Re Froud
[2020] VSC 794
•27 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0296
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by NATHAN FROUD |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 November 2020 |
DATE OF JUDGMENT: | 27 November 2020 |
CASE MAY BE CITED AS: | Re Froud |
MEDIUM NEUTRAL CITATION: | [2020] VSC 794 |
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CRIMINAL LAW – Bail – 29 year old with significant criminal history – Charges of aggravated burglary, intentionally causing injury, assault and criminal damage – Two complainants being the applicant’s ex-partner and her new partner – Family violence – Seriousness of offending – Strength of prosecution case – Delay – Compelling reason not made out – Unacceptable risk in any case – Bail refused – Bail Act 1997, ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Applicant | Mr C Wareham | Daniel Taylor Lawyers |
HER HONOUR:
The applicant applies for bail in respect of charges of aggravated burglary (two counts), intentionally causing injury, recklessly causing injury, unlawful assault (two counts) and criminal damage. The offences were allegedly committed in the early hours of 14 October 2020.
The applicant was arrested on 14 October 2020, then charged and remanded on 15 October 2020. He has remained in custody since, having brought an unsuccessful application for bail in the Bairnsdale Magistrates’ Court on 16 October 2020. The learned magistrate refused bail on the basis that a compelling reason had not been shown to justify the grant of bail.
The charges are next listed for a committal mention on 6 January 2021. On that date it is expected that they will be listed to a nominal committal date of 17 February 2021. It is not expected that the committal will proceed on the latter date but be listed for committal on a later, unknown date in 2021. If committed to the County Court, the parties expect the applicant to stand trial during 2022.
It is agreed between the parties that bail must be refused in this case unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail. This is because the applicant is charged with Schedule 2 offences of the Bail Act 1977 (Act).[1]
[1]Items 22 (b) and 23 of Schedule 2, namely aggravated burglary and an indictable offence in the course of committing the applicant is alleged to have used an offensive weapon.
Background
In October 2020 the applicant lived in a unit on his mother’s property in Swifts Creek with his two year old son, M. His mother lived in the separate, but proximate, main dwelling. The applicant had the care of his son pursuant to an Interim Accommodation Order (IAO) made by the Children’s Court of Victoria.
The mother of M, Jessica Morgan, is one of the two complainants in this case. The relationship between her and the applicant was of some four years duration. It ended in late 2019. Ms Morgan states that the applicant does not accept that fact. Just prior to the alleged offending, she had commenced a relationship with Ben Boland, the second complainant.
The incident, according to the two complainants
At about 1.30am on 14 October 2020, the applicant attended Ms Morgan’s home in Bairnsdale. She and Mr Boland were in the master bedroom. Ralph Hanley and Tara Kinna were also in the house.[2]
[2]Ms Morgan refused to name her two housemates, but their identity is clear from the later statement of Mr Hanley, which is considered below.
Ms Morgan and Mr Boland state that they heard loud banging and kicking on the front door. Ms Morgan went to the door. When she asked who was there, the applicant said words to the effect of ‘It’s Nath. What have I done Jess? Let me in.’ Ms Morgan told him to go away. He did not and continued to shout. Ms Morgan states that she then went to Mr Hanley and asked him to deal with the applicant and get rid of him.
Ms Morgan states that she next heard a commotion at the door and a bang before being confronted by the applicant. When he saw her standing next to Mr Boland, the applicant said words to the effect of ‘that would be right, you got with Ben’. Ms Morgan then told him to leave her house.
The applicant moved to the kitchen. He said that he was going to kill himself. Mr Boland overheard someone say (to the applicant) ‘nah, put it down’ and the applicant say ‘where is the cunt?’ The applicant started to search the house for Mr Boland whilst Ms Morgan repeatedly shouted at him to leave.
Mr Boland, fearful that the applicant was looking for him, hid in the main bathroom. He put his back to the wall and braced his legs against the door to prevent it being opened. The applicant forced the top of the door open and began swinging a black handled knife towards Mr Boland’s legs. He then managed to force his way into the bathroom, pushing the door with such force that the door handle broke through the plaster wall. The applicant punched Mr Boland a number of times, including one blow to the eye that resulted in a fractured eye socket.
Together Mr Boland and Ms Morgan attempted to restrain the applicant, but the applicant used the knife to slash and stab at Mr Boland’s face. The blade sliced the skin above his right temple and eyelid and also penetrated the skin behind his left eye socket.
Ms Morgan then struck the applicant with a mop handle, causing it to break. The applicant grabbed her arm and pushed her away. He then punched Mr Boland several more times before saying words to the effect of ‘now run cunt’.
Mr Boland ran from the property before realising that his car keys were still inside. He was assisted by a neighbour to contact an ambulance.
The applicant followed Ms Morgan to her bedroom whilst yelling and swearing. Ms Morgan says that Mr Hanley told the applicant to leave. He did, shouting words to the effect of ‘if Ben doesn’t move that car by morning, I’ll kill his dog’.
Ms Morgan describes then hearing a loud hissing noise from outside. Three tyres on Mr Boland’s car were later found to have been slashed. She states that she was in shock and covered in Mr Boland’s blood.
The incident, according to Mr Hanley
Mr Hanley describes this sequence of events differently. In a police statement made at 5.50pm the evening before this application was listed, Mr Hanley stated that he lived at the Bairnsdale address with Ms Morgan and the applicant. He said that the applicant was generally away Monday to Friday working at the Swifts Creek timber mill, but would occasionally come back to Bairnsdale midweek. He said that at about 2.30am on 14 October, Ms Morgan got him out of bed to say that the applicant was at the front door and she would not deal with him. He then went to the front door and said words to the effect of ‘hey broz, how are you going?’ before opening the security door to allow the applicant in. He does not recall the applicant saying anything.
While Mr Hanley was walking back to his room, he saw another male named Kevin, who had been at their unit earlier that day. Mr Hanley stated that the applicant walked down the hallway and looked into the two bedrooms, laundry and toilet.
He said that when the applicant went to look in the bathroom, the door was pushed back and the applicant’s forearm was caught in it. That was followed by screaming and yelling and the applicant and the other man, Kevin, wrestling in the hallway, each pushing the other down the hallway past the bedrooms. He then went to his bedroom to comfort Ms Kinna. He heard yelling and screaming but didn’t see anything further. Later in the morning he checked that Ms Morgan was okay. She seemed so and he didn’t observe any injuries on her.
Arrest and investigation
Mr Boland was treated at Bairnsdale Regional Hospital for his injuries. They included a fracture to his eye socket and knife wounds which required stitching.[3] Ms Morgan sustained bruising to her arm. Mr Boland initially told police that he had been attacked by unknown males in the street, but at 9.31pm on the day of the incident provided a sworn statement, the contents of which are summarised above.
[3]The photographs of the injuries to Mr Boland were before me on the application.
The applicant was arrested on 14 October 2020 while working at the Dormit Sawmill in Swifts Creek. Police seized his work boots after observing visible staining on them. The staining returned a positive presumptive test for blood. The results of forensic testing are pending.
The applicant participated in a record of interview and denied his presence at the scene. He said he had been dropped home by his co-worker, John Strong, after finishing work at 11pm and remained home thereafter.
When contacted by police Mr Strong stated that he had driven the applicant home on the evening of 13 October 2020. He described the applicant as being very agitated and speaking on the phone with a number of unknown persons. Other colleagues at the sawmill told police that during his shift on 14 October 2020 the applicant said that he had ‘fucked up’ and believed the police would be coming for him.
On 28 October 2020, Tiahanna Warner made a statement to police in which she said that the applicant contacted her via Facebook Messenger ‘around’ 13 October 2020 and asked her to drive him to Ms Morgan’s residence. She did so sometime after 2.00am on 14 October 2020. She dropped him at the side of the house rather than the front. During the drive the applicant told her that he was suicidal and stressed about Ms Morgan’s drug use and new relationship.
Police later recovered CCTV footage from the APCO service station in Bairnsdale, about 1.5km from Ms Morgan’s address, filmed approximately 10 minutes before the alleged offending. It apparently depicts both Ms Warner and the applicant. The informant gave evidence that the applicant appears to be wearing boots consistent with the boots that were later seized by police.
On 16 October 2020 an interim Family Violence Intervention Order (FVIO) and an Personal Safety Intervention Order (PSIO) were imposed against the applicant to protect Ms Morgan and Mr Boland, respectively.
Applicable law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act mandates that a person accused of an offence and held in custody in relation to it is entitled to be granted bail unless the bail decision maker is required to refuse bail by the Act.
Section 4AA delineates the situations in which the show compelling reason test applies to a decision whether to grant bail. One of those, when the applicant is accused of a Schedule 2 offence, applies in this case.
Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[4] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[5] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[4]The Act, s 4C(2).
[5]The Act, s 4C(3).
The principles to be applied when considering the compelling test are three-fold. First, for an applicant to demonstrate a compelling reason, a synthesis of all relevant matters – including those identified in s 3AAA – must compel the conclusion that the applicant’s detention in custody is not justified. Second, it is not necessary for the applicant to show a reason which is irresistible or exceptional. Third, a compelling reason is one which is forceful and therefore convincing. That is, a reason which is ‘difficult to resist’.[6]
[6]Rodgers v The Queen [2019] VSCA 124, [43] (citations omitted) (Beach, Kaye and Ashley JJA).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that the there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[7]
[7]The Act, s 4E(3),
As the allegations against the applicant involve family violence offences,[8] s 5AAAA(2) of the Act mandates the Court to consider whether, if the applicant was released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.
[8]The Act, s 3 – definition of ‘family violence’ (the same as s 5 of the Family Violence Protection Act 2008 (Vic)) and ‘family violence offence’.
Personal Background
The applicant is 29 years of age. Prior to his remand he resided in a unit at his mother’s property in Swifts Creek with M. The main dwelling in which his mother lived is separated from the unit by a carport. He was employed full-time on an afternoon shift at the Dormit Sawmill. That employment has now been terminated.
The applicant has a history of cannabis and methylamphetamine use. His criminal history, considered below, reflects that. It seems from supervised urine drug screens undertaken as required by the DHHS that in the months leading to the alleged offending the applicant was largely drug free. However the applicant admits to some illicit drug use during that time.
In August 2018 the applicant was referred by his general practitioner to a psychologist, Ron Marshall, for treatment of anxiety. Since that time the applicant has attended over 20 sessions with Mr Marshall. A letter from Mr Marshall describes the applicant’s anxiety as stemming from his relationship with Ms Morgan and her drug use around M. In the context of the applicant’s concern for his child, Mr Marshall describes the applicant as ‘unusually insightful’ and ‘able to analyse his own behaviours and the effects that they might have on others’.
The Department of Health and Human Services (DHHS) has been involved with the applicant, Ms Morgan and their son from a very early stage in M’s life. M was born on 9 January 2018 and removed from Ms Morgan’s care in that same month as a result of concerns about her substance use and ability to care for him. He was placed in the care of Lesley Froud, the applicant’s mother, until October 2019 when he was returned to Ms Morgan.
The DHHS material before the Court indicates that it had received reports during 2018 that the applicant had committed family violence against Ms Morgan and demonstrated controlling behaviours which impacted upon M’s safety, stability and development. The applicant was incarcerated for six months from November 2018. A family preservation order was made on 15 October 2019, which required the applicant to participate in an anger management or men’s behaviour change program.
M was placed in the applicant’s care in July 2020 following the re-emergence of concerns about Ms Morgan’s capacity to provide a safe environment for him and additional concerns regarding M’s development. The applicant thereafter took his son to a speech therapist and commenced working with the Swifts Creek Community Centre Childcare to address M’s developmental issues.
On 16 October 2020 an emergency care application in the Bairnsdale Children’s Court resulted in an IAO placing M in the care of Lesley Froud.[9]
[9]The interim accommodation order allows for supervised visitation by Ms Morgan to M. To date Ms Morgan has not sought to exercise that right.
Criminal history
The applicant has an extensive criminal history commencing in 2007, when he was 16 years of age. His record includes convictions for trafficking and possession of drugs of dependence, recklessly causing injury, possession of explosives, firearms and prohibited weapons as well as dishonesty offences. In 2017 he was convicted of failing to answer bail. Between 2017 and 2019 he has been convicted of contravening a community correction order on four occasions. The applicant has received several custodial dispositions.
Evidence on the application
The informant, Detective Senior Constable Raymond Day, was called on the application. He detailed the evidence of Ms Warner, including that she took the applicant to the home of Ms Morgan at the time of the alleged offending. He also detailed other evidence supportive of Ms Warner, including the retrieval of the CCTV footage from the petrol station depicting both her and the applicant as well as call charge records (CCRs) which indicate movement of the mobile telephones of Ms Warner and the applicant from Swifts Creek to Bairnsdale at the relevant time. DSC Day also said that he would obtain a bank warrant to obtain the card details for transactions conducted at the station.
When asked about the crime scene, he said that the photographs showed damage to the bathroom wall consistent with the door handle going through the plaster. He also said that there was fresh plaster dust on the door handle.
He was also asked about the circumstances in which Mr Hanley made his statement. Mr Hanley attended the Sale police station unannounced and without prior appointment late on the day before the application was listed. DSC Day said that Mr Hanley had previously been requested to make a statement and had been extremely aggressive in his refusal to do so. DSC Day gave evidence that, in front of Mr Boland, Mr Hanley had said words to the effect of ‘only dogs make statements’. Mr Hanley had been adamant that he would not assist police. Mr Hanley also requested to see the statement of Mr Boland.
DSC Day said that Mr Hanley has an extensive criminal history and had been released from custody in 2020 after being sentenced to five and a half years for false imprisonment, recklessly causing injury and theft in relation to an incident involving two females which he described as a ‘torturing type’ offence.
DSC Day also detailed ‘inconsistencies’ in the 23 November statement of Mr Hanley. Mr Hanley states that he tried to call the applicant during the morning following the incident and left messages for him. The applicant then called him back later the same day. DSC Day said that CCRs show ongoing contact between the mobile telephone numbers of Mr Hanley and the applicant prior to the alleged offending. That contact ceased when the applicant was in Bairnsdale and did not resume until the afternoon of 14 October 2020. Information from the tower cells show that both mobile telephone services were ‘pinging’ from the same towers following the alleged incident. DSC Day said that he suspected that Mr Hanley drove the applicant back to Swifts Creek from Bairnsdale.
In cross-examination DSC Day agreed that the statement of Mr Hanley ‘cast a different light’ on the events in so far as the means by which the applicant gained entry through the front door, the absence of injuries to Mr Boland and the absence of blood on Ms Morgan were in issue. It might be noted, also, that Mr Hanley named the man in the house who wrestled with the applicant as Kevin and not Ben.
DSC Day was asked about the progress of the hand-up brief. He said that it would be served, as ordered, on 27 November 2020 but may not be complete. In particular the forensic analysis of the applicant’s boots, the transcript of the record of interview and some statements from police members may be forwarded at a later date. He said that the forensic examination of the boots was being done at a regional facility in Morwell and he did not know how long it would take. He had impressed upon that facility the urgency of the matter.
DSC Day accepted that evidence from mobile telephone towers that two services were ‘pinging’ together was not conclusive proof that the handsets were physically together. But he said that in Gippsland, the relevant towers were 150km apart and it was unlikely that simultaneous pinging could be explained in any other fashion. He said that he would obtain an expert statement to explain the evidence.
DSC Day was asked about some of the prior convictions of the applicant. He agreed that although there had been past reports of family violence perpetrated by the applicant, he had no convictions for any such offences. It was put and accepted that the explosives offence in 2018 related to fireworks. DSC Day agreed that the applicant had no convictions for violent acts using weapons. He said that the applicant had a fascination with knives. DSC Day could not comment on the suggestion that the 2017 conviction for failure to answer bail arose from being late in reporting. He agreed that the applicant had no prior history of interfering with witnesses.
DSC Day agreed that the complainants had criminal histories. He said that they both freely admitted their drug use.
In re-examination DSC Day was asked about further ‘inconsistencies’ in Mr Hanley’s statement. While Mr Hanley said that he stayed with Ms Kinna the morning after the alleged incident, CCRs show that her mobile telephone handset remained in Bairnsdale while his moved across east Gippsland. He also said that the CCTV footage from the petrol station was, in his opinion, clear. DSC Day said that Mr Boland told police that he had been attacked in the street as they arrived in response to the 000 call. He said that he has had multiple conversations with Mr Boland, who was in shock. He is extremely affected by the alleged offending and very fearful of the applicant’s release.
The applicant called Lesley Froud. She was a most impressive witness.
Ms Froud has a small farm. She is in receipt of a disability pension as a result of chronic fatigue syndrome. She lives in Swifts Creek, which is some 150km or one and a half hours drive from Bairnsdale. When the applicant was living in the unit next to her house, she said that she could sometimes hear activity from it.
Ms Froud described the applicant as difficult to have a conversation with when he was using drugs. Since he had obtained care of M, he ceased drugs and became a pleasant and considerate person. She said that she had spoken with M’s DHHS appointed worker who confirmed that if released on bail, the applicant can have contact with M.
Ms Froud said that she was content to have the applicant back. She said that she would not allow drugs on her property and if it came to a choice between M and the applicant, she would prioritise M.
Ms Froud described her medical condition, her work routine and the need to prepare her property for the upcoming bush fire season. She said that while the applicant was working at the saw mill and had full time care of M she did not ask much of him, but if he was released on bail she would ask him to do a great deal of physical work to assist her.
Ms Froud gave an undertaking to the Court that if the applicant was released on bail she would contact Victoria Police if she became aware that he had breached a condition of that bail. She described bail as a privilege and said that if that privilege was broken, it was not deserved.
In cross-examination, Ms Froud said that she was not aware that the applicant had left his unit on the night of 13 October 2020. She got up to attend to M at about 7am or 8 am the following day, then went to her farm and attended some horses at another location before returning home at about 11am. She saw the applicant then. She did not know if he was home when she left; she had assumed he was asleep. Ms Froud agreed that he could leave her property quietly. She said that he does not have a driver’s licence.
Ms Froud said that, like any other person, she would be away from the property for significant periods during the day.
Ms Froud said that she was unaware of any change in the applicant’s behaviour in the period leading to 13 October 2020 and did not know that the applicant had consumed drugs.
Applicant’s submissions
The applicant relied upon a combination of matters detailed in the affidavit of his solicitor and oral submissions to show a compelling reason and in resisting the respondent’s contention as to unacceptable risk. These were as follows.
First, the strength of the prosecution case. While conceding the alleged offending is serious, the applicant argues that there are triable issues in the matter. While no longer maintaining that he was not at the scene, the applicant points to the initial statement of Mr Boland that his injuries were caused by unknown assailants on the street and the statement of Mr Hanley which, if accepted, shows that the applicant was invited into the house[10] and was not in possession of a knife during his ‘wrestle’ with Mr Boland.
[10]In the absence of particulars being sought, there was some uncertainty as to how the Crown intended to particularise each of the two counts of aggravated burglary. Mr Brown stated that the two counts related to the ‘bathroom incident’ and not the applicant’s initial entry to the house.
Second, delay. The hand-up brief will be served on 27 November 2020 but will be missing significant evidence. The committal proper will take place at an unknown time in 2021 and the trial cannot be expected before 2022. Given the state of the evidence, particularly with respect to the invitation by Mr Hanley to the applicant to enter the house, the aggravated burglary charge(s) may not result in conviction. The delay is inordinate and there is a risk that the applicant will spend longer on remand than any ultimate sentencing disposition.
Third, stable accommodation and ties to the jurisdiction. The applicant has the support of his mother and a clear bond with his son. He would be of assistance to his mother in the running of her farm. The undertaking of Ms Froud is very powerful.
Fourth, the availability of treatment. If granted bail the applicant would continue to consult with Mr Marshall. He is also committed to remaining drug free to ensure his ongoing contact with his son. The DHHS would require him to submit to random supervised urine rug screening and also participate in counselling as directed.
Fifth, compliance with earlier grants of bail and the applicant’s criminal history. The applicant has been largely compliant with bail. His single conviction for failing to answer bail arose in the context of being late to report. He has limited prior convictions for offences involving violence and his prior offending exhibits a considerable nexus with his prior drug use. His abstinence is a protective factor.
Sixth, the risk posed by the applicant could be mitigated by conditions so as not to be unacceptable.[11] This includes a proposed curfew, requirement to not leave Swifts Creek (except in specified circumstances) and the undertaking of Ms Froud. Further, the FVIO and PSIO are already in place to protect Ms Morgan and Mr Boland respectively. Although they are both still resident in Bairnsdale, the applicant does not know their current addresses.
[11]A full suite of proposed conditions was detailed in the affidavit of the applicant’s solicitor.
Respondent’s submissions
The respondent argued that a compelling reason had not been shown and, in the alternative, there was an unacceptable risk that if released on bail the applicant would endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or fail to surrender into custody.
First it was put that the prosecution case was strong. Although Mr Hanley’s statement is at odds with the evidence of Ms Morgan and Mr Boland, there were many reasons to doubt its veracity. Further, the two charges of armed robbery related not to the entry of the applicant through the front door, but to the entry of the applicant into the bathroom. The alleged offending is very serious. Mr Boland suffered significant injuries and will likely have numerous scars across his face.
Second, although it was conceded that there would be delay in the matter, that delay would not be inordinate. On-line virtual committals had commenced in regional Magistrates’ Courts. The trial could be expected to take place in 2022. If convicted of the charges or the majority of them, the applicant could expect to serve a significant custodial sentence that would exceed any period on remand.
Third, the applicant has a significant criminal history. Although he has only one prior conviction for failing to answer bail, his four convictions for breaching community corrections orders shows a lax attitude towards court orders. Further, although that history has a limited number of prior convictions for violence, the alleged offending concerns family violence which is distinct. There are numerous past reports of family violence incidents.
Fourth, although Ms Froud’s undertaking should be accepted as genuine, there is a real issue as to her ability to know of a breach of bail should it occur. She did not know that the applicant had left the property on 13 October 2020. She did not know that he had used illicit drugs again.
Fifth, both Ms Morgan and Mr Boland are extremely fearful of the applicant.
Analysis
The two central, interrelated planks of the applicant’s submissions as to showing a compelling reason focused on the strength of the prosecution case and delay.
I am of the view that the prosecution case is strong. Despite their criminal histories and admitted drug use, there are reasons to expect that the evidence of Ms Morgan and Mr Boland will be accepted. The applicant has abandoned his statements in the record of interview that he was not present. How the prosecution may be permitted to use those statements at trial is a matter for the trial judge. The aggravated burglary charges – one on the basis of person present and one on the basis of having an offensive weapon – relate to the entry to the bathroom and not to the earlier entry to the front door. Mr Hanley’s evidence as to what occurred at the front door, even if accepted, is not relevant to those matters. The damage to the bathroom door and wall supports Mr Boland’s version of events and is at odds with Mr Hanley’s. If the forensic results of the applicant’s boots show the presence of Mr Bolan’s blood, the case will be strengthened further. And, for the reasons articulated by DSC Day in his evidence and summarised above, there are reasons why it is to be expected that Mr Hanley’s evidence generally might not be accepted.
The charges of intentionally causing injury, recklessly causing injury and one of the assault charges are laid as alternatives with respect to Mr Bolan. The injuries he suffered are significant and required serious medical attention. In combination with the evidence before me describing the applicant deliberately searching for Mr Bolan after discovering him with Ms Morgan and arming himself with a knife, it is likely that the most serious of those charges can be proved.
It follows that the offending alleged is extremely serious. It is accurately described as family violence, seemingly springing from the applicant’s possessiveness of Ms Morgan and jealousy of Mr Bolan. In my view, given the offending itself and his poor criminal history, the applicant is likely to receive a significant custodial sentence.
The likely delay is an important matter to which I give full weight. Given the interruptions to court schedules over the past nine months due to the COVID-19 pandemic, is impossible to predict with any accuracy the length of that delay. I act on the agreed position between the parties that should the matter not resolve, the trial will take place sometime during the calendar year of 2022. It is therefore possible that if not granted bail, the applicant will have been in custody for little over two years before his trial. While that is a lengthy time on remand, it seems to me that it is unlikely to exceed the period of the term of imprisonment that would be imposed should the applicant be found guilty.
As I am required to do, I also consider that there is a risk that the applicant would, if released on bail, commit family violence. Although he has no prior convictions for family violence, the DHHS has previously required him to attend programs to address his violence. I also note that Victoria Police received five reports of family violence by the applicant throughout 2019 and 2020. These can be briefly summarised as follows:
(a) On 12 March 2019 it was reported that Ms Morgan and the applicant had been having daily arguments about financial stress. The applicant threw a dryer onto the front lawn and yelled at Ms Morgan for not doing the dishes. The matter resolved by the applicant moving from the address.
(b) On 5 April 2019 the applicant was serving a term of imprisonment. Ms Morgan then had care of M. Police made an application for a FVIO on behalf of Ms Morgan upon receipt of information that the applicant blamed her for his incarceration and planned to take this out on her upon his release.
(c) On 17 July 2019 Ms Morgan had gone into crisis accommodation with M. The DHHS required her to apply for an intervention order against the applicant after he threatened to kill her and M. Ms Morgan said that the applicant forced her to use ‘ice’ and would not allow their relationship to end. The applicant was later found at the crisis accommodation. Victoria Police sought a full intervention order to protect Ms Morgan.
(d) On 20 September 2019 Ms Morgan and the applicant had a heated verbal argument. A third party called police. Upon attendance both of them stated that there were issues with other family members. No further action was taken.
(e) On 13 March 2020 Ms Morgan’s parents reported that she was limping and said that the applicant had fallen on her. She also said that he had damaged her phone, was stalking one of her male friends and had threatened to kill him. Ms Morgan denied the allegations to police.
I note that there is no evidence before me as to the success of these applications for FVIOs or their longevity or revocation, as the case may be.
As already noted, there is a FVIO in favour of Ms Morgan and a PSIO in favour of Mr Bolan. And, the applicant does not presently know their whereabouts.
However, given this reported history – both of family violence and the obtaining of court orders – the incident itself and its apparent motivation, I am of the view that the FVIO does not mitigate the risk of the applicant committing family violence. He has previously found Ms Morgan at crisis accommodation. He has a history of breaching court orders, both bail and community corrections orders. And, his anxiety for which he consults Mr Marshall stems from his relationship with Ms Morgan.
The applicant has seemingly largely abstained from illicit drugs for some time and he is to be commended for doing so. And although his past criminal history may have a strong nexus with his drug use and his sobriety may augur well for a break in the cycle of his criminal offending generally, there is no nexus between his drug use and family violence. There is no suggestion of such a connection in the past reports of family violence. There is no suggestion that the alleged offending was drug induced.
Further, although I accept the evidence of Ms Froud and her undertaking, it is unrealistic to expect that she would be aware of any intention on the part of the applicant to commit family violence. She was not aware of his mental state on 13 October 2020. She was not aware that he had left the property. While I do not doubt that she would immediately honour her undertaking if she became aware that the applicant had breached any bail conditions, I am concerned here with the risk of the applicant committing family violence, and not what might occur in its aftermath.
It follows from the combination of these matters that I am of the view that the applicant has failed to demonstrate a reason that is forceful and convincing so as to justify the grant of bail.
Given my conclusion that the applicant has failed to demonstrate a compelling reason, I need not consider the second step of considering whether the respondent has demonstrated that the applicant would pose an unacceptable risk of any of the s 4E(1)(a) conduct. However, for the sake of completeness I note that, given my conclusion as to the risk of family violence, I would have concluded that the applicant poses an unacceptable risk of committing an offence while on bail or interfering with witnesses. For that reason also, I would have refused bail.
Conclusion
For the reasons I have stated, the application for bail must be refused.
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