Re Goldsworthy
[2020] VSC 500
•13 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0173
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by SCOTT GOLDSWORTHY |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 10 August; 13 August 2020 |
DATE OF RULING: | 13 August 2020 |
CASE MAY BE CITED AS: | Re Goldsworthy |
MEDIUM NEUTRAL CITATION: | [2020] VSC 500 |
---
CRIMINAL LAW — Bail application — Charges of rape, family violence and persistent contravention of Family Violence Intervention Order — Whether exceptional circumstances exist — Whether unacceptable risk of family violence — Delay — Impact of COVID-19 — No prior criminal record — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4AA, 4D, 4E and 5AAAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms V Drago | Ruffin Lawyers |
| For the Respondent | Mr M Fisher | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Scott Goldsworthy (the ‘applicant’).
On 28 May 2020, he was charged and remanded in custody in relation to nine charges brought by Detective Senior Constable Ashley Bell (the ‘first Bell matter’). Those charges are as follows:
·intentionally causing injury;
·recklessly causing injury;
·persistent contravention of a family violence intervention order (‘FVIO’);
·contravention of an interim FVIO (four counts);
·possessing a drug of dependence (cannabis); and
·unlawful assault.
He was granted bail on those charges at the Korumburra Magistrates’ Court on 11 June 2020, with conditions including compliance with the active interim FVIO.
On 30 June 2020, while on bail, the applicant was charged by the same informant with additional offences as follows (the ‘second Bell matter’):
·stalking;
·contravention of a FVIO intending to cause harm or fear;
·persistent contravention of a FVIO;
·committing an indictable offence whilst on bail (three counts);
·contravention of an interim FVIO (five counts);
·rape (three counts);
·sexual assault (two counts);
·recklessly causing injury; and
·making a threat to kill.
The charges in each of the first and second Bell matters relate to allegations of family violence made against the applicant by his former partner over two overlapping periods of time, being between 28 February and 28 May 2020 in the first matter and between 1 January 2019 and 25 June 2020 in the second matter.
Procedural history
After his arrest in the second Bell matter on 30 June 2020, the applicant was remanded and refused bail at the Ringwood Magistrates’ Court later that day.
He was refused bail a second time at the Latrobe Valley Magistrates’ Court, on 21 July 2020, on the grounds that he failed to show exceptional circumstances and was an unacceptable risk of committing an offence while on bail or endangering the safety or welfare of any person.
On the same day, bail was revoked in relation to the first Bell matters.
By application filed on 30 July 2020, the applicant seeks a grant of bail in this Court in respect of all matters.
As he is accused of committing Schedule 2 offences within the meaning of the Bail Act 1977 (the ‘Act’), [1] while on bail for another Schedule 2 offence,[2] the parties accept that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[3]
[1]Namely, persistent contravention of an FVIO and committing an indictable offence while on bail - Bail Act 1977 (Vic) sch 2, items 1, 19 (‘Bail Act’).
[2]Namely, persistent contravention of an FVIO – Bail Act sch 2, item 19.
[3]Bail Act ss 4AA(2)(c)(i), 4A(1A), 4A(2).
The first Bell matter is next listed for mention at the Korumburra Magistrates’ Court on 10 December 2020, while the second Bell matter is listed for committal mention at the Latrobe Valley Magistrates’ Court on 29 October 2020. The informant anticipates that all charges will ultimately be consolidated into one brief.
It was heard during the course of this application that a jury trial of this matter would be unlikely to be listed much before the end of 2021 as a result of COVID-19 restrictions. I accept that this is so; although I note that the nature of the charges, being family violence and sex offences, would attract a degree of priority as would the applicant’s custodial status if he remained on remand.
The alleged offending
The first Bell matter
By way of background, the applicant and Carrie McLean (the ‘complainant’) were in a relationship for approximately 18 years and had four children together, now aged between 4 and 17 years.
It is the prosecution case that the applicant has committed ongoing family violence against the complainant in the preceding 18 months — often in the presence of their children. The complainant alleges that this behaviour commenced around 2011 in the context of the applicant abusing illicit substances. However, no reports were made to police prior to the present allegations.
On the evening of 28 February 2020, it is alleged that during an argument between the couple, the applicant grabbed the complainant by the left arm and pushed her into a door frame, causing bruising to her arms and legs. She reported the incident to police on 2 March 2020. Photographs of her injuries were taken and later provided to the Victorian Institute of Forensic Medicine (‘VIFM’) for assessment.
An interim FVIO protecting the complainant and their four children was imposed by the Korumburra Magistrates’ Court on 12 March 2020 (the ‘first FVIO’). The first FVIO conditions limited contact between the applicant and complainant.
The applicant is alleged to have breached the first FVIO on four occasions between 20 April 2020 and 28 May 2020, by either contacting or being in the company of the complainant, or attending at the family home.
On the final occasion, police attended the complainant’s residence and located the applicant in the bedroom. He was found in possession of a cooler bag containing approximately eight grams of cannabis and a glass pipe, which officers believed was for smoking ‘ice’.
The applicant was arrested and taken to be interviewed at the Korumburra police station. During his record of interview, he denied assaulting the complainant and stated that she had an iron deficiency, which was the likely cause of her bruising. He explained that he had attended the complainant’s home the previous evening because one of their children had been injured, and he had been invited to stay the night. He admitted to possessing the cooler bag and its contents.
The second Bell matter
Following the applicant’s remand in the first Bell matter, the couple’s three youngest children were placed into care by Child Protection due to concerns for their safety. Their eldest child, JM, was placed in the care of his maternal grandmother. During this time, the complainant provided several statements to police, detailing multiple incidents of family violence and sexual offending beginning in January 2019.
It is alleged that, at the family home on a date in January 2019, the applicant consumed Gamma-hydroxybutyrate (‘GHB’) and, having been enraged by the complainant speaking with a male associate on social media, removed the complainant’s clothing. He held her down on the bed and penetrated her vagina with his penis while she repeatedly told him to stop and tried to push him away.
The applicant allegedly threw her legs to the side afterwards, causing her to fall off the bed and sustain bruising to her hips, legs and chest, which she photographed on her phone.
On 28 July 2019, the applicant allegedly lifted the complainant over his shoulder and caused her to fall. She sustained injury to her knee requiring medical treatment.
On a date in February 2020, the couple had a dispute whilst in their family car, during which he exited the car and yelled, ‘This is why females get killed’. The complainant asked, ‘Is that supposed to be a threat?’ to which he allegedly responded, ‘You know what the fuck it is’. On another date that same month, he allegedly pushed the complainant’s head into a bedroom door with sufficient force to dint the door and cause dizziness and a lump on her head.
On the evening of 27 May 2020, the night before his arrest in the first Bell matter, the applicant allegedly attended the complainant’s residence in breach of the first FVIO and argued with her in the presence of their son.
She called her friend, Dirk Cavalar, who listened to their dispute and advised her to activate the duress alarm, which had been supplied by a family violence support service. However, she was unable to do so as the applicant had prevented her from charging it.
Later that evening, in the bedroom, the applicant allegedly tied the complainant’s hands behind her back, removed her clothing and penetrated her anus with a sex toy and her vagina with his penis. The force of the alleged assault produced significant pain and bleeding from her anus. Afterwards, the applicant allegedly untied the complainant and laughed at her before proceeding to smoke ‘ice’ from a glass pipe.
Following the applicant’s arrest the next day, Mr Cavalar attended the complainant’s home and was asked by her to strip the bed and wash the sheets, which he did. Mr Cavalar later informed police that he ‘saw sheets messed up and blood everywhere’.
The complainant allegedly disclosed to him that the applicant had raped her after their phone call the previous evening. She sought medical treatment for ongoing pain and discomfort following the alleged assault. The complainant informed police that she had disposed of the sex toy following the incident.
After the applicant was granted bail in the first Bell matter, the complainant was assisted by family violence support services to relocate to crisis accommodation. A safety plan was implemented and included the cancellation of her mobile phone services. She continued to utilise social media accounts during this time.
On the evening of 23 June 2020, the complainant received four emails from Facebook stating that the applicant’s mobile number and email address had been added to her Facebook account as the primary contact, and that her own email address had been deleted from her account. Police believe the applicant did this as a means of attempting to establish the complainant’s whereabouts.
On 24 and 25 June 2020, JM was contacted on Facebook by a family friend, who sent several messages asking him to allow her access to their home to get some items for the applicant and warning him to not to tell anyone. She also asked him to meet with her at a shopping centre.
JM told investigators that he believed these messages were authored by the applicant given the language used. On speaking with police, Ms Thomas denied knowledge of the first FVIO and stated that the applicant was unaware of her contact with his son.
JM also disclosed to police an incident between 25 March and 14 April 2020 in which the applicant was inexplicably able to locate the family at a beach in South Gippsland.
On 30 June 2020, the applicant was arrested and interviewed in relation to the above allegations. He admitted to enlisting the help of the family friend to access the complainant’s Facebook account but denied any knowledge of her contacting his son. He denied assaulting the complainant and stated that all sexual contact with her had been consensual. The applicant was remanded in custody and refused bail.
On 26 June 2020, the applicant allegedly attempted to contact the complainant’s mother several times by phone before sending a text message apologising for the calls and stating that he wished to ‘explain some things’. She contacted police, citing fears for her safety, and was subsequently granted an interim FVIO prohibiting further contact by the applicant. That order was granted on 26 June 2020 and operates until a final order is made.
On 9 July 2020, Child Protection provided an update to police and identified their three youngest children as being at ‘significant and immediate risk of harm due to them continuing to experience family violence perpetrated by the [applicant]’. A further letter authored by a Child Protection practitioner on 3 August 2020 states that the applicant ‘is an unacceptable risk’ to the complainant and their children.
The applicant
The applicant is 39 years of age. He and the complainant formerly resided with their children in Poowong. Following the breakdown of that relationship in March 2020 and the imposition of the first FVIO, he resided with his father, Russell Goldsworthy, at Ferntree Gully. He proposes to return to live at that residence if granted bail. Indeed Mr Goldsworthy gave evidence to that effect at the hearing of the application. He indicated that his son was permitted to reside at his premises for as long as was necessary. Mr Goldsworthy also gave an undertaking that, if the applicant were to reside with him and breach any conditions of bail, he would contact the police.
The applicant completed his schooling in year 9 and thereafter commenced employment in steel fabrication. Since that time, he has held employment in security work and truck driving. He was employed in the latter field for approximately 20 years and ceased working shortly before his remand on the first Bell matter.
The applicant has no criminal history and no other outstanding matters.
He denies any substance abuse issues and is prescribed medication for depression and anxiety.
The applicable legislation
The applicant is entitled to bail unless the Act requires the Court to refuse bail.[4] As stated, in the present application, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail and, if so satisfied, must then be satisfied that the applicant does not pose an unacceptable risk if granted bail.[5] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[6]
[4]Bail Act s 4.
[5]Ibid ss 4AA(2)(c)(i), 4A(1A), 4D(1)(a) and 4E.
[6]Bail Act s 4A(2).
In considering whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[7]
[7]Ibid s 4A(3).
To reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[8] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[9]
[8]Re CT [2018] VSC 559 [64] (‘Re CT’) citing with approval Re Sam [2017] VSC 91 [22].
[9]Re CT [65] citing with approval Re Fairest [2015] VSC 375 [17]-[8], [22].
If I am satisfied as to the existence of exceptional circumstances, I must then apply the ‘unacceptable risk test’.[10] That is, pursuant to ss 4E(1) and (2) of the Act, I must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail –
[10]Bail Act s 4D(1)(a).
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
To determine whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
In addition, as the allegations against the applicant involve family violence offences, s 5AAAA(2) of the Act requires the Court to consider whether, if the accused 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 bail conditions or the making of a FVIO. The applicant is subject to two interim FVIOs, as detailed above
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B of the Act.
The applicant’s contentions
The applicant relies upon the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail.
Strength of the prosecution case
With regards to the first Bell matter, Ms Drago of counsel, who appeared for the applicant, conceded that the evidence is strong in relation to the alleged breaches of the first FVIO by attendance at the complainant’s residence. However, with respect to the alleged assaults, counsel contended that there are issues with the complainant’s credibility, the contemporaneity of the photographs taken by police, and the ageing of her bruises. Ms Drago also pointed to issues with the VIFM medical report having been based solely on photographs of the bruising and without there having been a forensic examination of the complainant.
In relation to the second Bell matter, while acknowledging the allegations to be serious, counsel for the applicant indicated that he will dispute all of the charges. She submitted that the prosecution case is weak as a result of issues with the complainant’s credibility and lack of corroborating evidence.
In particular, it was submitted that the complainant’s account of the events on 28 May 2020, following the applicant’s arrest, are inconsistent with the statement of Mr Cavalar and with observations of the attending police officers. It also appears that forensic analysis of the seized mattress protector will not be undertaken.
Delay and likely sentence
The applicant has been on remand in the second Bell matter since 30 June 2020 and spent a further 14 days in custody in the first Bell matter before being granted bail.
The first Bell matter is at a particularly early stage, being listed for mention only in December 2020. Ms Drago, on the applicant’s behalf, indicated that there is no prospect of resolution in either case, and it is therefore anticipated that the matters will proceed to contested hearing or trial.
It was submitted on his behalf that the applicant will suffer inordinate delay in the progress of both matters, exacerbated by COVID-19 restrictions and the uncertainty surrounding the resumption of trials and contested hearings.
The applicant further submitted there is a risk that his time spent on remand may exceed any sentence he may ultimately receive in circumstances where he has no criminal history, the prosecution’s case is purportedly weak, and ‘extraordinary delays’ are expected.
On this basis, the applicant submitted that delay alone is capable of meeting the threshold of exceptional circumstances in the present application. As will be seen, I do not accept that submission.
Availability of bail support services
The applicant was assessed as suitable for Court Integrated Services Program (‘CISP’) case management on 8 and 10 July 2020 and again on 7 August 2020. The CISP report from August advised that an initial treatment and support plan for the applicant will encompass continuing treatment with his psychologist, referrals to an anger management and a men’s behaviour change program, as well as phone appointments with a CISP case manager.
Accommodation and family support
The applicant reported that he remains supported by his family, particularly his father. As the applicant proposes to return to live with his father, if granted bail, the affidavit in support of the applicant noted that his father is retired, has a driver’s licence, is physically fit and is willing to support the applicant in any way required.
The applicant submitted that, in light of the current COVID-19 restrictions, he would spend the majority of his time at home with his father or at work, in the event he is able to secure employment. In the applicant’s submission, the proactive monitoring of compliance with COVID-19 restrictions by police creates an additional layer of supervision.
COVID-19 and onerous conditions of custody
Counsel for the applicant submitted that the 14 days on remand prior to his grant of bail in the first Bell matter was spent entirely in isolation. He again spent two weeks in quarantine when remanded in the second Bell matter and is now in lockdown at Ravenhall Correctional Centre due to a positive COVID-19 case at the prison.
Further, it is noted that personal visits have been suspended indefinitely and that cash and personal property are not permitted to be sent to prisoners.
Counsel has submitted that these conditions weigh heavily on him, particularly as he has had not previously spent time in custody and has had no previous involvement with the criminal justice system.
Mental health and medical conditions
Prior to his remand, the applicant had been receiving treatment for anxiety and depression from a general practitioner, a psychologist and, more recently, a psychiatrist. The applicant also reported having previously engaged with supports through SalvoCare and continues to experience unresolved grief related to the death of his mother eight years ago.
The applicant requires daily insulin and weekly Bydureon for treatment of Type-2 diabetes. He stated that he did not receive his insulin for the first three days of his remand in both Bell matters and only received Bydureon on the day before his release on bail in the first Bell matter.
Additionally, the applicant was also scheduled to undergo the surgical removal of a salivary gland on 16 July 2020, which was not able to proceed as a result of his continuing remand.
Unacceptable risk
The applicant submitted that the support of his family, his strong ties to the jurisdiction and the availability of stable accommodation with his father are protective factors, while the current COVID-19 restrictions add an extra layer of supervision and further reduce his risk. It was submitted that a grant of bail would ultimately offer greater community protection in the long term by affording him the opportunity to engage with community supports and secure employment. The applicant submitted that these factors are particularly significant having regard to the stated weaknesses in the prosecution case and the presumption of innocence.
The applicant further submitted that he has no knowledge of where the complainant and their children currently reside and has no desire to communicate with the complainant. He indicated that the time already spent on remand is a deterrent that significantly lowers his risk of contacting the complainant.
Finally, he submitted that any risk he may pose if granted bail can be mitigated to an acceptable level by the imposition of conditions.
The respondent’s contentions
The respondent opposed the application on the basis that the applicant failed to demonstrate exceptional circumstances justifying the grant of bail and, in the event exceptional circumstances were established, that the applicant poses is an unacceptable risk if released on bail.
Nature and seriousness of alleged offending
Mr Fisher, on behalf of the respondent, submitted that the offences alleged in both Bell matters are objectively serious offences with the applicant’s alleged conduct being extremely serious examples of the offences of rape and sexual assault in the context of ongoing family violence.
Strength of the prosecution case
In response to the applicant’s submissions regarding the strength of the prosecution case, counsel for the respondent submitted that the allegations must be viewed in the context that family violence offences often occur ‘behind closed doors’, and that the prosecution’s case in both Bell matters is strong. It was submitted that the complainant’s allegations are supported by the observations of police, photographs and medical reports of her injuries, electronic records and, to some degree, the applicant’s own admissions. Additionally, the respondent submitted that the case may be further bolstered by the availability of tendency evidence.
Delay
On behalf of the respondent, Mr Fisher conceded that the applicant will experience some delay as a result of COVID-19 but did not accept that such delay is inordinate having regard to the strength of the prosecution case and the available penalties for each charge. The respondent also noted that trial by judge alone is an option available to the applicant by virtue of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic). Be that as it may, I should remark that, in circumstances where an accused person is in no way responsible for the delay, there is no obligation on an accused person to shorten the delay in listing their trial by accepting a trial process which they do not find acceptable.
Lack of prior history
In the written materials, the respondent further conceded the applicant’s lack of criminal history and absence of previous family violence complaints to police but noted that the complainant began engaging with family violence services back in August 2019.
Accommodation and family support
In relation to the applicant’s proposed address and support from his family, the respondent contended that the applicant is alleged to have breached the first FVIO on numerous occasions in circumstances where he was required to live at his father’s residence in Ferntree Gully, first, as a condition of the first FVIO and, later, as a condition of his bail in the first Bell matter. The respondent submitted that the Court cannot be satisfied that the applicant’s father will be able to provide adequate supervision and ensure the applicant’s compliance whilst on bail.
COVID-19 and onerous conditions of custody
With respect to the applicant’s submissions on the onerous conditions of his remand, the respondent submitted, through Mr Fisher, that Corrections Victoria has implemented an ongoing COVID-19 management plan, which includes isolation measures. It was contended that, whilst Ravenhall Correctional Centre was on a precautionary lockdown, it has resumed normal operations as of 25 July 2020.
Mental health and medical conditions
In relation to the applicant’s mental health, it was put that Corrections Victoria regularly treats these conditions in custody and could do so in this case. Although the applicant has a preferred mental health provider in the community, in the respondent’s submission, this fact does not support a finding of exceptional circumstances.
Further, the respondent submitted that there is no evidence that the applicant’s diabetes cannot be managed appropriately in custody.
With regard to his proposed surgery, the respondent submitted in its written material, if it were elective, the procedure would be postponed in any case due to COVID-19 restrictions.
Unacceptable risk
By reference to the informant’s report, exhibited to the affidavit in opposition, the respondent submitted that the applicant poses an unacceptable risk that cannot be mitigated by the imposition of conditions.
Endangering the safety or welfare of any person
The respondent submitted that the applicant’s release risks the safety or welfare of the complainant and their children. The applicant is alleged to have committed acts of family violence, some of which have resulted in charges, and repeatedly breached the first FVIO where the complainant and her children were the protected persons. The informant noted the allegations include the applicant has behaving in an aggressive and erratic manner while under the influence of illicit substances, committing acts of family violence in the presence of his children, and actively preventing the complainant from using her duress alarm. The respondent also referred back to the report from Child Protection indicating the risk the applicant posed to his children. The informant’s report also indicates that the complainant is worried about the possibility of the applicant’s release on bail, fearing that her cooperation with police will increase the risk that he will harm her.
Committing an offence whilst on bail
In relation to the submission that the applicant will engage in further offences of family violence against the complainant and their children, the respondent noted that the applicant’s past compliance with court orders has been poor. The applicant has been charged in relation to allegations of breaching conditions of the first FVIO and his grant of bail as well as committing substantive offences against the same complainant whilst the subject of those court orders.
Interfering with witnesses or obstructing justice
Finally, the respondent submitted that the applicant poses an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice given his alleged use of the complainant’s Facebook account and failure to comply with the provisions of the FVIO and previous bail conditions.
Analysis
The first question is whether the applicant has established the existence of exceptional circumstances such as to justify a grant of bail.
The meaning of exceptional circumstances has been considered in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat [2004] VSC 17 stated the relevant principles as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[11]
[11][2004] VSC 17 [17].
Recently in Re Brown, [12] I noted:
[T]he phrase 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be ‘exceptional’, it has been accepted that:
· the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
· Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
· Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[13]
[12][2019] VSC 751.
[13]Ibid [65] (citations omitted).
By reference to the considerations set out in s 3AAA of the Act, I first conclude that the applicant is charged with offending that is extremely serious. It includes three allegations of rape and other offences in circumstances of family violence over a period of months.
I am also of the view that it would be wrong to conclude, at this stage, that the prosecution case is a weak case. As I pointed out during argument, the fact that there are issues in the evidence, or even some suggestion of inconsistency, does not make the case weak. These proceedings are at a very early stage, and the hand-up brief is not yet complete. The complainant has not yet given evidence or been cross-examined in relation to the allegations that are made.
Next, I note the applicant does not have a criminal history and his non-compliance with conditions of bail is perhaps of lesser significance as they relate to offences alleging interference with the complainant’s Facebook service. However, more significantly, he is alleged to have failed to comply with the core conditions of the first FVIO eight times within a three month period. Additionally, that FVIO was in force at the time when some of the most serious offending was alleged to have occurred, including the charges of rape on 27 May 2020. On the basis of these allegations, it appears that the applicant has no compunction about violating orders of the court, and the imposition of conditions does not deter his behaviour.
In relation to the community support available, I acknowledge that the CISP report refers to an initial treatment and support plan, which depends on his voluntary treatment with his psychiatrist and referrals to anger management and men’s behavioural change programs. As the report makes clear, the services available are somewhat limited by the present COVID-19 restrictions. It also appears the plan is very much dependent on the applicant’s voluntary cooperation.
As to the delay in bringing these matters to trial, it is true that the COVID-19 pandemic has caused a backlog in the courts. The committals in these matters are unlikely to proceed before the early part of next year, and it is difficult to see how this matter could be reached for trial before the end of 2021 or perhaps 2022. The applicant has already been in custody for about 70 days, and I accept that it is likely he will experience a further delay of about 18 months or longer.
Although the applicant referred to my previous rulings in Re Broes [2020] VSC 128 (‘Re Broes’) and Re McCann [2020] VSC 138 (‘Re McCann’) in support of the submission that this delay is inordinate and therefore extraordinary, the circumstances of those cases can be distinguished to the one before me.
In Re McCann, the expected delay was three years, and the respondent conceded that a delay of that order would amount to extraordinary circumstances. In Re Broes, it was conceded by the respondent that it was overwhelmingly likely that the applicant would spend more time on remand than any sentence that might be imposed on her given the applicant’s lack of prior history and her co-accused having received a community corrections order.
In the present application, the applicant has been charged very serious offences, including three counts of rape. The maximum penalty for rape is 25 years’ imprisonment, and the standard sentence that applies to that offence is 10 years’ imprisonment. Despite his lack of prior criminal history, the likely sentence to be imposed on the applicant, if found guilty of these matters, would be significantly more than his time spent on remand, and it was not argued otherwise.
I accept that the conditions of custody for the applicant and all other remand prisoners have been difficult. I also accept that it would be difficult for the applicant as this is his first time in custody and as he suffers from mental health conditions that are likely to be exacerbated by those circumstances. However, I accept that there is nothing to suggest that Corrections Victoria cannot adequately provide for the treatment of the applicant’s mental health and diabetes.
Conclusion
Having carefully considered this matter over a couple of days, I have come to the conclusion that I am not persuaded that the applicant has established the existence of exceptional circumstances that would justify a grant of bail.
In those circumstances, the application for bail must therefore be dismissed.
0
6
0