Re Gorwell
[2021] VSC 144
•26 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0123
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| -and- | |
| IN THE MATTER of an application for bail by SALLY GORWELL | |
| Between: | |
| SALLY GORWELL | Applicant |
| -v- | |
| DETECTIVE SENIOR CONSTABLE SCOTT DAVIES | Respondent |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2021 |
DATE OF JUDGMENT: | 26 March 2021 |
CASE MAY BE CITED AS: | Re Gorwell |
MEDIUM NEUTRAL CITATION: | [2021] VSC 144 |
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CRIMINAL LAW — Application for bail — Applicant, aged 52, charged with trafficking cannabis, possessing heroin, and dealing with property suspected of being proceeds of crime — Applicant charged and bailed, then remained on bail for 12 months until plea hearing and for further two weeks until sentence — Applicant sentenced to six months’ imprisonment combined with community correction order of 12 months — Application for bail pending appeal of sentence refused by magistrate — Whether compelling reason justifying bail — Whether unacceptable risk of offending or failing to appear on bail — Bail granted on own undertaking and with conditions — Bail Act 1977 (Vic) s 3AAA, 4, 4AA, 4C, 4D, 4E, 8A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S Ranjit | Papa Hughes Lawyers |
| For the Accused | Mr S Eley | Victoria Police |
HIS HONOUR:
On 11 March 2021, Sally Gorwell (‘the applicant’) pleaded guilty to three charges at the Werribee Magistrates’ Court: trafficking cannabis,[1] possessing heroin,[2] and dealing with property (namely, a sum of money) suspected of being the proceeds of crime.[3] On the plea, the Magistrate indicated that he would impose a combination sentence with an immediate period of imprisonment followed by a community correction order (‘CCO’). The matter was adjourned to 25 March 2021 for sentence and the applicant’s bail was extended to that date. She had been on bail for the offending since 18 March 2020.
[1]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3]Contrary to s 195 of the Crimes Act 1958 (Vic).
On 25 March 2021, the applicant presented herself before the court and was sentenced to six months’ imprisonment combined with a CCO of 12 months. The applicant indicated immediately her intention to appeal that sentence to the County Court and, pending the hearing of that appeal (which is to occur on 4 May 2021) made an application for bail. That application was refused and the applicant was remanded in custody.
An application for bail was then filed in this Court the following day (26 March) and the matter listed for hearing late that afternoon. The application was opposed, though counsel for the respondent had had little or no opportunity to take instructions.
Based on the material before the Court and the submissions I received, at the conclusion of the hearing, I indicated I was satisfied that a compelling reason justifying a grant of bail had been established and, further, was not satisfied that there was any unacceptable risk. To remedy the short period between filing of the application and the matter proceeding to hearing, I adjourned the matter part heard and, pending the further hearing of the matter (on which occasion the respondent would be given the opportunity to make more detailed submissions), released the applicant on bail on her own undertaking and with a series of conditions.
On 29 March 2021, the Court received confirmation on behalf of the respondent that revocation of the applicant’s (interim) grant of bail made on 26 March 2021 pending the further hearing of the matter would not be sought. Consequently, on the papers, I confirmed my determination that the applicant be admitted to bail on her own undertaking and with a series of conditions.
My reasons for that conclusion follow.
Offending
On 18 March 2020, investigators from the Wyndham Crime Investigation Unit attended the applicant’s home in Werribee and executed a search warrant pursuant to s 18 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). They located:
(a) a large clear resealable bag containing cannabis;
(b) a large pink container containing loosely chopped cannabis;
(c) a clear resealable bag containing heroin; and
(d) $1,260 believed to be the proceeds of crime.
The applicant was conveyed to Werribee Police Station and interviewed. She made full admissions to the charges and cooperated with police. She was bailed from the police station with the sole condition to reside at the same address as is proposed on this application and, as indicated, remained on bail until sentence on 25 March 2021, which included the two weeks following the plea in mitigation on 11 March.
Application for bail in the Magistrates’ Court
Following sentence, the applicant made an application for bail pending the appeal of her sentence to the County Court. That application was refused on the basis that the applicant had failed to show a compelling reason that justified a grant of bail and that there was an unacceptable risk that she would reoffend (particularly from the address at which she had been living).
The magistrate conceded that the applicant had not committed further offences whilst on bail and that none of her prior convictions pertained to bail offences, but observed the following:
(a) The applicant has similar prior convictions in her criminal history, and this was now the third time that she has come before the courts for trafficking in a drug of dependence;
(b) The applicant has lived at the proposed bail address for the last 15 years and was trafficking from that place of residence, rendering it unacceptable; and
(c) At the time of the offending, the applicant already had been engaging with the support programs that she relies on currently.
The applicable test for bail
Compelling reason
The charges include one of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). That offence is one captured by Schedule 2 of the Bail Act 1977 (Vic).[4] To that end, and this being circumstances where s 4AA(2) of the Bail Act does not apply, the applicant must demonstrate that a compelling reason exists that justifies a grant of bail.[5]
[4]See item 24(b) of Schedule 2 of the Bail Act 1977 (Vic).
[5]See s 4AA(3) and 4C(1) of the Bail Act 1977 (Vic).
In considering whether such a compelling reason exists, I must take into account the surrounding circumstances.[6] Such circumstances are those that are relevant and include, but are not limited to, the following:[7]
[6]See s 4C(3) of the Bail Act 1977 (Vic).
[7]Bail Act 1977 (Vic) s 3AAA(1).
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the accused’s criminal history;
(c) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(d) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(e) the accused’s personal circumstances, associations, home environment and background;
(f) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(g) the availability of treatment or bail support services;
(h) the length of time the accused is likely to spend in custody if bail is refused; and
(i) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged.
Unacceptable risk
Further, if satisfied of the existence of a compelling reason justifying bail, I still must refuse bail if I am satisfied by the respondent that there is an unacceptable risk that, if bailed, the applicant would, for example, commit an offence or fail to surrender herself into custody in accordance with the conditions of bail.[8]
[8]See ss 4C(4), 4D(1)(b) and (2), and 4E(1)(a)(i), (iv), (b), (2) of the Bail Act 1977 (Vic).
In considering whether any such risk is an unacceptable risk, I must take into account the surrounding circumstances (which include those in the same non-exhaustive list set out above) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[9]
[9]See s 4E(3) of the Bail Act 1977 (Vic).
Applicant’s contentions
The applicant’s criminal history is lengthy. That is conceded. However, in the affidavit material filed in support of the application, it was submitted that her prior offending is generally within a lower-level range of offences.
I also understood the following matters to be advanced on behalf of the applicant as founding a compelling reason justifying bail and as migratory of any risk:
(a) The applicant has resided in Victoria all her life and has strong ties to the community.
(b) Since the grant of bail on 18 March 2020, she has neither reoffended nor breached the conditions of her bail.
(c) She has a good history of compliance whilst on bail generally and successfully completed a CCO imposed (for other offending) in 2018.
(d) She presented herself at court on 25 March 2021 for sentence aware that the magistrate had foreshadowed imposing an immediate term of imprisonment.
(e) Given the delay between charge and sentence, the applicant’s personal circumstances, her cooperation with police, her pleas of guilty and her successful completion of a previous CCO, there is merit in the de novo appeal to the County Court such that a sentence of immediate gaol is not, it is submitted, the only appropriate disposition available.
Respondent’s application for adjournment
Mr Eley, who appeared for the respondent in this Court but not in the Magistrates’ Court, suffered a disadvantage in view of the shortness of the period between filing of the application and the matter proceeding to hearing. Understandably, no material had been filed by the respondent as a result. Mr Eley also indicated that he had not had an opportunity to speak to the informant or to read the material filed by the applicant. To assist in that regard, before calling upon his submissions for the respondent, I outlined the substance of the material filed.
Ultimately, Mr Eley’s submission was for an adjournment of the application pursuant to s 8A of the Bail Act. That provision reads as follows:
A bail decision maker may refuse bail for a person accused of any offence if satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding the matter because of the shortness of the period since the commencement of the proceeding for the offence.
Analysis
The applicant is 52 years of age. She suffers from both major depressive disorder and generalised anxiety disorder. She has three adult children, all of whom reside in Melbourne. Her youngest child is 18 years of age and suffers from a physical disability. The applicant cares for her.
The applicant has a protracted history of illicit drug use. She has been a client of Health Works, a primary health and community support organisation for persons with a history of illicit drug use, since December 2018. I understand her to be engaged with treatment and counselling both with that organisation and her consultant psychiatrist Dr Indika Jayathilake.
In a letter dated 28 January 2021 exhibited to the affidavit in support of the application, Damon Brogan of the Health Works Specialist Team Support made the following observations, amongst others, of the applicant:
[The applicant] attends our clinic monthly for clinical review and ongoing care, although in recent months many of these sessions have been conducted remotely, due to COVID-19 restrictions. [She] has always been regular in attending her appointment with us and is always on-time and easily contactable. We receive periodic reports from her dispensing pharmacy which confirm [her] regular attendance there also. We have no recorded instances of [her] presenting here or at her pharmacy in an intoxicated state or exhibiting any other behaviours of concern.
…
In summary, [the applicant] appears to be benefitting from opioid replacement therapy and her underlying substance dependence is well managed. We have not witnesses in her any of the behavioural health or psychosocial issues that often present in the context of chaotic or unmanaged substance use. …
Those sentiments, together with an update and elaboration on her recent achievements in the face of particular hardship, were echoed in a supplementary letter from Mr Brogan dated 16 March 2021. In that letter, he also describes the way that Health Works would be able to support the applicant were she to be placed on a CCO and provide clinical care and support to her for as long as she finds it beneficial.
In the course of discussion, I proposed that an appropriate course may be for an order granting bail pending the further hearing of the matter. Mr Ranjit, who appeared for the applicant (also in this Court but not in the Magistrates’ Court), submitted that I was entitled to do so. Mr Eley opposed that course and submitted that the magistrate made a decision that the applicant was to remain in custody, and in the absence of any further information, he must proceed on the assumption that there were good reasons for doing so. Mr Eley did concede, however, that the applicant has an entitlement to apply to this Court for bail independently of what was decided by the magistrate.
Conclusion and orders
Having considered the material filed and the parties’ submissions, I accepted those advanced for the applicant. Most notably, the applicant had been on bail in the 12 months preceding her plea in mitigation. As the magistrate also conceded, during that time, the applicant has not reoffended or breached her conditions of bail. On the plea, his Honour indicated that the applicant would receive an immediate term of imprisonment (albeit combined with a CCO). Two weeks later, on 25 March, the applicant, with full knowledge of her impending fate, presented at court for sentence. Quite compellingly in my view, the applicant has demonstrated utmost compliance with court orders.
In respect of the respondent’s application for an adjournment pursuant to s 8A of the Bail Act, I was unpersuaded that there was not ‘sufficient information for the purpose of deciding the matter’. To the contrary, the material before the Court and the bail history regarding this offending is telling and sufficiently detailed such that I was satisfied positively that a compelling reason justifying a grant of bail was established and, further, was not satisfied that there was any unacceptable risk.
In any event, to ensure that the respondent was given the opportunity (to which he is entitled) to make any enquiries necessary and present material and argument as to why an order refusing bail should in fact be imposed on the applicant, I adjourned the matter part heard to a date to be fixed by the parties. The circumstances of this case were unusual, but it seemed to me in those circumstances that the applicant’s release on her own undertaking and with a series of conditions was most appropriate.
Consequently, at the conclusion of the hearing, I ordered the following:
(1)Pending the further hearing of this application, the said Sally Gorwell (‘the applicant’) be admitted to bail upon her own undertaking and with the following conditions:
(a)The applicant reside at [REDACTED] in the State of Victoria;
(b)The applicant continue to engage in treatment and counselling with Health Works and follow all lawful directions of Damon Brogon or his nominee;
(c)The applicant not use cannabis, heroin or any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and
(d)The applicant appear:
(i)as and when required by this Court in the week commencing 29 March 2021; and
(ii)at the County Court at Melbourne on 4 May 2021 and thereafter as directed by that court.
(2)The application be adjourned part heard to a date to be fixed, but no later than 1 April 2021.
On 29 March, following confirmation that the respondent would not press revocation of the applicant’s interim grant of bail (and therefore no longer opposed bail), I ordered the following:
(1)The said Sally Gorwell (‘the applicant’) be admitted to bail upon her own undertaking and with the following conditions:
(a)The applicant reside at [REDACTED] in the State of Victoria;
(b)The applicant continue to engage in treatment and counselling with Health Works and follow all lawful directions of Damon Brogon or his nominee;
(c)The applicant not use cannabis, heroin or any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and
(d)The applicant appear at the County Court at Melbourne on 4 May 2021 and thereafter as directed by that court.
(2)Paragraph 2 of the orders made by the Honourable Justice Lasry on 26 March 2021 be revoked.
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