Re Forrester
[2022] VSC 654
•28 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0273
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by TYSON FORRESTER |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2022 |
DATE OF RULING: | 28 October 2022 |
CASE MAY BE CITED AS: | Re Forrester |
MEDIUM NEUTRAL CITATION: | [2022] VSC 654 |
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CRIMINAL LAW – Bail application – Charges of culpable driving causing death, driving under the influence of a drug and driving at excessive speed – Single vehicle collision – High level of methylamphetamine detected in applicant’s bloodstream – Speed before impact estimated between 166 kph and 195 kph – Previous convictions for drug related offending – Applicant recently intercepted on four occasions while driving vehicle while exceeding the prescribed concentration of drug in bloodstream – Proposal that applicant undergo treatment in the Odyssey House Residential Therapeutic Residential Rehabilitation Program – Delay - Applicant not previously in custody – Whether compelling reason established – Whether unacceptable risk of re-offending, of endangering public safety and failing to answer bail – Bail Act 1977 ss 3AAA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Hannebery KC | Angus Cameron Lawyers |
| For the Respondent | Mr J Johnson | Ms A Ruberto, Solicitor for Public Prosecutions |
HIS HONOUR:
In the early morning of 3 April 2022, the applicant, Tyson Forrester, was the driver of a motor vehicle that was involved in a single vehicle collision on Central Kialla Road, Arcadia, which resulted in the death of the passenger in the vehicle, Reagen McDonald. On 5 April, the applicant was charged with a number of offences arising out of the collision, including culpable driving, driving a motor vehicle while under the influence of a drug to the extent that he was incapable of having proper control of the vehicle, driving at a speed that was in excess of the speed limit, and being a learner driver, driving a motor vehicle on a highway without an appropriate supervising driver sitting beside him.
On 20 September, the applicant unsuccessfully applied to the Magistrates’ Court for bail. He now applies to this Court for bail.
Circumstances of offending
The accident occurred at approximately 1:40 am. Central Kialla Road is the main carriageway between Shepparton and Euroa, and is the continuation of the Shepparton-Euroa Road. At the point of the collision, the road was a two-way, two- lane sealed highway in good condition. The applicable speed limit was 100 kph. At the time of the collision, the road was dry.
Shortly before the collision, the applicant was driving a 2006 Ford Falcon vehicle at a high speed in a southerly direction on the roadway. His passenger, Ms McDonald, was seated in the front passenger seat. Ms McDonald was nineteen years of age. Immediately before the collision, the front tyre of the vehicle hit a small depression in the roadway, close to the eastern shoulder. As a result, the applicant lost control of the vehicle. It travelled approximately 88 metres across the opposing lanes, left the highway and collided with trees located on the western shoulder of the road. As a result of the impact, the vehicle separated into two pieces. The front section, in which the applicant was seated, came to rest at the trees. The rear section, which included the front passenger seat in which Ms McDonald was seated, travelled approximately 52 metres south-west and came to rest in a paddock.
After the collision, the applicant extricated himself from the driver’s seat. He was located by a taxi driver while walking south, approximately 500 metres from the collision scene. The taxi driver understood that the applicant had been hit by a motor vehicle on the roadway, and drove him back to the scene of the collision. She then summoned the police.
After emergency services attended, they treated the applicant. He was arrested at the scene for culpable driving, and conveyed by ambulance to the Goulburn Valley Hospital with serious injuries. In the meantime, Ms McDonald was located by police trapped under the wreckage of the vehicle in the paddock, and she was declared deceased at the scene.
Subsequently, Detective Sergeant Rob Hay of the Major Collision Investigation Unit, performed a reconstruction of the accident scene. Based on his observations of the scene and on calculations that he made, he estimated that the speed of the Ford sedan, approximately 20 metres before it commenced to yaw after striking the depression in the roadway, was between 166 kph and 195 kph. Sergeant Hay explained that as a result of the speed at which vehicle was being driven, when the vehicle’s tyre struck the depression, the undercarriage of the vehicle struck the road surface, which induced a right hand steering of the vehicle, causing it to yaw in a clockwise direction and leave the road surface.
At about 2:43 am on 3 April, a blood sample was taken from the applicant. On analysis, it was found to contain 0.79 mg/L methamphetamine and 0.27 mg/L amphetamine. Dr Jason Schreiber, a forensic physician, has provided a report stating that any methamphetamine blood level can cause impairment, with higher blood levels, such as over 0.20 mg/L, being highly likely to have such an effect. He noted that the methamphetamine level found in the applicant’s blood was ‘very high’. Dr Schreiber expressed the opinion that the effects of the drug of that level were ‘highly likely’ to impact on his driving, that his driving skills would have been adversely affected by the effects of the methamphetamine at that level, and that he would have been incapable of having proper control of a motor vehicle. Dr Schreiber also has expressed the opinion that the applicant’s risk-taking driving at excessive speed may be attributed to the effects of methamphetamine.
The charge of culpable driving is listed for a committal hearing on 13 February next. If the applicant is committed for trial, it is estimated that there would be a delay of some 14 to 16 months until the commencement of the trial.
The applicant’s background
The applicant, was born in Shepparton on 4 August 1996. He has six siblings. The applicant’s parents separated when he was 6 years of age, and the applicant remained in Shepparton with his father and three of his siblings.
The applicant’s upbringing was quite difficult, and it was punctuated by episodes of substantial family violence. As a result, the applicant, during his teenage years, was effectively homeless. It was in that environment that he became exposed to drug abuse, particularly methamphetamine. During the last 10 years he has, in effect, been addicted to that substance.
The applicant has a substantial criminal record, commencing with charges of burglary and theft that came before the Shepparton Children’s Court in April 2014. Since that matter, the applicant has appeared before the Shepparton Court on a number of occasions on charges including theft, intentionally damaging property, possession of methamphetamine, possession of cannabis, failing to answer bail, and committing an indictable offence while on bail.
On 29 March 2017, the applicant was before the Shepparton Magistrates’ Court on a number of such charges, including charges of dishonesty, possession of cannabis, possession of a drug of dependence, fail to answer bail (five charges) and committing an indictable offence while on bail (three charges). He was convicted and released on a Community Corrections Order for twelve months, on conditions which included that he undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
Subsequently on 27 August 2018, the applicant was before the Shepparton Magistrates’ Court on a number of charges, which included a charge of contravening the Community Corrections Order. The breach was found to be proven, and the Community Corrections Order was varied and extended for a further period of 12 months.
On 31 January 2019, the applicant was before the Shepparton Magistrates’ Court on a number of charges that included committing an indictable offence while on bail (three charges), failure to answer bail (six charges), obtaining property by deception (seven charges), attempt to commit an indictable offence (two charges) and theft (five charges). He was convicted and sentenced to serve a Community Correction Order for 12 months. One condition of the order was that he undergo assessment and treatment for drug abuse or dependency as directed.
On 7 February 2020, the applicant was again before the Shepparton Court on charges including a charge of contravening the Community Corrections Order. The Community Corrections Order was again confirmed, but no further order was made.
Outstanding matters
In the period of seven weeks immediately preceding the incident, which is the subject of the present charges, the applicant was intercepted on five occasions in respect of offences arising out of the driving of a motor vehicle. Before the accident, he had been charged with offences arising from the first such interception, and, subsequently, he has been served with charges arising from the other four interceptions.
On 13 February 2022, the applicant was intercepted driving on Wheeler Street, Shepparton at 77 kph in a 60 kph zone. A fluid sample, taken from him, was found to contain methylamphetamine. Subsequently on 31 March 2022, he was charged with a number of offences including driving a motor vehicle while exceeding the prescribed concentration of a drug, driving at a speed exceeding the speed limit, and being a learner driver without a supervisor driving beside him.
On 21 February 2022, the applicant was intercepted driving at speeds in excess of 100 kph in a 60 kph zone in Archer Street, Shepparton. Before the interception, he had overtaken two vehicles by travelling left onto the gravel shoulder of the roadway in a manner which was considered by police to be dangerous. A fluid sample taken from the applicant was found to test positive to the presence of methylamphetamine. On 30 May 2022, he was charged with a number of offences including dangerous driving, driving while exceeding the prescribed concentration of a drug, being a learner driver driving without a supervising driving sitting beside him, and driving at a speed that exceeded the speed limit.
On 27 February 2022, police again intercepted a vehicle driven by the applicant on Balaclava Road, Shepparton. A fluid sample, taken from him, when tested, confirmed the presence of methylamphetamine and Delta-9-tetrahydrocannibinol. Subsequently, on 12 May 2022, the applicant was charged on summons with driving a motor vehicle while exceeding the prescribed concentration of a drug, provision of a sample of oral fluid containing a prescribed illicit drug, and being a learner driver driving without a supervising driver sitting beside him.
On 5 March 2022, the applicant was intercepted by police after having driven on Archer Street, Shepparton. A fluid sample taken from him, on analysis, confirmed the presence of methylamphetamine. On 19 May 2022, he was charged on summons with offences of driving a motor vehicle while exceeding the prescribed concentration of drug, provision of a sample of oral fluid containing a prescribed illicit drug, and being a learner driver driving without a supervising driver sitting beside him.
Finally, at approximately 1:10 am on 9 March 2022, the applicant was intercepted by police while driving in a northerly direction on Dawes Road, Shepparton. He did not have a fully licenced supervising driver with him, and he did not have ‘L’ plates displayed front and rear. He was cautioned by the police and told not to continue driving. A little over one hour later, at 2:17 am, he was again intercepted driving on Fryers Street, Shepparton, this time without any vehicle lights operating. The applicant was subsequently, on 14 April 2022, charged with a number of offences involving being a learner driver driving without a supervising driver beside him, and driving a vehicle with ineffective headlights and ineffective tail lights.
Each of the five sets of summary charges are listed for a mention hearing in the Magistrates’ Court at Shepparton on 14 November next.
The bail provisions
It is common ground, that, as culpable driving is an offence listed in Schedule 2 of the Bail Act 1977, s4AA(3) requires that the applicant must demonstrate a compelling reason that justifies the grant of bail. Section 4D and s 4E provide that if the Court is satisfied of the existence of such compelling circumstances, the prosecutor bears the burden of establishing the existence of an unacceptable risk as defined in s 4E(1)(a) of the Act.
In this case, the respondent contends that the applicant has failed to establish the requisite compelling circumstances. The respondent further contends that, if bail were granted, there would be an unacceptable risk that the applicant would endanger the safety or welfare of others, that he would commit an offence while on bail, and that he would fail to surrender himself into custody in accordance with the conditions of his bail.
Section 3AAA and s 4C(3) of the Act provide that, in considering whether a compelling reason exists for a grant of bail, and s 4E(3) provides that in determining whether there is a relevant unacceptable risk, the Court must take into account surrounding circumstances. Section 3AAA specifies the surrounding circumstances which must be taken into account. They include (inter alia): the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant’s criminal history; the applicant’s personal circumstances, associations, home environment and background; any special vulnerability of the applicant, including being an Aboriginal person; the availability of treatment or bail support services; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence to be imposed should he be found guilty of the offence with which the applicant is charged.
In Re Ceylan,[1] Beach JA defined the phrase ‘compelling reason’ as follows:
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional. Such a requirement would place the bar at too high a level in a scheme where the exceptional circumstances test exists as the most onerous test under the Act. While the word ‘irresistible’ was used with reference to ‘compelling reasons’ in Plaintiff M64/2015, that was in the particular context of the statutory scheme then under consideration – a scheme which did not contain another test that was intended to be more onerous in different circumstances. While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.[2]
[1][2018] VSC 361.
[2]Ibid [47] (citations omitted).
In Rodgers v The Queen,[3] the Court of Appeal endorsed that analysis by Beach JA and summarised it in the following terms:
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised 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’.[4]
[3][2019] VSCA 214.
[4]Ibid [43] (Beach, Kaye and Ashley JJA).
Submissions
The principal circumstance, relied on in support of the application, is the availability to the applicant of residential care at a drug rehabilitation facility managed by Odyssey House. Mr Rosario Campione, a Team Leader – Admissions at Odyssey House, has provided a letter confirming that the applicant has been deemed suitable for admission to Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program. If the applicant were released on bail, he would be transported directly from custody to the Richmond office of Odyssey House, where admission documentation would be completed. It is anticipated that if the applicant were admitted to Odyssey House, he would remain in residential treatment for a period of up to one year and eight months. Mr Campione has stated that all residents are subject to random drug screens and are required to adhere to program rules of no drugs or alcohol, no violence, and no theft. If the applicant were to fail to adhere to any of the conditions prescribed by Odyssey House, or if he were to leave the program, the Informant would be advised.
In addition, if the applicant were released on bail, his mother, who is resident in Queensland, would be able to provide a surety of some $5,000.
Mr J. Hannebery KC, who appeared on behalf of the applicant, submitted that the availability of Odyssey House, and the fact that his mother would act as surety, would sufficiently reduce any risk of the applicant re-offending or endangering the community, or otherwise breaching his bail, to a level which would be acceptable. In support of the bail application, Mr Hannebery further relied on the anticipated delay in the resolution of the charges against the applicant, the more difficult circumstances for those in custody as a result of the current COVID-19 pandemic, the fact that this is the first occasion upon which the applicant has been remanded in custody, and the applicant’s lack of previous convictions for any serious driving offences.
In response, counsel for the respondent, Mr Johnson, submitted that the applicant had failed to demonstrate that there was a compelling reason for the grant of bail. In addition, it was submitted, that if the applicant were released on bail, there would be an unacceptable risk that he would commit further offences, that he would endanger persons in the community, and that he would fail to answer bail.
In particular, Mr Johnson noted that the offending in this case is a serious instance of a serious criminal offence. On its face, the prosecution’s case is strong. The applicant has a history of previous breaches of bail, and contravening the conditions of his bail. In addition, he has twice failed to comply with the terms of a Community Corrections Order granted to him.
Mr Johnson further submitted that while the proposed residential program at Odyssey House would reduce the risk of the applicant re-offending, nevertheless the risk would remain unacceptable. In particular, the applicant has an entrenched, long-standing history of abuse of drugs, and a more recent history of driving a motor vehicle without a licence, when affected by the consumption of drugs. The Odyssey House program is, in essence, a voluntary program, albeit that it does have some structure and supervision available. Nevertheless, the Odyssey House proposal would not of itself provide sufficient protection against the applicant engaging in conduct that breached the terms of his bail, and which endangered the community.
Accordingly, it was submitted that the bail application should be refused.
Analysis and conclusion
On analysis, to a significant degree, the same considerations apply both to the question whether the applicant has established a compelling reason for the grant of bail, and to the question whether the respondent has demonstrated that there would be an unacceptable risk that the applicant, if released on bail, would re-offend, endanger public safety or fail to answer bail.
As I have noted, the principal factor, relied on by the applicant in respect of both of those questions, is the proposal that, if he is released on bail, he would participate as an inpatient in the Odyssey House Therapeutic Residential Rehabilitation Program. That consideration is of particular importance in a case such as this. The proposal, that the applicant be admitted to Odyssey House, would provide to him an important opportunity to properly address his entrenched drug addiction, and to rehabilitate into society. In that way, it would materially reduce the risk of the applicant re-offending, and endangering other members of the community. It is clear that at some stage in his life, the applicant must undertake such a rehabilitative program, otherwise he will remain mired in a life dominated by his drug addiction, in which he would be very much a danger both to himself and the community.
That consideration is, it must be acknowledged, of particular moment in a case such as this. It is also relevant that the applicant is of Aboriginal heritage, being a member of the Yorta Yorta people. As this Court noted in HA (a pseudonym) v The Queen,[5] s 3AAA(1)(h) of the Bail Act is a recognition of the requirement that courts have a duty, in cases such as this, to be conscious of the need to avoid compounding the disturbingly high incarceration rates of our Aboriginal people, unless there is good cause to do so.
[5][2021] VSCA 64 [59].
On the other hand, in the present case, there are particularly strong considerations which individually, and in combination, militate against a conclusion that there are compelling circumstances in this case for a grant of bail, and, in particular, which support the conclusion that, if the applicant were released on bail, there would be a serious risk that he would endanger the community, and that he would commit an offence, while he was on bail.
The offence of culpable driving is, by its nature, a serious criminal offence, the maximum sentence for which is twenty years imprisonment. The present case is a particularly serious instance of that offence. It involved the applicant driving at an extraordinary high speed, at night, on a country road, while he was, to a significant degree, under the influence of methylamphetamine. Based on the evidence of Dr Schreiber and Sergeant Hay, it would seem that the prosecution has, at least prima facie, a very strong case for conviction of the applicant on the charge of culpable driving under both s 318(2)(b) and s 318(2)(d) of the Crimes Act 1958.
The applicant has a long-standing criminal history. It includes convictions for offences arising from his use of drugs. His history demonstrates that he has had a continued disregard for the law. Most relevantly, the applicant has a poor history of complying with the terms of previous grants of bail. On six occasions he has been convicted for failing to appear on bail, and on six occasions he has been convicted of committing indictable offences while on bail.
In that connection, it is relevant that the applicant has also twice breached the terms of a Community Correction Order on which he has been released. It is also relevant that, in the period of some two months preceding the incident that has given rise to the present charges, the applicant was intercepted on five separate occasions in respect of driving offences. On four of those occasions, oral fluid tests taken from him demonstrated the presence of methylamphetamine. Notwithstanding the fact that the applicant had been intercepted and detected driving while under the influence of methylamphetamine, he continued to do so on repeated occasions.
Each of those considerations are necessarily relevant to an assessment whether the opportunity now offered to the applicant by Odyssey House would have sufficient prospects of success, in addressing his entrenched drug problem, to constitute a compelling reason for the grant of bail, and also whether it would sufficiently offset the undeniable risk that, if the applicant were released on bail, he would re-offend, and would endanger the community.
It is that question which has given me cause for concern in the present case. As I have discussed, it is not only in the interests of the applicant, but also the interests of the community, that the applicant’s addiction to drugs, and in particular his addiction to to methylamphetamine, be successfully addressed. On the other hand, the factors, raised in response to the application for the grant of bail, are of particular moment. The program that is on offer at Odyssey House has had proven success in the past. However, participation in it is, essentially, voluntary. As the letter that was provided by Mr Campione makes clear, the staff of Odyssey House are not routinely involved in, or present at, off-site activities and appointments of the residents. While the residents are regularly accounted for, the therapeutic program is a voluntary program and residents are not under any direct staff supervision.
The fact that the applicant’s mother would act as a surety does provide some additional degree of assurance to the Court. However, the applicant’s mother resides in Queensland, and she would not be available to supervise him, as is ordinarily the case of a person who is prepared to undertake the role of surety.
In view of those considerations, I am not persuaded that the proposal, that the applicant attend Odyssey House for therapeutic treatment, is, of itself, a sufficiently compelling reason to justify the grant of bail in this case. Further, that consideration, on its own, is not sufficient to offset the otherwise substantial risk that, if the applicant were released on bail, he would endanger members of the community and would commit an offence while on bail.
The applicant did rely on other relevant factors in support of his application for bail. The principal such consideration is the fact that the applicant has not previously been remanded in custody or sentenced to a term of imprisonment. In that context, it is anticipated that the trial of the proceeding would not commence until at least late 2023, and more probably early 2024, which would constitute a delay of almost two years after the applicant’s arrest. In addition, some reliance was placed on the more difficult circumstances of imprisonment resulting from the current COVID-19 pandemic. It would seem that, in recent times, the various limitations, that had been imposed on prisoners, have been significantly removed, although there are still some restrictions on the ability of members of the public to visit those who are held in custody.
Each of those matters are relevant to the two questions that are under consideration, but they are of limited weight. The period of delay is unfortunate, but it is by no means excessive in all the circumstances. It must be acknowledged that while the current restrictions imposed on prisoners as a result of the pandemic have been eased, there is always the risk that, given the fluctuating nature of the pandemic, further restrictions might need to be imposed during the period in which it would be anticipated the applicant would remain in custody before his trial.
In conclusion, taking all those matters into account, and after having given this matter careful consideration, I am, regrettably, unable to conclude that the applicant has demonstrated a compelling reason why he should be granted bail. More significantly, I am persuaded that if the applicant were granted bail, there would be an unacceptable risk that he would endanger the safety of members of the community, and that he would commit an offence while on bail. For the sake of completeness, I am not persuaded that there is an unacceptable risk that he would fail to surrender into custody in accordance with the conditions of his bail.
For those reasons, the application for bail must be refused.
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CERTIFICATE
I certify that this and the 12 preceding pages are a true copy of the reasons for ruling of the Honourable Justice Stephen Kaye of the Supreme Court of Victoria delivered on 28 October 2022.
DATED this twenty eighth day of October 2022.
Associate
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