Re Gentile
[2021] VSC 467
•6 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0185
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by DANIEL GENTILE |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2021 |
DATE OF JUDGMENT: | 6 August 2021 |
CASE MAY BE CITED AS: | Re Gentile |
MEDIUM NEUTRAL CITATION: | [2021] VSC 467 |
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CRIMINAL LAW – Bail – Applicant charged with false imprisonment, persistent contravention of intervention order, contravene intervention order in several ways, threat to kill, threat to inflict serious injury, intentionally cause injury, commit an indicatable offence whilst on bail and contravention of a conduct condition of bail – Requirement to show exceptional circumstances justifying grant of bail – Whether exceptional circumstances exist justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Exceptional circumstances not established – Unacceptable risk – 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 | Mr C Terry | Adrian Dessi Legal |
| For the Respondent | Ms A Phelan | Victoria Police |
HER HONOUR:
By application dated 16 July 2021, the applicant seeks a grant of bail in relation to 25 charges. The first three charges were preferred by the informant Ravinay Singh (Singh matters) and the remainder by the informant Alex Metaxas-Belt (Metaxas-Belt matters). The complainant in relation to the Singh matters and the primary complainant in relation to the Metaxas-Belt matters is Katherine Powell. She is the ex-partner of the applicant. Together they have a child (IP), now aged two years, having been born on 10 March 2019.
Since 2 July 2020 the applicant has been subject to a family violence intervention order (‘FVIO’) granted in favour of both Ms Powell and IP which prevented him from committing family violence against them. It also prevented him from contacting or communicating with Ms Powell by any means and approaching or remaining within five metres of her or IP, subject to that permitted by a child protection order.
Additionally, since about November 2020, IP has lived with the parents of the applicant, Joe and Maria Gentile, pursuant to an interim accommodation order made by the Children’s Court of Victoria. That order imposes a number of conditions upon the applicant including that he complete supervised drug screens, participate in drug and alcohol assessment and treatment and attend a course on anger management as directed by the Department of Families, Fairness and Housing (‘DFFH’). It also prevents him from living with or having contact with IP, other than contact permitted by the court and requires him to not expose IP to physical or verbal violence.
In short form, the 25 offences alleged are of false imprisonment, contraventions (including persistent contraventions) of the FVIO, threats to kill, threats to inflict serious injury, intentionally cause injury, recklessly cause injury, unlawful assault, assault by kicking, commit an indictable offence whilst on bail and contraventions of a conduct condition of bail.
On 3 June 2021 an application for bail in respect of the Metaxas-Belt matters was refused in the Magistrates’ Court of Victoria on the basis that the applicant had failed to show the existence of a compelling reason[1] that justifies the grant of bail and that there was an unacceptable risk that, if released on bail, the applicant would commit an offence, interfere with a witness, obstruct the course of justice and endanger the safety or welfare of any person. The grant of bail with respect to the Singh matters was also revoked on that date.
[1]The final, agreed position of the parties on this application is that the applicant is required to demonstrate that exceptional circumstances exist that justify the grant of bail. This is considered further below.
The alleged offending
Singh Matters
On 12 October 2020 the applicant communicated with Ms Powell by text and then telephoned her. They agreed to meet at the residence of the applicant, being inside a factory. IP was with the applicant’s parents.
Ms Powell duly attended (charge 1, contravene FVIO by being within five metres of protected person) and placed her keys and mobile telephone handset down. The applicant took them and put them in his pocket. An argument ensued in which the applicant demanded Ms Powell provide him with the PIN to her telephone. He placed his hands upon her (charge 5, unlawful assault) and said words to the effect of ‘you’re not going anywhere, I’m going to get IP’.
The accused departed and attended at his parents’ house and saw IP (charge 2, contravene FVIO by being within five metres of protected person).
Members of Victoria Police attended the factory for an unrelated incident and arrested the applicant with respect to this offending.
On 13 October 2020 the applicant was granted bail. One of the conditions of that bail was that he comply with the FVIO made on 2 July 2020.
Metaxas-Belt matters
Between 29 March 2021 and 1 April 2021 the applicant used social media platforms to contact Ms Powell (charge 2, persistent contravention of FVIO).
On 29 March 2021 the applicant used Facebook messenger to twice call Ms Powell and to send her a picture message. Ms Powell did not answer the calls or message (charge 3, contravene FVIO by social media contact; charge 17 contravene bail conduct condition by contact).
On 30 March 2021 Ms Powell attended at the applicant’s residence. Whilst speaking with him, her mobile phone began to ring and vibrate. The applicant picked it up and observed missed call notifications and SMS messages on the screen. He became angry and demanded the PIN so he could read the messages. Ms Powell refused to provide it. The applicant then shouted words to the effect of ‘you’re not going anywhere until you tell me the passcode’. Ms Powell felt in fear of the applicant’s escalating aggression and her inability to leave. The applicant stated words to the effect of ‘I’ll break your arms and legs cunt, you will be leaving in a wheelchair, give me the pin’ (charge 4, threat to inflict serious injury).
Ms Powell attempted, unsuccessfully, to calm the applicant. She was afraid that she was about to be hurt and attempted to move towards the door, being the single point of exit from the room. The applicant shouted words to the effect of ‘you’re not going anywhere, sit the fuck down’ (charge 1, false imprisonment).
After a short time the applicant correctly guessed the PIN for Ms Powell’s telephone and began to look at her call history, messages, photographs and videos.
At 10.36am the applicant used the telephone to call Shannon Johns, a friend of Ms Powell. Ms Johns did not answer the call as she was driving, but a short time later returned the call. The applicant answered the telephone and said words to the effect of ‘if you ever contact Kat again I’m going to fucking kill you. I’m serious. Don’t talk to her or I’ll break your arms’. Ms Johns recognised the applicant’s voice (charge 5, threat to kill; charge 6, threat to inflict serious injury; charge 12, unlawful assault).
At the end of that call the applicant again called Ms Johns, leaving a voicemail in which he told her not to contact Ms Powell or he would ‘fuck her up’. Ms Johns called 000.
The applicant next used Ms Powell’s telephone to call another of her friends and ex-boyfriend, Jason Phelps, and abused him. In looking at the messages recorded on the telephone the applicant accused Ms Powell of being in constant contact with Mr Phelps and said words to the effect of ‘you’re fucked cunt, where’s your hero now, you’re going to die’.
The applicant then physically attacked Ms Powell, who was on the sofa curled into a ball. Despite her screaming at him to stop, the applicant punched her to the head which caused her to drop her arms. He then repeatedly struck her to the head, face and arms with his fists. The first punch caused a laceration to her forehead. When he stopped he told her ‘you did this to yourself’ and, after a period, gave her a towel to stem the bleeding.
Ms Powell was too frightened to attempt to leave (charge 1, false imprisonment) and instead tried to calm the applicant. He collected all the phones and iPads in the room and went to the door to let the dog out. There he saw VicPol members, ran back inside and told Ms Powell that she needed to hide. She hid in a wardrobe. The police search of the premises did not discover her location.
Later that evening the applicant again went through Ms Powell’s telephone. After seeing a photograph of IP he said words to the effect of ‘you’re fucked cunt, you will never leave here alive and you will never see [IP] again’. He then struck her with his fists multiple times to the face, chest, arms and legs. Afterwards the applicant said words to the effect of ‘why have you done this to me, I just wanted to be a family again’. After again looking at Ms Powell’s phone, the applicant renewed his attack. He kicked her to the left cheek, causing her to fall and lose consciousness. She regained consciousness as the applicant continued to punch her. When he stopped he attempted to tend to her injuries. Ms Powell believed that if she attempted to leave the applicant would further assault or kill her (charge 1, false imprisonment; charge 7, threat to kill; charge 8, intentionally cause injury; charge 9, recklessly cause injury; charge 10, unlawful assault; charge 11, assault by kicking; charge 13, contravene FVIO by assault; charge 16, commit indictable offence whilst on bail; charge 18, contravene bail conduct condition by assault).
Ms Powell slept at the applicant’s residence overnight. On the morning of 31 March 2021 the applicant was anxious due to the obvious bruising on her face. She left the property without further incident after telling the applicant that she needed to go home, which she did. She then went to see Ms Johns, who took her to see police who, in turn, took photographs of her injuries and organised an ambulance. Upon arrival at hospital Ms Powell was found to have a blowout fracture to the right orbital socket, requiring surgery, as well as pain, swelling and bruising to the face. She also had extensive bruising and soreness to the chest, back, arms and legs.
On 31 March 2021 the accused used Facebook Messenger to call Ms Powell 12 times and send her 127 messages (charge 14, contravene FVIO by contact; charge 19, contravene bail conduct condition by contact).
On 1 April 2021 the accused used Facebook Messenger to call Ms Powell 25 times and send 62 messages (charge 15, contravene FVIO by contact; charge 20, contravene bail conduct condition by contact).
The applicant was arrested on 10 April 2021. His mobile telephone was later analysed. The applicant was in constant communication with Ms Powell between 27 February and 6 April 2021 (charge 21, persistent contravention of FVIO and charge 22, persistent contravention of FVIO). It also contained a video recorded at 10.19pm on 30 March 2021. It depicts Ms Powell crying and cowering from the applicant who tells her that she should beg for Mr Phelps to come and help her. He states ‘I’m bashing the fuck out of you, you fucking weak cunt’. Ms Powell can be heard to scream and the applicant can be heard to laugh.
Prior Matters and Procedural History
On 26 July 2020 the applicant was convicted of criminal damage, trespass and two charges of contravening a FVIO. At about 8:30pm on 24 July 2020, the applicant telephoned Ms Powell who was at home with her mother and IP, asking if he could attend her residence and see IP. The applicant was insistent and said he was coming over. Ms Powell told him that she would telephone the police. She then locked the doors and windows. Upon his arrival the applicant starting banging on the door and windows, yelling out ‘open the fucking door’. The applicant kicked in the back door, entered the residence and left with IP, who was screaming. After leaving the premises the applicant telephoned Ms Powell. She told him that police had been called. The applicant told her that they would not find him. Subsequent communication between Ms Powell’s mother and the applicant’s parents revealed that the applicant had attended at his parents’ address and left IP in their care.
For these offences the applicant was sentenced to a 15 month community corrections order (‘CCO’) to perform 150 hours of community work.
On 23 October 2020 the applicant pleaded guilty to the Singh matters. Those findings of guilt breached the CCO. The applicant was released on bail on a deferral of sentence to 4 March 2021. On that date the Singh matters and the charge of contravention of the CCO were adjourned to 19 April 2021.
Upon his arrest on 10 April 2021 on the Metaxas-Belt matters, the applicant did not apply for bail. On 19 April 2021 the CCO contravention, the Singh matters and the Metaxas-Belt matters were all adjourned to 12 May 2021. Further listings and adjournments occurred. Ultimately, as already noted, on 3 June 2021 bail was refused on the Metaxas-Belt matters and bail was revoked on the Singh matters.
The Metaxas-Belt matters are listed for contest mention on 7 September 2021. The Singh matters are listed for plea on the same date.
Legal Considerations
The bail application with respect to the Metaxas-Belt matters before the Magistrate proceeded on the basis that the applicant was required to demonstrate the existence of a compelling reason justifying the grant of bail. The affidavit of the applicant’s solicitor dated 16 July 2021 and the affidavit in response by a solicitor employed with Victoria Police dated 27 July 2021 also addressed the compelling reason test. However, a supplementary affidavit by the Victoria Police solicitor dated 30 July 2021 submitted that the correct threshold was the exceptional circumstances test.
In written submissions dated 29 July 2021 (filed 30 July 2021), the respondent argued that the applicant was required to demonstrate the existence of exceptional circumstances justifying the grant of bail because he is alleged to have committed an offence contained in Schedule 2 of the Bail Act1977 (‘Act’) whilst on bail for a schedule 2 offence.[2]
[2]The Act, s 4AA(2)(c)(i).
Although the basis advanced by the respondent in its written submissions was not agreed, the applicant did concede the need to demonstrate exceptional circumstances. Given the manner in which the matter was argued, it is necessary to set out the basis of the applicable test.
I agree that a number of the Metaxas-Belt charges are Schedule 2 offences. These include charges 2, 21 and 22, being persistent contravention of a FVIO contrary to s 125A(1) of the Family Violence Protection Act2008 (‘FVPA’);[3] charge 7, being a threat to kill contrary to s 20 of the Crimes Act 1958 that is also a family violence offence;[4] and charges 17, 18, 19 and 20, being contraventions of bail conduct conditions contrary to s 30A of the Act.[5]
[3]The Act, Schedule 2, clause 19.
[4]The Act, Schedule 2, clause 7.
[5]The Act, Schedule 2, clause 30.
At the time of the alleged commission of these offences, the applicant was admitted to bail in respect of the Singh matters. The respondent argues that the two charges of contravention of the FVIO contrary to s 123 of the FVPA are Schedule 2 offences by virtue of clause 18 of Schedule 2 of the Act. That provision is in the following terms:
An offence against section 37, 37A, 123 or 123A of the Family Violence Protection Act 2008 of contravening a family violence intervention order or family violence safety notice (as the case requires) in the course of committing which the accused is alleged to have used or threatened to use violence and—
(a)the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence against any person; or
(b)the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order or notice, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.
The respondent argued that in the course of committing the contraventions, the respondent both used and threatened to use violence. The violence was the laying of hands upon Ms Powell (the conduct of the unlawful assault charge) and the threatened use of violence was a threat to shoot her whilst pointing a nail gun at her and simultaneously holding IP.[6]
[6]Although this incident does not appear in the police summary of the Singh matters, it is contained within the sworn statement of Ms Powell.
The first limb of clause 18 of Schedule 2 is thereby satisfied.
However, to fall within that clause there must also be another, prior occasion on which either the applicant has been convicted or found guilty of an offence in which he used or threatened violence against any person or on which he used or threatened violence against Ms Powell irrespective of whether he has been convicted or found guilty of or charged with an offence in connection with that use or threatened use of violence.
It follows that the violence or threatened use of violence by the applicant during the commission of the Singh offences cannot also be relied upon to satisfy the second limb of clause 18 of Schedule 2 (as argued by the respondent).
The only prior convictions of the applicant relate to the events of 24 July 2020. On the material before me as summarised above, the applicant did not, on that occasion, use or threaten to use violence[7] against any person. Nonetheless, there is uncontested evidence before me that the applicant had, on 1 September 2018, threatened to kill Ms Powell. She was pregnant at the time. Although the applicant was not charged, the matter was reported to police.
[7]I note that the term ‘violence’ is not defined in the Act. The written submissions of the respondent argued that violence should mean ‘family violence’ as defined in the FVPA. These submissions were not repeated orally. A similar submission was rejected by Tinney J in Re Chambers [2020] VSC 758. I also doubt the correctness of that proposition. But, given clause 18(b) of Schedule 2, it is not necessary to further analyse this issue.
Accordingly, clause 18(b) of Schedule 2 is satisfied.
It follows that the exceptional circumstances test applies and bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail. In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
The meaning of exceptional circumstances is well known. Variously expressed, it means that 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 shown satisfactorily, 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. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). 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]
[8]The Act, s 4E(3).
Given that the applicant has been charged with family violence offences, I must also consider whether, if he were released on bail, there would be a risk that the applicant would commit family violence and whether that risk could be mitigated by the imposition of a condition or by the making of a FVIO.[9]
[9]The Act, s 5AAAA(2).
And, I am to apply and interpret the Act having regard to the guiding principles delineated in s 1B(1).
Applicant’s materials and contentions
The application for bail is supported by an affidavit of the applicant’s solicitor, Adrian Dessi, which addresses the personal circumstances of the applicant and the statutory ‘surrounding circumstances’ of the application. These issues were amplified by the applicant’s counsel in oral submissions. It was submitted that, in combination, they demonstrated exceptional circumstances justifying the grant of bail.
The primary factor was identified as being the real prospect that, if denied bail, the period of time spent on remand will be a significant portion of or exceed the length of any likely sentence imposed. With the Metaxas-Belt matters listed for contest mention on 7 September 2021, a contested hearing date cannot be expected before March or April 2022. Counsel for the applicant indicated that there have been discussions as to resolution of the charges but the particular ‘sticking points’ were the allegations of false imprisonment, the threat to kill and the threat to inflict serious injury. The applicant further disputes the nature and severity of the mechanisms said to have caused the injury, namely that he kicked Ms Powell to the head causing a loss of consciousness – both of which are ‘completely denied’. The applicant does not submit that the prosecution case is weak.
The applicant also emphasises his very limited criminal history and the fact that his first conviction was recorded when he was 30 years of age. In particular the applicant notes that he has no prior convictions for either committing offences on bail or of contravening a conduct condition of bail. He does accept that at the time of the Metaxas-Belt matters he was on bail for the Singh matters and on summons for the CCO contravention.
The applicant enjoys extremely strong family support. Annexed to the affidavit of Mr Dessi are letters from his father and paternal grandmother, the latter who offers to have the applicant live with her in the event that bail is granted. The applicant lived with his parents until 2018 when he built his residence in the factory. He co-habited there intermittently with Ms Powell and IP, following the birth of that child. As already noted, IP has lived with the applicant’s parents since about November 2020. The applicant also enjoys strong support from friends. Annexed to the affidavit of Mr Dessi are letters of two friends willing to assist the applicant in his rehabilitation.
Between 2005 and 2020 the applicant worked as a carpenter, first as an employed apprentice and then, from 2009, as a sole trader. His work ceased as a result of the COVID-19 restrictions. In the event that he is granted bail the applicant will have full-time work in his father’s bricklaying business.
Mr Dessi’s affidavit states that it was as a result of the applicant’s unemployment in 2020, and the resultant loss of routine and structure and increased anxiety, that the applicant became addicted to methylamphetamine and cannabis. The applicant has been recommended for case management by the Court Integrated Services Program (‘CISP’) and, during the assessment process, indicated a willingness to engage in alcohol and other drug counselling. He has never previously received any form of court supervised treatment for drug use. His willingness to engage in rehabilitative programs is argued to be demonstrated by his successful completion of seven modules of the ATLAS program whilst on remand.
As to the issue of risk, the applicant argues that while he has a ‘very recent’ history of family violence, he does not pose any risk of interfering with witnesses and that any risk he poses of endangering the safety and welfare of Ms Powell or committing offences whilst on bail can be sufficiently ameliorated by the imposition of conditions including residence with his grandmother, a curfew, a reporting regime and management by CISP. Aside from a night on remand, the applicant has never before spent any length of time in custody and it is argued that the effect of almost four months’ detention has had a salutary effect upon him, motivating him to address his drug and inter-personal violence issues.
When specifically asked about the effect of s 5AAAA(2) of the Act, counsel for the applicant again submitted that the period of remand has given the applicant insight into the consequences for breaching such orders. It is noted that the CISP report dated 29 July 2021 states that ‘[i]n stark contrast to when previously assessed by CISP on 1 June 2021, [the applicant] acknowledged personal unacceptable behaviours, accepting responsibility for his own actions, and identifying improvements and changes he must make.’ It was submitted that any risk that the applicant would commit family violence could be mitigated by a condition that he not have contact with Ms Powell.
Respondent’s materials and contentions
The respondent relied upon an affidavit affirmed by a solicitor employed by Victoria Police, Mary Sevdalis, and a supplementary affidavit also affirmed by Ms Sevdalis.
The respondent emphasised the numerous family violence reports received by Victoria Police with respect to the applicant and noted their escalated frequency and seriousness. Further, the respondent noted that the applicant is the named respondent to a Family Violence Safety Notice with respect to his sister, after he grabbed her by the throat and forced her backwards.
It was argued that the applicant lacked insight into the effect of his violence, not only upon Ms Powell, but also on IP. A letter authored by a senior child protection practitioner of the DFFH dated 21 July 2021 and annexed to the affidavit of Ms Sevdalis states that child protection services are involved with IP:
… in a statutory capacity due to significant ongoing concerns regarding his exposure to family violence and parental substance misuse. In particular, the father, [the applicant’s] propensity to perpetrate physical, emotional, sexual and psychological family violence as well as assert extreme controlling and coercive behaviours against the mother …
The same letter states that, during interview on 6 May 2021, the applicant was unable to identify the impact of his violence on IP in so far as the child was exposed to ‘significant and confronting’ injuries observable on his mother and loss of contact with her due to her hospitalisation.
The letter continues that the applicant’s participation in a ‘Men’s Behaviour Change Program’ coincided with the conduct of the Metaxas-Belt matters and the applicant has a disregard for the conditions of the Interim Accommodation Order which placed IP in the care of his parents. It notes that he behaves in a controlling and coercive manner towards his parents.
The respondent further noted the number and nature of the applicant’s breaches of the FVIO, and thereby his bail conditions, with respect to his contact with and treatment of Ms Powell. In particular, in the many text messages the applicant sent, he accuses her of being responsible for his behaviour, asks her to come back and both threatens to burn her house and never let her see IP again.
While noting the assessment of the applicant’s level of insight in the CISP report quoted at paragraph [54] above, the respondent submitted that this is a very recent change.
The respondent further noted the long history of drug abuse by the applicant. He commenced using cannabis at the age of 15 years, which had become a daily habit by the age of 18 years. Aged 21 years he began to take ‘ice’ (methylamphetamine) which after 12 months also became a daily habit.
Finally, the respondent notes that Ms Powell is fearful for her safety in the event that the applicant is granted bail.
The respondent submitted that the applicant had failed to demonstrate the existence of exceptional circumstances justifying the grant of bail. The respondent submitted further that the applicant posed an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail and interfering with a witness or otherwise obstructing the course of justice.
In this regard, the respondent noted the history of violence against both Ms Powell and the applicant’s sister and of breaching the FVIO both by committing serious violence and by repeated contact with her and unauthorised contact with IP. The same matters were pressed with respect to s 5AAAA of the Act.
Further, the respondent submitted that no conditions of bail would sufficiently mitigate these risks. In particular, it was argued that there is no evidence that the applicant’s grandmother, with whom it is proposed that the applicant reside, is aware of the extent or nature of the family violence allegations, the applicant’s drug history or the seriousness of the Metaxas-Belt charges.[10] Nor is there any evidence as to her capacity to supervise him.
[10]During the application, counsel for the applicant confirmed that Ms Maria Gentile was available to be called as a witness to give evidence confirming that she was aware of the history of drug use, of the family violence incidents alleged and, notwithstanding these allegations was prepared to offer accommodation to the applicant. The respondent did not ask that Ms Gentile be called as a witness.
Consideration
The combination of matters relied upon by the applicant do not amount to exceptional circumstances that justify the grant of bail.
The issue of delay to a likely contest date in March or April 2022 is of concern, but I note that the offending in the Metaxas-Belt matters is serious and committed against a background of escalating family violence towards Ms Powell at a time when the applicant was subject to both a CCO and bail conditions for similar offending. The nature of the injuries sustained by Ms Powell are significant and have had long-term consequences. I have watched the video taken by the applicant on the evening of 30 March 2021. Ms Powell is plainly terrified. The applicant is callous. The only reasonable inference to draw is that he derived pleasure from her fear and his control.
I do not accept that it is necessarily the case that, if the Metaxas-Belt matters do not resolve, the applicant will, after contest, receive a period of imprisonment less than the period spent on remand.
While there are matters positive to the applicant in the remainder of the factors he relies upon, including the support of family and friends, the prospect of employment and CISP bail supports, these do not amount exceptional circumstances.
I accept that the remand period has been difficult for the applicant and it is to be hoped that the insight into his violence he expressed during the CISP assessment process will be a foundation for his future conduct. However, having examined all of the surrounding circumstances, the seriousness of the alleged offending, the strength of the prosecution case, the applicant’s past history of offending against Ms Powell, the extent to which he has not complied with the FVIO and thereby bail conditions and his resort to violence against his sister, I am not satisfied that there are exceptional circumstances justifying a grant of bail in this case.
It follows that the application for bail must be refused.
There is then no need to consider whether the applicant poses an unacceptable risk of engaging in any of the s 4E(1)(a) behaviour and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable. However, even if I had come to a different view as to the existence of exceptional circumstances, I would still have refused bail as I am satisfied that the applicant does pose an unacceptable risk of endangering the safety and welfare of Ms Powell and committing an offence while on bail.
In this regard his history of extensive non-compliance with the FVIO and, thereby his bail conditions, demonstrates his disregard for the conditions to which he is subject. His violence towards and control of Ms Powell has escalated over recent years. He has also demonstrated indifference to the effect of that behaviour on IP. And, considering s 5AAAA of the Act, the existence of the FVIO has not mitigated the risk of him committing family violence, even when compliance with the terms of the FVIO has been made a condition on which he was admitted to bail.
Conclusion
The application for bail is refused.
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