Re Foord
[2021] VSC 513
•20 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0207
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by Ashley FOORD |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2021 |
DATE OF JUDGMENT: | 20 August 2021 |
CASE MAY BE CITED AS: | Re Foord |
MEDIUM NEUTRAL CITATION: | [2021] VSC 513 |
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CRIMINAL LAW – Application for bail – Trafficking in a drug of dependence – Compelling reasons made out – No unacceptable risk – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C. Farrington | Sarah Pratt & Associates |
| For the Respondent | Mr A. Singh | Victoria Police |
HIS HONOUR:
Introduction
Ashley Foord (‘the applicant’) was arrested on 6 July 2021 and remanded in custody on charges of trafficking in a drug of dependence, possessing a drug of dependence (two counts), knowingly dealing with proceeds of crime and possessing a prohibited weapon without exemption.
At that time, the applicant was on a community corrections order for offences of unlicensed driving, failing an oral fluid test within three hours of driving, failing to wear a motorbike helmet and failing to comply with vehicle registration standards. He was also on summons in relation to offending alleged to have occurred on 24 March 2021, for which he was charged with driving whilst disqualified and entering an intersection whilst traffic lights were red.
In relation to these matters, the applicant has been refused bail in the Magistrates' Court twice. The matter is next listed for mention in the Geelong Magistrates' Court on 7 September 2021. By application filed on 4 August 2021 the applicant seeks a grant of bail in this court. On 19 August 2021 the matter came before me as an application for bail. I granted the application and indicated that I would provide written reasons. These are those reasons.
The applicable legislation
At the outset of this application, there was some confusion about the applicable test for bail in this matter. That is, whether or not there was an uplift from compelling reasons to exceptional circumstances related to the Schedule 2 offence of trafficking in a drug of dependence by virtue of the fact that he was on a Community Corrections Order (CCO).
The applicant had previously been on a CCO for a Schedule 2 offence, namely drug trafficking, but was not on that CCO at the time of this alleged offending, and therefore none of the uplift provisions as a result of him being on a CCO apply. The fact that he was on a CCO simply is part of the surrounding circumstances which I am obliged to take into account.
As the applicant is accused of a Schedule 2 offence within the remaining s 3 of the Bail Act 1977 (‘the Act’), that is, trafficking in a drug of dependence, bail must be refused unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail. The Court is obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.
The meaning of ‘compelling reason’ is not defined in the Act, but has been considered authoritatively within this Court on a number of occasions, most significantly in Rodgers v The Queen[1] by the Court of Appeal, where the relevant principles were set out as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist. [2]
[1][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[2]Ibid, [43].
If satisfied of the existence of compelling reason, the unacceptable risk test must then be applied. That is, the Court is obliged to consider whether, having regard to the surrounding circumstances, the respondent has established that the applicant poses an unacceptable risk of the matters set out in s 4E(1)(a) of the Act. The Court must further consider whether there are any conditions of bail which may be imposed to mitigate any risk that is not unacceptable.
Finally, s 5AAAA(1) of the Act requires the Court to make inquiries of the prosecutor as to whether there is a force against the applicant a family violence intervention order (‘FVIVO’), a family violence safety notice or another recognised domestic violence order. The respondent has confirmed that the applicant is currently subject to a final FVIVO, which names his former partner and their child as the affected family members (‘AFMs’). The FVIVO was made on 7 July 2021 in the Geelong Magistrates’ Court, with conditions that the applicant not commit family violence against the AFMs, or intentionally damage their property or threaten to do so. The FVIVO remains in effect until 29 April 2022.
The alleged offending
On 6 July police executed a search warrant at 4 Astor Street in Norlane. The premises have a main residence at the front of the property and a bungalow at the rear. The applicant had been residing in the bungalow at that time. As the police arrived they observed a number of sensors and CCTV cameras around the perimeter of the bungalow and main entrance. The sensor alarms were activated as they moved through the property. There was nothing particularly sophisticated about that system.
During a search of the bungalow police located and seized a total of 8.3 grams of methylamphetamine contained within eight separate reusable bags, 23 ml of 1-4-Butediaonol contained in part in a plastic water bottle and in part in a plastic syringe, and an extendable baton and $9870 in cash and a CCTV hard drive. Police also located and seized a digital set of scales and a large quantity of reusable bags, although it is not stated these items were seized from the bungalow or the main residence, but I assume they were from the bungalow.
Footage from the CCTV hard drive showed the applicant throwing packages over neighbouring fences a moment before police arrival. Accordingly police searched the neighbouring properties and located a total of 42 grams of methylamphetamine contained within three separate reusable bags and a magnetic box.
Police estimated the total street value of the methylamphetamine seized to be about $8000. The applicant was arrested and largely made a no comment interview, although he did state that he uses methylamphetamine daily and GHB on occasion. He refused to provide a passcode to his mobile phone and was remanded in custody.
It seems to me that this is a reasonably strong case in relation to the charge of trafficking, which includes not just the finding of the drugs, but the finding of the cash and other indicia, including the scales and the plastic bags.
The applicant
The applicant is 33 years of age. He has a reasonable education. It appears that he first started using amphetamine at about the age of 21 and has reported consistent methylamphetamine use over the last 10 to 12 years. He estimates that he was smoking a couple of points every one or two days prior to his remand, although, in the psychological report provided on his behalf, there is a concession of daily methylamphetamine use.
The applicant has some psychiatric history with two inpatient admissions which appear to be directly related to drug use. He also appears to have known for the last 10 years that it was likely that he would meet the diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).
The applicant has said that his period on remand, that is since 6 July, is the first period of abstinence from substance use apart from the two psychiatric admissions to which I have referred. He expresses present motivation to engage with drug and alcohol counselling and a desire to maintain his abstinence. In particular, he is driven by the influence that detention has had on him and his wish to establish a relationship with his 15 month-old son. He is of the view that it is unlikely that his former partner will be able to maintain a useful relationship with their child because of her drug addiction.
There are restrictions in existence at the moment that would affect what the applicant can do with the child but they are manageable; as is the involvement of the Department of Families, Fairness and Housing (DFFH). That involvement requires the applicant to have regular urine screenings and complete an anger management and men's behaviour change program. It is suggested in the report, which has been filed on his behalf, that the applicant has completed those programs.
The applicant has been assessed by forensic psychologist, Carla Ferrari on 23 July 2021 and a report dated 24 July 2021 was annexed to the affidavit in support of the application for bail. The report sets out in detail much of the applicant's history, both in relation to his family, personal and relationship history, his history related to education, employment and substance use. Ms Ferrari details the applicant's mental health history, which includes self-reported symptoms of depression and anxiety as well as a history of psychiatric illness on the maternal side of his family. Ms Ferrari provided a prognosis based on the applicant's history and psychometric testing of possible generalised anxiety disorder and untreated ADHD.
Ms Ferrari notes that symptoms of ADHD can predispose an individual to impulsivity, cognitive and behavioural dyscontrol, emotional regulation issues, risk-taking behaviour, among other deficits which often inhibit them from weighing up the consequences of their behaviour. I do not regard any of those matters as being particularly present in this matter. What is likely, however, is that the untreated ADHD might have led the applicant into self-medicating, which of course is linked to his use of drugs.
Ms Ferrari administered a risk assessment of the applicant and that assessment was that the applicant poses a moderate risk of reoffending. What ‘moderate’ means in the circumstances is not explained. Ms Ferrari, somewhat hopefully it seemed to me, noted that the applicant has a number of protective factors which mitigate his risk level, namely his supportive relationship with his mother, insight into his mental health and substance use and positive attitude towards treatment. I must say in relation to that, as the applicant said himself during the application, I have probably seen it all before. I have seen it all before, and the results have largely not been positive.
However, what Ms Ferrari is able to offer is that the applicant will immediately be able to receive counselling through Ms Ferrari's office. An appointment has now been made so that the applicant could attend his GP and get a mental health plan put in place. That may well need to go in hand with him receiving the suggested counselling that was outlined.
Analysis
The applicant’s affidavit in support suggested that there were weaknesses about the Crown case. That part of the submission was not pressed before me. The matters that were strongly pressed were that this was the applicant’s first time in custody, that he has the support of his mother and he would reside at home at Norlane with her. The prosecution have accepted that that address would be appropriate.
It was also put that the applicant has, it is suggested, special vulnerability as a result of the matters set out in Ms Ferrari's report, particularly relating to his generalised anxiety disorder and his ADHD, both of which have been untreated. Although this is a matter which would go more powerfully to sentence, it was put that because of those matters the applicant will find custody more onerous compared with persons who do not have those conditions.
Having been assessed by the Court Integrated Services Program (CISP), the applicant has available to him support under the Remand Outreach Program (CROP), which he would be referred to for treatment for drug issues, mental health issues and assistance dealing with DFFH in relation to his son.
Now, it was suggested that if the applicant chooses to fight these matters, which is his present intention and which is his right, he would be likely to be detained on remand for longer than any period of imprisonment that would be imposed. I was told by Mr Singh, who appeared for the respondent, that the CCTV is the subject of further analysis to assess whether or not there is evidence of visitors to the premises. The applicant will know exactly what is on the CCTV footage and will understand whether delay of the case will make the case worse for him. That is a matter for him.
It was pointed out, and rightly so, that during the present COVID-19 pandemic conditions for those in custody have been much more onerous than they have been in the past. This court has on a number of occasions noted that this is a matter to be taken into account in assessment of whether a grant of bail is warranted.
The other matter put in support of the application is that there is a $10,000 surety being made available by the applicant’s mother.
Those are the matters which it is said make out a compelling reason and I accept by not much margin, that compelling reasons have been made out. That leads me to consider the question of unacceptable risk.
There is one unacceptable risk which is clear in the present circumstances and that is the possibility of the relapse of the applicant into drug use. Experience tells us that the risks in relation to that are significant, and I suspect in relation to somebody who has been on a ten year path of drug addiction to methylamphetamine it is a particular risk.
It is that particular risk which is put by the respondent as being an unacceptable risk which cannot be satisfactorily dealt with by the imposition of conditions. That is supported by a submission that the allegation of the offending is reasonably serious, that it is a strong prosecution case, that the applicant has a significant criminal history, including prior convictions for drug related offences, and an appalling record in relation to obeying conditions imposed in relation to CCOs.
It is accepted by the respondent that the applicant’s mother's property is a stable address. It is submitted that there is the risk that the applicant’s bungalow is separate from his mother's house and that is where this offending was said to have been occurred.
The respondent noted that the applicant does not have significant supports for his mental health and drug use at the moment. Difficulty was also raised that some of the supports suggested in Ms Ferrari's report having not been put in place, but it seems to me that the subsequent letter filed today suggests that there has been an attempt to put those matters in place.
The respondent does not accept that much reliance can be placed upon the CROP support that is available, and the respondent does not accept that there is a particular likelihood that any sentence imposed would be greater than the sentence which the applicant might subsequently receive. Ultimately, the respondent submits that I ought accept that there is an unacceptable risk.
On balance I have come to the conclusion that sufficient conditions can be imposed which will render the risk that the applicant represents as not unacceptable. In particular, the offering of the surety by the applicant's mother, a not insignificant step on her behalf, ought have a powerful influence on the applicant to deter him from breaching his conditions of bail, and I hope it does. The applicant’s mother has undertaken to report any breach of bail.
The other matter which is perhaps of more significance is that he immediately has available to him counselling which will commence virtually immediately.
Ruling
The court is satisfied that compelling reasons are made out and justify the grant of bail. It has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
The court orders that Ashley Foord be admitted to bail on his own undertaking and one surety in the amount of $10,000 and on the following special conditions:
(a) He attend the Geelong Magistrates’ Court on 7 September 2021 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.
(b) He reside at 4 Aster Street, Norlane in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9pm and 6am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He report daily to the Officer in Charge of the Police Station at Geelong or his or her nominee, between the hours of 7am and 8pm and that he commence that reporting when he has been notified by the informant that in-person reporting has re-commenced.
(f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(h) That the result of any urine samples provided to the Department of Families, Fairness and Housing also be provided to informant.
(i) He engage with psychologist Ms Laura Fleming, and undergo any psychological treatment as directed by her today, 19 August 2021.
(j) He comply with all lawful directions of any officer of the Court Integrated Services Program and attend all appointments for drug and alcohol treatment as directed by that service.
(k) That he attend an appointment with his GP as arranged by Ms Laura Fleming for the purpose of arranging a mental health treatment plan.
(l) That he have but one mobile phone, and he provide the number of that phone and any password to the informant within 72 hours of his release from custody or within 72 hours of obtaining a mobile phone.
(m) He allow any member of Victoria Police access to that phone if and when called upon to do so.
(n) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(o) He not leave the State of Victoria.
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