Re Gapes
[2022] VSC 287
•1 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0118
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by JACK GAPES |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2022 |
DATE OF JUDGMENT: | 1 June 2022 |
CASE MAY BE CITED AS: | Re Gapes |
MEDIUM NEUTRAL CITATION: | [2022] VSC 287 |
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CRIMINAL LAW – Bail – Applicant charged with multiple sexual offences, false imprisonment, reckless conduct endangering life and other offences – Complainant a sexual partner of the applicant – Applicant subject to two community correction orders at time of alleged offending – Applicant on summons for breaching both community correction orders at time of alleged offending – Applicant respondent to two family violence intervention orders at time of alleged offending in which the protected person is a former sexual partner – Applicant has prior convictions for breaching family violence intervention orders – Whether exceptional circumstances exist that justify the grant of bail – Whether applicant an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail, interfering with a witness or otherwise obstructing the course of justice or failing to surrender into custody – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Casey | Gallant Law |
| For the Respondent | Mr A Malik | Office of Public Prosecutions |
HER HONOUR:
By application dated 11 May 2022 the applicant seeks a grant of bail.
On 5 January 2022 he was arrested and charged with the following 17 offences, alleged to have occurred between 1 November and 22 December 2021:
· Rape (three charges);
· False imprisonment (two charges);
· Unlawful assault (two charges);
· Threat to inflict serious injury;
· Threat to damage property;
· Threat to commit a sexual offence (two charges);
· Reckless conduct endangering life (four charges); and
· Assault with intent to commit sexual offence (two charges).
He was remanded in custody.
On 28 March 2022 the applicant was refused bail in the Warrnambool Magistrates’ Court.[1]
[1]The learned magistrate was satisfied that the applicant had demonstrated exceptional circumstances justifying the grant of bail but found him to be an unacceptable risk of endangering the safety of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
The charges are listed for committal hearing on 24 November 2022.
Alleged offending
Background
At the time of the alleged offending, the applicant lived in a unit on his parents’ property in Winslow. The complainant (TM) resided with a housemate, ZW, and their two young children in Warrnambool.
The applicant and TM first met in October 2021 when she invited him to her home after they had been in contact on social media. They commenced a casual sexual relationship. That involved consensual sex ‘most nights’. The sex often involved rough behaviour, the use of implements such as whips and TM being tied up.
Charge 1
Sometime in November 2021 the applicant and TM argued about her having sex with another man. The applicant yelled words to the effect of ‘how could you do that? You’re mine’. He then grabbed TM by the throat as she lay on the bed and tried to force his erect penis into her mouth. TM resisted, closed her mouth and turned her head away but the applicant straddled her chest, grabbed her by the hair and forced her mouth open with his thumb before inserting his penis in her mouth. He moved his penis in and out of her mouth for several minutes before ejaculating and saying something like ‘good girl’.
Charges 2-7
On 21 December 2021 the applicant was with TM at her house when she received a message from an ex-partner, Mr Lane. This angered the applicant. After the applicant calmed down and left, TM blocked the applicant on social media. She told him that she’d had sex with someone else, that their relationship was over and to leave her alone.
Over that day and the next the applicant re-attended TM’s house three times. ZW told him to leave whilst TM remained inside.
Then, at about 3pm on 22 December 2021 the applicant called TM from the front of her house and asked to talk. TM went outside and entered his car. The applicant drove off immediately. TM demanded he stop the car or take her home. Instead, over the course of the afternoon, the applicant drove around while threatening and verbally abusing her. He demanded TM tell him with whom she had had sex and she continue the relationship with him.
TM felt panicked. She cried, insisted that the relationship was over and begged him to take her home. The applicant achieved speeds of up to 200 kilometres per hour, threatened to run the car off the road and swerved onto the wrong side of it. While driving, he grabbed TM by the hair and placed her in a headlock. He held her arm as she tried to exit the car and threatened to hit her with the car if she got out. The applicant threatened to ‘run through’ TM’s house and destroy her things. He blamed ZW for influencing TM to end the relationship and threatened to harm ZW. He threatened to sexually assault TM, stating words to the effect of ‘if you want to treat me like a dog, I’m going to treat you like a dog and take you out to the bush, bend you over my ute and fuck you in the arse’. The applicant also threatened to kill himself if TM called the police.
Throughout this period the applicant’s demeanour swung between calm and angry as TM attempted to calm him. He eventually agreed to take her home but became angry again after receiving messages from ZW and Mr Lane asking about TM. TM told the applicant that she would not tell anyone about the incident if he took her home, but he refused to do so.
Charges 8-17
The applicant drove to TM’s house and permitted her to go inside to collect her phone and clothes. When TM returned to the car, the applicant snatched her phone out of her hand and said ‘I’m going to find out who you slept with.’ TM agreed to go with the applicant to his house, fearing that he would otherwise harm ZW who was at home with her young daughter.
At about 7pm the applicant and TM arrived at Winslow. The applicant’s parents, sister and daughter, LG, were present. TM played with LG in the applicant’s unit until he became angry at her refusal to provide him the password to her phone. He said words to the effect of ‘I’m going to find out, whether I have to choke it out of you’. TM took this to be a reference to the identity of the man with whom she had had sex. The applicant then took his daughter back to the main residence on the property.
Upon the applicant’s return, he pinned TM’s neck against a bench with a broom handle. She panicked and said ‘I can’t breathe’. The applicant released TM and then bound her wrists and one leg with a thick brown rope. TM begged to be untied after her hands started turning purple.
Whilst TM was still tied up, the applicant pulled his erect penis out of his shorts and tried to open TM’s mouth. TM pressed her lips together and turned her head. The applicant called her a whore and told her to ‘take it’ before pushing her on her back and threatening to anally penetrate her. He partially pulled her pants down and tried to insert his penis into her anus but TM resisted. To avoid being anally penetrated, TM told the applicant he could have vaginal sex with her.
The applicant then lifted TM onto a couch and vaginally penetrated her with his penis as she lay motionless, still tied up. After the applicant had ejaculated into TM’s vagina, he scooped his semen out and put it in TM’s mouth. He then untied her, walked her to the bathroom and said words to the effect of ‘wash your disgusting pussy’.
They both entered the shower. TM told the applicant that he was disgusting and her other sexual partner had ejaculated in her mouth. The applicant then pinned TM against the wall by her mouth and throat, aimed the shower head at her and said words to the effect of ‘wash your disgusting mouth’.
Later that evening TM ran from the applicant’s unit to his car. He caught up with her before she could leave and pulled her by the hair back to his unit. Throughout the night the applicant continued to verbally abuse and threaten TM. TM said ‘what if the guy [with whom she had had sex] was one of your friends?’. This caused the applicant to grab and squeeze TM’s throat and scream in her face. The applicant attempted to lift her up by the throat before slamming her neck on the bed. He then apologised, said he loved TM before inserting his penis into her vagina. The applicant ejaculated inside her, rolled over and went to sleep. TM did not speak or resist as she felt exhausted and helpless.
Whilst the applicant was asleep, TM attempted to retrieve her phone from underneath his pillow, but this woke the applicant and he demanded she lie down. At about 4 am she was able to grab her phone. She advised ZW that she was okay and would return in the morning.
When the applicant woke he took TM’s phone from her but after she said ‘I didn’t sleep with anyone. I love you. I won’t tell anyone’, he returned it and drove her home. The applicant asked ‘what have you learnt?’. TM replied ‘not to hurt you and that I love you and not to tell anyone’.
When she got home TM was distressed and complained of the entire incident to ZW. Together they attended Warrnambool Police Station to make statements. When there, TM briefly went out to her car and saw the applicant sitting in his car across the street. When police went outside to arrest him, the applicant had driven off.
Investigation and arrest
On 23 December 2021 police executed a search warrant at the Winslow address. A brown rope, a bed sheet and pillow cases were seized. The applicant was not present. His parents, who were, were unaware of his whereabouts.
On 24 December 2021 police called the applicant who advised them that he would hand himself in on 27 December. He did not. The applicant sent TM numerous messages and said ‘the police won’t find me. I’m in a shed with cameras surrounding me and will see them coming from a mile away’.
On 31 December a charge and warrant was issued for the applicant’s arrest. His image was published in the media.
On 5 January 2022 the applicant was located and arrested by police. He was found in possession of two phones. He would not provide a PIN to one and denied knowledge of the other before admitting them both to be his. He subsequently made a no comment record of interview.
Applicant’s personal circumstances
The applicant is 25 years of age. His upbringing was stable and he is the only son of his parents in a sibship of five.
The applicant is dyslexic and suffered bullying at school as a result. He completed year 12 in 2014. Subsequently he worked on his parents’ dairy farm until it was sold about six years ago. Thereafter he worked as a driver, maintenance officer and welder prior to his remand. Currently he works in the prison kitchen.
The applicant has a two year old daughter LG. She and her mother, Deanne Fiasco, are the protected persons by a Family Violence Intervention Order (‘FVIO’) made on 16 July 2021. That order prohibits inter alia the doing of family violence by the applicant but does not prohibit all contact. Prior to the applicant’s remand, LG was often looked after by the applicant and his parents through an ‘agreed care arrangement’. At the hearing of the application, the applicant’s father gave evidence that Ms Fiasco and LG were currently living in the unit on the Winslow property. He stated that Ms Fiasco had arranged for an application to vary the FVIO to be listed in the Magistrates’ Court to remove the 200 metre condition[2] so that she and the child could continue to live in the unit in the event that the applicant was granted bail to reside in the main house with his parents and two of his sisters.
[2]The FVIO presently has a condition preventing the applicant from being within 200 metres of the residence, work, school or childcare of Ms Fiasco and LG.
There is evidence before the Court from the applicant’s GP, Dr Heidi Cutting, that the applicant has issues with anxiety with depression and dependent personality traits. Dr Cutting states that since he was about 15 years of age, the applicant has used cannabis, benzodiazepines, methylamphetamine and alcohol ‘to manage his mental health issues’ and ‘to deal with acute life stressors’. He has exhibited suicidal ideation since 2018 and made a suicide attempt in March 2021.
He has had periods of sobriety, including following his release from prison in July 2021. At that stage Dr Cutting stated that he presented as ‘calm, with clear thinking’ and he feared drug relapse. Thereafter his anxiety worsened and he relapsed into methylamphetamine use and a new relationship (with TM). That anxiety was associated with issues arising with Ms Fiasco and caring arrangements for LG, his perception of how others viewed him after being in prison and lacking motivation to seek employment and complete routine activities of daily living.
There is also evidence before the Court from a psychologist, Sandra Cokorilo who authored a report dated 21 March 2022 as to the applicant’s psychological function and risk of reoffending (amongst other things) following a clinical assessment on 15 February 2022. That report was prepared with respect to the unsuccessful bail application in the Magistrates’ Court on 28 March 2022.
Ms Cokorilo stated that the applicant demonstrated ‘poor insight into the troubling patterns of his intimate relationships, seemingly unaware of the extent of his own contribution’. She noted that nonetheless the applicant did ‘acknowledge his challenges with emotional regulation and recognises that AOD [Alcohol and Other Drugs] and mental health interventions would be helpful’.
The applicant’s risk of reoffending is assessed as ‘high’. Ms Cokorilo based this on the applicant’s ‘priors arising from breakdowns of past intimate relationships, history of polysubstance use, and emotional and personal factors, including impulsivity and poor self-regulation’. However, some of the applicant’s risk factors are amenable to treatment and his Stimulant and Cannabis Use Disorder was in ‘enforced remission by the virtue of imprisonment’ at the time of the assessment.
Ms Cokorilo further stated:
It is understood that he has strong support from his family of origin with whom he has stable accommodation, and offer (sic) to return to his previous employment. He appeared genuine in his commitment to reform his lifestyle to improve his future prospects. He displays positive attitudes towards intervention, and has demonstrated willingness to engage in therapy. The concern is that he lacks internal resources to establish and maintain necessary changes unless he is provided with access to intensive long-term support to address entrenched personality traits.
Prior criminal history
On 26 February 2018 the applicant received a non-conviction disposition for criminal damage. He was ordered to engage in his then mental health care plan.
On 11 June 2019 the applicant was convicted of persistent contravention of a FVIO and threat to kill with respect to a former partner, Liana Burton. He was placed on a 12 month Community Correction Order (‘CCO’) with conditions of supervision, treatment and rehabilitation for drug and alcohol abuse and dependency, mental health assessment and attendance at programs to address reoffending, such as men’s behaviour change.
On 9 April 2021 the applicant was convicted of intentionally damaging property, unlawful assault, committing an indictable offence whilst on bail and persistent contravention of a FVIO. He was sentenced to a 12 month CCO with conditions of supervision, treatment and rehabilitation for drug and alcohol abuse and dependency and mental health assessment as well as 75 hours of unpaid community work.
On 16 July 2021 the applicant was convicted of two charges of persistent contravention of FVIO and two charges of contravention of FVIO. The complainants were Ms Fiasco (in respect of offences committed between April and May 2021) and Ms Burton (in respect of offences committed between 6-12 May 2021). He was sentenced to an aggregate sentence of imprisonment of 58 days and an 18 month CCO with a condition to perform 100 hours of community work. That conviction also breached the CCO imposed on 9 April 2021. The original CCO was varied to a 18 month CCO with conditions of supervision, treatment and rehabilitation for drug and alcohol abuse and dependency and mental health assessment as well as completion of a men’s behaviour change program or other recommended program. The supervision and treatment and rehabilitation conditions had an intensive compliance period of six months.
At the time of the alleged offending, the applicant was on summons for breaching both CCOs imposed on 16 July 2021. Those breaches relate to various non-attendances and the return of positive urine drug screens, including on 26 November 2021 for both cannabis and methylamphetamine.
Prior family violence history
As is apparent from the foregoing, the applicant is the respondent to a number of FVIOs.
The first was made on 14 March 2019 in favour of a former partner, Ms Burton. The order was made to 2060.
The second was made on 16 July 2021 in favour of Ms Fiasco and LG. The term of that order is two years.
Following the alleged offending, a third FVIO was made in favour of TM on 6 January 2022. The term of that order is 12 months.
It was the agreed position of the parties that the breaches of the various FVIOs reflected in the criminal history of the applicant concerned verbal abuse, menacing telephone contact and intimidating physical behaviour, but did not involve physical assault.
Legal considerations
The applicant is charged with rape, a schedule 2 offence,[3] alleged to have been committed during the period of a CCO for another schedule 2 offence, persistent contravention of a FVIO.[4] Accordingly, bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[5] In determining whether exceptional circumstances exist, the Court must take into account the relevant surrounding circumstances, including those prescribed in s 3AAA(1) of the Act.
[3]Bail Act 1977 (Vic) (‘Act’), Schedule 2, item 9.
[4]Act, Schedule 2, item 19.
[5]Act, ss 4AA(2)(c)(iv), 4A(1A) and 4A(2).
The meaning of exceptional circumstances is well known. The circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[6] In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1).[7] The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[8]
[6]Act, s 4E(1).
[7]Act, s 4E(3)(a).
[8]Act, s 4E(3)(b).
Section 5AAAA(2) of the Act requires the Court to consider whether, if the applicant were 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 a condition or the making of a FVIO.
The Court must also take into account the guiding principles set out in s 1B(1) of the Act.
Applicant’s contentions
The applicant argues that a number of circumstances combine to produce exceptional circumstances.
The applicant accepts that the alleged offending is serious and he has a relevant criminal history. However, he argues that his prior offending is of a less serious nature and does not include any sexual offences or threats to commit sexual offences, reckless conduct endangering life or false imprisonment. Nor does his prior history relate to TM.
It was submitted that there are triable issues in the prosecution case and certain of the charges suffer significant weaknesses. In short form it was submitted that the credibility and reliability of TM will be a major issue in the trial. It is not necessary to exhaustively detail the arguments made, but they included the following:
(a) With respect to the allegation of false imprisonment, TM voluntarily entered the applicant’s car and had numerous opportunities to get out.
(b) With respect to the allegation of reckless conduct endangering life, there is no eyewitness or camera footage to support TM’s claim that the applicant drove at speeds of up to 200 kmph or otherwise erratically. The informant, who gave evidence on the application, stated that the model of car driven by the applicant was not capable of achieving 200 kmph.
(c) No injuries were observed to TM by either ZW nor by the medical examiner who conducted a full-body and genital examination. There were none of the common indicia of strangulation nor injuries on TM’s wrists.
(d) There is material in the hand-up brief suggesting that TM engaged in consensual sexual activity with the applicant on two occasions, several days after the alleged incidents of 22 December 2021. Further, there were communications between TM and the applicant from which the applicant may have formed a belief that TM was sexually gratified by domination and rough behaviour. That raises a real issue as to the applicant’s belief in consent to penetration.
The applicant also referred to the issue of delay. He will have been in custody some ten months before his committal hearing and it is anticipated that his trial will not be heard before late 2023. This delay is said to be significant when considered in conjunction with the alleged weaknesses in the prosecution case and the onerous conditions in custody as a result of COVID-19.
Next, the applicant relies upon his vulnerability to deteriorating mental health in custody on the basis of medical and psychological evidence before the Court. That material is referred to above. Further, the applicant relies upon a letter dated 9 June 2021 from Dr Erin Gordon, the GP of LG and Ms Fiasco who opined that the applicant’s then incarceration had a detrimental effect on both her patients.
Further, the applicant argued that if granted bail, he will be able to access various supports. There are letters from Dirk Lynzaat of Onshore Counselling. The first, dated 15 December 2021 notes the applicant’s attendance at six counselling sessions in 2021. The second, dated 25 March 2022 (prepared with respect to the applicant’s unsuccessful application for bail in the Magistrates’ Court) indicated two scheduled appointments in the event that bail was then granted. The third, dated 20 May 2022, (prepared with respect to this application) indicated two further scheduled appointments in the event that bail was granted. The applicant further relied on the supports offered through the CCO and the Court Integrated Services Program (‘CISP’). With respect to the latter, there is a letter dated 24 May 2022 from the CISP Remand Outreach Program stating that an initial treatment and support plan has been arranged. That plan includes assessment for substance and alcohol abuse issues, attendance at a GP for a full mental health review, encouragement to contact a men’s referral service and discussions regarding other appropriate courses and educational programs.
It was submitted that the applicant cannot have his outstanding treatment needs met in custody and he is now in a markedly different position to take advantage of the supports available in the community from that immediately prior to his remand because he is drug free, has had a period to reflect and has gained a clear understanding of what will happen if he breaches his bail conditions. This included the completion of a 6-hour ice use program whilst in custody.
The applicant also relies upon the availability of employment and the support of his family. The applicant has an offer of part-time employment in welding. As noted above, his father gave evidence on the application as to the proposed living arrangements and other supports for the applicant.
Finally the applicant relies upon his parents’ offer of a $15,000 surety by way of equity in the family home. The applicant’s father gave evidence that this is a substantial amount in the context of the family’s finances and that this has been explained to the applicant.
As to the issue of risk, the applicant relies upon the same surrounding circumstances and argues that the risk he poses can be rendered acceptable by the imposition of stringent conditions of bail. One such proposed condition is that the applicant have only one mobile phone and provide that number to the informant and present the phone for inspection to the informant as and when required.
Respondent’s contentions
The respondent submits that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail.
It is argued that the allegations are a serious example of family violence offending. TM was subjected to a sustained attack over many hours and was repeatedly raped and assaulted. Further, the respondent submits that the prosecution case is strong and refers, particularly to the consistent and immediate complaint evidence. It is argued that if found guilty of the serious offences, the ultimate sentence will exceed any period of remand and, consequently, the issue of delay is of less relevance. The triable issues referred to by the applicant may become clearer following the committal hearing in November 2022.
The respondent also argued that the criminal history of the applicant is poor and shows escalating family violence offending against three ex-partners. The applicant has demonstrated a poor attitude to court orders, both bail orders and FVIOs. He has breached a FVIO on six occasions.
While the applicant has a supportive family and offer of employment, the respondent submitted that the proposed bail address was the location of the alleged offending, albeit in the main house rather than the unit, and the evidence of the applicant’s father demonstrated that he was unaware of the applicant’s drug abuse and whereabouts in late 2021. With respect to the prospective support of Warrnambool Community Correctional Services if the applicant reengages with the CCO, the respondent noted that the applicant’s case manager has recommended that the CCO be cancelled and the applicant re-sentenced. In any event it was submitted that given the high risk of reoffending assessed by Ms Cokorilo and the identified need for intensive long-term support, the proposed community supports are simply insufficient to mitigate the risks the applicant poses.
Finally, the respondent relied upon the fact that TM has told police that she is extremely afraid for her safety as the applicant has allegedly threatened to find and kill her. TM indicated that if the applicant was granted bail, she and ZW would move from their home.
As to risk, the respondent submitted that the applicant was an unacceptable risk of all s 4E(1)(a) factors. He has a significant history of family violence offending and breaching FVIOs. This coupled with the serious, violent and sexual offending detailed in the allegations demonstrates the nature of the risk that he will endanger the safety and welfare of any person. The unacceptable risk of the applicant committing an offence whilst on bail is demonstrated by his history of poor compliance with both bail conditions and FVIOs. The respondent relies upon the applicant’s evasion of police in December 2021 and January 2022 to demonstrate the risk of the applicant failing to surrender into custody. And the respondent points to messages sent by the applicant to TM requesting her to withdraw her statement as well as his history of FVIO breaches to demonstrate the applicant’s risk of interfering with a witness or otherwise obstructing the course of justice.
Analysis
I am not satisfied that the applicant has demonstrated the existence of exceptional circumstances that justify the grant of bail.
The allegations are very serious. The matters raised by the applicant with respect to the strength of the Crown case are routine. Some charges appear stronger than others. There are, apparently, some factual inconsistencies. There is an absence of evidence of physical injury where, perhaps, one might expect there might be such evidence. The importance of the credibility and reliability of the complainant is common to many criminal trials involving sexual assaults. Whatever the matrix of issues relevant to the testing of the ability of the prosecution to prove the charges beyond reasonable doubt, the charges are not weak and nor did the applicant argue they were.
Further, in light of the likely sentence in the event that the applicant is convicted of the more serious charges and that a trial can be expected to be heard in late 2023, the delay does not particularly advance the applicant’s argument.
While I accept that the applicant, as a result of his incarceration, is currently drug free, and in a better position to take advantage of supports available to him than he sometimes has been, I am of the view that the identified supports are insufficient to meet his complex and entrenched needs.
As noted above, in July 2021 he was released from prison, sober and with clear thought and with the supports detailed in paragraph 40 above available to him. In my view, a proposed similar situation, albeit after a longer period of remaining drug free in custody and acquiring some understanding of ice use, does not, alone or in combination, produce exceptional circumstances. That is so despite the offer of employment and the proposed living arrangements.
In this regard I note that although I found the applicant’s father to be an honest witness wanting the best for his son, I do not have confidence that Mr Gapes senior would be able to recognise the symptoms of drug relapse. And, despite the assertion from the bar table by the applicant’s counsel, there is no evidence of the capacity of the applicant’s mother or sister to superintend his movements or progress.
Although I accept that the offered surety of $15,000 is a significant sum for the applicant’s parents, the prior history of the applicant reveals that he is often motivated to act with self-interest and entitlement. I have little confidence that negative financial consequences for his parents would deter the applicant from breaching bail conditions.
Even if I had come to a different view as to the existence of exceptional circumstances, I would still have refused bail on the basis that the applicant poses an unacceptable risk of the s 4E(1)(a) factors.
The applicant has a high risk of reoffending. He has demonstrated scant regard for court orders, be they CCOs, FVIOs or bail orders. Further, I note that the allegations involve family violence and the applicant has an established history of family violence against two previous partners. Whatever the specifics of the allegations, the applicant’s attitude of entitlement towards intimate partners is troubling. Specifically with respect to TM, the messages sent to her by the applicant on various social media are of concern, both in their number and content. For example, there are instances of the applicant sending TM multiple threatening messages such as ‘answer the phone fuck’ and ‘If you don’t answer I’ll come there ad fucking lose it I’m sick of your shit.’ There are also occasions where the applicant threatens that he will suicide if she does not respond. On one occasion the applicant stated that TM was his. He also told TM that she needed to ‘drop the statement’ and that ‘sending the man you love to jail fir years is wrong !!!!’.
I am further of the view, in light of the applicant’s history, that the risk the applicant poses cannot be rendered acceptable by the imposition of bail conditions. Whilst the proposed mobile phone audit condition might go some way to mitigating risks related to the applicant contacting his former partners, I note the evidence of the informant that an inspection of the phone might not reveal any hidden applications, and that it would not in any event stop the applicant from getting another phone.
In addition to consideration of the s 4D(1)(a) factors, I am of the view, pursuant to s 5AAAA(2) of the Act, that if the applicant were released on bail there would be a risk that he would commit family violence and that that risk cannot be satisfactorily mitigated by the imposition of a bail condition or a FVIO.
Conclusion
It follows that bail must be refused.
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