
Atmar was charged with theft of motor vehicle and negligently deal with proceeds of crime. She has a 22-page criminal history and she, too, was on a CCO at the time of this alleged offending. Atmar was granted bail by police on her own undertaking, without conditions. Her matter is listed for first mention at Heidelberg Magistrates’ Court on 25 November 2022.
Other outstanding matters
Informant Rees (bail)
On 8 February 2022, the applicant was located by police in a shopping centre carpark in the early hours of the morning, drinking alcohol with two unknown males. When police arrived, the two unknown males left in a vehicle. The applicant and surrounding area were searched by police, who located a laptop and a backpack. Inside the backpack was one small zip lock bag containing methylamphetamine, two small zip lock bags containing cannabis, a container of Xanax, 27 identification cards in various names, a Tag Heuer watch, two mobile phones and a set of knuckle dusters.
The applicant was charged with three charges of possess drug of dependence (methylamphetamine, cannabis and Xanax), handle stolen goods, possess prohibited weapon and two charges of commit an indictable offence while on bail (‘Rees charges’). It seems the informant Rees thought the applicant was on bail to appear at the Melbourne County Court. The respondent concedes this is wrong. The applicant had been placed on ‘appeal bail’ on 6 March 2020, and that bail was answered on 5 June 2020 when the applicant’s appeal was heard by the County Court.
The applicant was granted bail on the Rees charges by the Melbourne Magistrates’ Court.
Informant Spiekman (charged on summons)
On 16 November 2021, the alleged victim was driving into an underground carpark at Ivanhoe Woolworths, when he noticed he was being followed by the applicant, driving a Holden Captiva. The applicant is said to have approached the victim, a stranger, and followed him from the carpark, saying he would wait ‘all day’ for the victim to return. The victim began filming the applicant, who knocked the phone from his hand. The victim then punched the applicant, who fell to the ground. During the incident, an unknown male remained in the applicant’s vehicle.
The applicant was identified via the Captiva’s registration plate, which was captured in the video. The applicant was interviewed at his home on 21 December 2021, and was charged on summons with summary offences of wilful damage and unlawful assault.
Informant Sealey (charged on summons)
On 21 February 2021, the applicant, who was intoxicated, was walking with his uncle after leaving the Australian Open. Two passers-by, one male and one female, saw the applicant shirtless and urinating on a fence with his penis exposed. The applicant called the passing male a ‘poofta’. The male told the applicant to put his penis away, and in response the applicant waved his penis and yelled at the female to ‘give it a suck’. The applicant’s uncle tried unsuccessfully to intervene. The applicant hit the male with a glass bottle to the left side of his head, causing a laceration and bleeding, and a fight ensued. Nearby police officers intervened. The applicant continued to expose his penis and was verbally abusive to police. He was arrested and interviewed, during which he admitted fighting the victim but claimed that the victim threw the first punch.
The applicant was released, and in July 2021 he was charged on summons with intentionally causing injury, recklessly causing injury, assault with an instrument, affray, sexual exposure, being drunk and disorderly in a public place and behaving in an indecent manner in a public place (‘Sealey charges’).
Informant Stubbs (charged on summons)
On 11 August 2022, the applicant allegedly defecated in the shower while he was in custody at the Heidelberg Police Station cells. The applicant stated he had done this because he was not given his medication. The applicant was not interviewed and was charged on summons with acting in a manner prejudicial to the management of a police gaol.
The legislation
The applicant is accused of a Schedule 2 offence, namely commit an indictable offence while on bail.[1] This is alleged to have been committed while he was subject to a summons to answer charges of intentionally cause injury, recklessly cause injury and affray, during which is it alleged the applicant used an offensive weapon (glass bottle). In such circumstances, those charges are Schedule 2 offences.[2] Thus, the applicant is charged with a Schedule 2 offence while on summons for a Schedule 2 offence. Pursuant to s 4AA(2)(c)(ii) of the Bail Act 1977 (‘the Act’), bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.
[1]Bail Act 1977 (Vic) s 30B and sch 2 item 30.
[2]Bail Act 1977 (Vic) sch 2 item 23. The applicant is also alleged to have committed a Schedule 2 offence while on bail for charges of committing an indictable offence while on bail, which are also Schedule 2 offences (Rees charges), but the respondent concedes those charges were wrongly laid.
The Court is required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act. In considering whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[3]
[3]Bail Act 1977 (Vic) s 4A(3).
If satisfied to the requisite standard that exceptional circumstances exist, the Court must then consider the unacceptable risk test.[4] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[5] In considering whether a 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 any risk so that it is not unacceptable.[6]
[4]Bail Act 1977 (Vic) s 4D(1)(a).
[5]Bail Act 1977 (Vic) ss 4D(2)–(3), 4E(1)–(2).
[6]Bail Act 1977 (Vic) s 4E(3).
Pursuant to s 5AAAA(1) of the Act, I must make inquiries as to whether there is in force a family violence intervention order, notice or interstate equivalent. I have been informed as follows:
· The applicant is the subject of an interim intervention order, obtained ex parte on 22 June 2022, where the affected family members are his ex-partner, ZA, and their two children, aged 4 and 15. The interim intervention order matter returns to Heidelberg Magistrates’ Court on 26 September 2022.
The offence I am dealing with is not a ‘family violence offence’ as defined in the Act, therefore s 5AAAA(2) is not applicable. However, that does not mean the fact of the intervention order is irrelevant. The risk of family violence must be considered when considering the question of unacceptable risk.
The applicant
The applicant is 40 years old. He was born in Melbourne and grew up in the Epping area. He reports that his parents fought often and his father drank heavily and used cannabis. He moved out of home at age 15 to live with his then partner, who was 27 years old at the time.
After completing Year 8, the applicant went on to work in commercial cleaning and subsequently did other trade work, before reportedly suffering a spinal injury while diving at Seaford beach in December 2019. Since 2020, he has received the Disability Support Pension. A letter from his general practitioner, Dr McKenzie, confirms the applicant is prescribed Seroquel, Serapax and Stilnox. He has been using these medications for many months, and in the case of Serapax, many years.
In 2002, the applicant formed a relationship with ZA and had two children. They were together for 17 years, however separated in 2020. Following the separation, the applicant was homeless or residing in short-term accommodation before being assisted to find a rental by Melbourne City Mission.
The applicant has a long history of using alcohol, including to excess. He used cannabis from ages 15 to 25. He used heroin after he injured his back in 2019, leading to a heroin addiction.
A psychological assessment report of Gina Cidoni dated 3 June 2022 was tendered on the applicant’s behalf. Ms Cidoni diagnosed the applicant with post-traumatic stress disorder, an adjustment disorder with anxiety and depressed mood, somatic symptom disorder and generalised anxiety disorder. At the time of the assessment there were features of a very mild transient drug-induced psychosis present, probably due to the applicant’s past drug use. Ms Cidoni recommended a neuropsychological assessment, and stated the applicant suffers from ‘severe and untreated mental illness’.
Between February and June 2022, the applicant successfully engaged with the Court Integrated Services Program (‘CISP’), having been placed on CISP bail for the Rees charges. The final CISP report praised the applicant ‘for his positive outlook and achievements whilst on CISP bail’. A further CISP assessment has been arranged for 29 September, and if suitable, a CISP condition mandated.
Prior to his remand, the applicant was residing at 43 Dougharty Road, Heidelberg Heights, with his partner of approximately two years, Jessica Ponomarenko. This is public housing in the applicant’s name. There are no issues with rent or similar, and the housing is secure.
Criminal history
The applicant has a four-page criminal history dating back to 2000, at which time he was aged 18. Between 2000 and 2008, he was dealt with in the Magistrates’ Court on six occasions for charges including wilfully damage property, resist police, shop theft and use insulting words in a public place. He received various adjourned undertakings and fines for the offending.
In March 2020, the applicant was dealt with in the Heidelberg Magistrates’ Court on charges including threat to kill, negligently deal with proceeds of crime, fail to answer bail, contravene a conduct condition of bail and fail to keep a safe distance behind vehicle. The charges arose from two separate incidents, occurring in April and August 2019. The first was a ‘road rage’ incident, where the applicant tail-gated a family while driving behind them, then confronted the driver while stopped at lights. The second incident related to stolen power tools and other items found by police at the applicant’s premises upon execution of a search warrant. The applicant was sentenced to 11 months’ imprisonment. He successfully appealed the sentence to the County Court, and on 5 June 2020 he was placed on a 12-month community correction order.
The applicant’s evidence
Ms Ponomarenko gave brief evidence on the hearing. The applicant has been her best friend for ten years, and her partner for two years. They live together. She told the Court she was prepared to post a surety of $2,000, which was ‘every last bit’ of the money she had. She said she understood that if the applicant were to ‘make a mistake again’, she would ‘lose it all’. She undertook to notify the informant if she became aware of any breaches of bail by the applicant, including any illicit drug use. She also said she would ‘stay on his case’ more, and help ensure he would not associate with the wrong people. She was not cross-examined.
Immediately after lunch, and just before I was to rule, the applicant informed the Court that Ms Ponomarenko was not in a position to provide the surety today, and may not be able to provide the surety at all. I will return to this.
The applicant’s submissions
The applicant relies on a combination of factors to establish exceptional circumstances.
The applicant submits there are weaknesses in the prosecution case, particularly on the charges of theft of motor vehicle and negligently deal with proceeds of crime. There is a lack of evidence as to the applicant’s knowledge that the vehicle was stolen, noting he was a passenger and the vehicle keys were found in possession of a co-accused. The applicant is prescribed Serapax, and has a defence to possessing that medication.
It is conceded the applicant has a criminal history, however he was offence-free for 12 years. The only term of imprisonment he ever received was set aside on appeal. He has no prior convictions for theft of motor vehicle.
The applicant has recently successfully completed CISP bail. He accessed approximately 16 weeks of CISP case management support, and was exited from the program at the request of CISP, given his positive compliance.
The applicant has stable accommodation with Ms Ponomarenko, who is fully supportive of the applicant. Ms Ponomarenko does not currently work, and is available to assist the applicant by acting as his full-time carer and helping the applicant to stay ‘on track’.
The applicant has a number of mental health difficulties which make him vulnerable in custody. Ms Cidoni opines that his conditions are ‘chronic and serious’, and there is a risk that imprisonment will have a ‘serious adverse effect’ on the applicant’s fragile mental health. The applicant has a current mental health care plan available through his general practitioner, Dr McKenzie, although there is nothing concrete in place.
The applicant frankly concedes that his conditions in custody have not been made particularly onerous due to COVID-19. He has been offered access to some courses. Personal visits have not occurred, but that is because he does not want his partner or his children to see him in custody. The applicant submits the real and ongoing impact of the pandemic is the delay in the court system. If the applicant remains in custody, the earliest a contested hearing may be listed is February 2023. The applicant has already accrued 38 days by way of pre-sentence detention, and even if convicted, the offending is not so serious that a jail term is inevitable.
The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of failing to answer bail, or committing further offences while on bail. The applicant submits that any risk can be rendered acceptable through the imposition of conditions, including that he reside at a fixed address, that he not contact any co-accused or prosecution witnesses, and that he abstain from using any drug of dependence.
The respondent’s submissions
The respondent submits that exceptional circumstances have not been shown, and that even if the applicant clears that hurdle, he poses an unacceptable risk of committing an offence whilst on bail and/or failing to answer his bail.
The respondent submits the prosecution case is not weak. CCTV footage proves the applicant was a passenger, and the prosecution will rely on what the applicant said in his record of interview as the basis for an inference that he knew the Porsche was stolen. The respondent concedes the applicant is lawfully prescribed Serapax, but notes there is no evidence he was prescribed Xanax. The respondent intends to amend the charge to possession of the 11 Xanax tablets only.
On the question of delay, the respondent agrees with the estimate given by the applicant. The respondent agrees the most serious offence for which the applicant seeks bail is theft of motor vehicle, and if the Court forms the view that any time on remand would likely exceed any ultimate sentence, that is a significant matter in the applicant’s favour.
The respondent argues the applicant has a recent, relevant criminal history, and is a risk of committing further offences if released on bail. The recent offending includes a ‘road rage’ incident, and threatening members of the public. The applicant is also charged on summons with offences involving abuse and violence, directed at innocent members of the public.
The respondent relies on the applicant’s one prior conviction for fail to answer bail in proof that there is an unacceptable risk the applicant will fail to answer any future bail.
The informant accepts there have been no alleged breaches of the interim intervention order. The victim of the theft of motor vehicle has not been consulted about this application, given the nature of the crime. The informant states police have no concerns with either the proposed address, or with Ms Ponomarenko’s minor criminal history.
The respondent submits the proposed conditions are no different to the bail conditions on the Rees charges, and are insufficient to reduce the risk of the applicant reoffending to an acceptable level.
Analysis
The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[7]
[7]See, eg, Re Nicholls (2020) 279 A Crim R 289 at 293 [16] (Incerti J), quoting Re Brown [2019] VSC at [65] (Lasry J).
In Roberts v The Queen,[8] the appellant had spent more than 20 years in custody for convictions which had been quashed, and faced a retrial. The Court of Appeal said:[9]
A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
[8][2021] VSCA 28.
[9]Roberts v The Queen [2021] VSCA 28, [9] (Maxwell P, Niall and Emerton JJA).
I turn to the strength of the prosecution case. The applicant told police he presumed Curtin was a stockbroker, based on how he dressed. However, Curtin was arrested during business hours, wearing a tracksuit top and cropped jeans. Curtin had short hair with two long sections, worn in plaits which extended down his back. Without wishing to stereotype stockbrokers, a Magistrate may have little difficulty rejecting that portion of the applicant’s account. The applicant told police he had been to Curtin’s address numerous times over the past month, and seen the Porsche there. The respondent points out the Porsche was only stolen 18 days prior to the applicant’s arrest. In my view, there are triable issues, but the prosecution case on the charge of theft of motor vehicle is not weak. The case on negligently deal with proceeds of crime, however, does appear weak. It is unclear how the applicant received, possessed, concealed, disposed of or otherwise dealt with the Porsche, given he was a backseat passenger.
I acknowledge the applicant contests the charges and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. In my view, the charge of theft of motor vehicle is not a serious example of this offence. The prosecution case, at its highest, is that the applicant was one of three passengers seated in the back seat of a stolen Porsche, for a short period of time on a single day. The charge of possess drug of dependence now concerns 11 Xanax tablets. This is not a serious example of possessing a drug of dependence and, in my view, would likely be dealt with by way of a monetary penalty.
When considering the delay in this matter, I am told the earliest a contested hearing would be heard is February 2023, meaning the applicant will spend approximately six to seven months on remand, perhaps more. Whilst this is not, on one view, a very lengthy delay, any delay needs to be considered in light of the seriousness of the charges, and the likely ultimate sentence if the applicant were found guilty. In my view, there is a real likelihood that, if convicted, the applicant’s time on remand would exceed his ultimate sentence. In those circumstances, a delay of seven months between charge and contest is a significant factor favouring the grant of bail.
Pursuant to s 3AAA(1)(h), I must take into account any special vulnerabilities of the applicant, including any mental illness. Based on the report of Ms Cidoni, the applicant suffers from severe mental illness. He is fragile, hypervigilant and emotionally over-reactive. I accept the opinion of Ms Cidoni that the applicant’s poor mental health means any time on remand will be particularly onerous, and there is a real risk his mental health will deteriorate in custody. Additionally, his untreated mental illness will make him more vulnerable in the remand prison population than other, healthy remand prisoners.
For a combination of reasons — principally delay; the low-level seriousness of the alleged offending; the real risk that the applicant will spend longer on remand than he would serving any ultimate sentence, if convicted; and the applicant’s vulnerable mental health — I am satisfied that exceptional circumstances have been established.
I turn to the question of unacceptable risk.
The respondent relies on the applicant’s single prior conviction for fail to answer bail to establish that the applicant is an unacceptable risk of failing to answer bail. In my view, there is a theoretical risk the applicant might fail to answer his bail; however, that risk cannot realistically be described as ‘unacceptable’. The real question here is whether the applicant is an unacceptable risk of committing further offences while on bail.
The unacceptable risk test is not one of an absence of risk; it is uncontroversial that some risk is extant whenever an applicant is released on bail.[10] Based on the criminal histories of the co-accused, two of whom were granted bail by the police, there is a risk that any of the persons who were in the Porsche might commit an offence in the future. However, that alone does not make the risk ‘unacceptable’. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all the relevant circumstances, including the magnitude of the risk, makes it unacceptable.[11]
[10]Haddara v DPP [2014] VSC 284 at [57] (Hollingworth J); see also Woods v DPP (2014) 238 A Crim R 84 at 99, [44] (Bell J).
[11]Haidy v DPP [2004] VSC 247, [16] (Redlich J).
The applicant’s assertion that relations with his ex-partner, ZA, are ‘amicable’ is contradicted by the account contained in her interim intervention order application. However, there is no suggestion the applicant has breached the interim family violence intervention order made 22 June 2022. Based on the tendered court extracts, the applicant is aware of the interim order and has engaged lawyers. That matter is next before the Heidelberg Magistrates’ Court on 26 September 2022.
The respondent initially asserted that the applicant was on ‘multiple counts of bail and summons’ at the time of this alleged offending. The respondent accepts that the applicant was, in fact, on one grant of bail only, noting Informant Rees’ error. The applicant was charged on summons in relation to two other matters; initiation by way of charge and summons is usually used where the offending is viewed by police as less serious. That said, the alleged offending on those outstanding matters is concerning. It appears to be random, and involves violence directed towards innocent members of the public.
Delay remains relevant at this stage of the bail process. As Kellam J observed in Mokbel v DPP (No 3),[12] the issue of detention by reason of unacceptable risk must be balanced with the likelihood of an accused being tried in the near future. Any actual or anticipated delay may be of such a magnitude that risks which would, in other circumstances, be unacceptable, may properly be viewed as acceptable.[13]
[12](2002) A Crim R 141 at 143, [13].
[13]Barbaro v DPP (Cth) (2009) 20 VR 717 at 728, [41] (Maxwell P, Vincent and Kellam JJA).
Whether the applicant is likely to spend more time on remand than any ultimate sentence he would receive in the event of conviction remains a significant consideration. Pursuant to s 3AAA(1)(l) of the Act, the Court must take into account ‘the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged’, meaning the charged offence for which the accused seeks bail. If the applicant is held in custody on these matters, any pre-sentence detention will be referrable to these charges only. I do not regard it as appropriate to have regard to other possible eventual sentences on different outstanding charges, where the applicant was charged on summons and about which I know virtually nothing. As I have stated, it is my view that the applicant’s time on remand on these charges may easily exceed the term of any ultimate sentence. A custodial sentence for this offending is by no means a certainty, and of course, the applicant may be acquitted of one or more of the charges.
The applicant does not have a lengthy criminal history, and this is his first time in custody. The applicant’s recent success on CISP bail is encouraging. He was described in the CISP report as respectful, and he followed through with any request made by them. The applicant was willing to engage in mental health treatment and counselling, but unfortunately remained on a waitlist due to state-wide delays and increased demand for mental health services.
However, the ongoing support of the applicant’s partner is a positive factor. Whilst the applicant was living with his partner at the time of this alleged offending, I accept she will in future keep a ‘close eye’ on the applicant. The proposed surety was modest, and would not have done a great deal to mitigate risk. However, the surety would also have reported any breaches of bail to the informant, which is not something the applicant has had previously. Despite the collapse of the proposed surety, there are a number of available conditions which would ameliorate risk. They are not foolproof, but a fixed residential condition and a weekly reporting condition would go some way to reducing risk.
There is one final matter to deal with. The applicant has a further CISP assessment on 29 September 2022. In all the circumstances, it was undesirable to delay this application to await that assessment. In my view, if CISP is available, then a ‘CISP’ condition should attach to any grant of bail; such a condition would be no more onerous than required to reduce the risk of the applicant reoffending.[14]
[14]Bail Act 1977 (Vic) s 5AAA(2)(a).
Despite the collapse of the proposed surety and the pending CISP assessment, there remain a number of available conditions which would ameliorate risk. They are not foolproof, but a fixed residential condition and a weekly reporting condition would go some way to reducing risk. Additionally, I note the applicant has court matters on 26, 28 and 29 September.
In all the circumstances, the respondent has not satisfied me that the applicant is an unacceptable risk of committing further offences while on bail, or failing to answer bail, if released on bail today with conditions. However, given the pending CISP assessment and last-minute problems with the surety, I propose to release the applicant on bail, and list the matter for further hearing on Friday 30 September 2022 at 9:15am.
Conclusion
Bail is therefore granted.
The applicant will be released on bail on his own undertaking on the following conditions:
1) He attend the Heidelberg Magistrates’ Court on 26 September 2022 at 9:30am. and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2) He reside at 43 Dougharty Road, Heidelberg Heights, Victoria (‘residential address’).
3) He present at the front door of his residential address upon the reasonable request of any member of Victoria Police.
4) He not contact any witness for the prosecution except the informant, Detective Senior Constable Daniel Vakulgyzk (‘the informant’).
5) He not contact or associate with, directly or indirectly, including electronically, any of the co-accused, being Jesse Curtin, Sarpharktra Ven and Hillah Atmar.
6) He not leave the State of Victoria.
7) He not attend any points of international departure.
8) He surrender any passports or other travel documents to the informant within 24 hours of release and not obtain or apply for others.
9) He report to the officer in charge, or his or her nominee, at the Heidelberg Police Station every Wednesday between the hours of 6:00am and 8:00pm, commencing Wednesday 5 October 2022.
10) He attend at the Supreme Court of Victoria on Friday 30 September 2022 at 9:15am for the further hearing of this matter.
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