Re Green
[2023] VSC 393
•10 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0024
| IN THE MATTER of the Bail Act 1977 | |
| – and – | |
| IN THE MATTER of an Application for Bail by KYLE GREEN | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2023 |
DATE OF JUDGMENT: | 10 March 2023 |
DATE OF REASONS: | 10 July 2023 |
CASE MAY BE CITED AS: | Re Green |
MEDIUM NEUTRAL CITATION: | [2023] VSC 393 |
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CRIMINAL LAW — Application for bail — Charges relating to contravening Family Violence Intervention Orders, criminal damage, theft and failing to answer bail — 20 charges total — 18 years old — First time in custody — Risk of delay — Exceptional circumstances satisfied — Unacceptable risk not established — Risk can be managed through stringent conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | W Blake | Sarah Pratt & Associates |
| For the Respondent | P Murphy | Victoria Police |
HIS HONOUR:
Introduction
Kyle Green [‘the applicant’] is an 18-year-old in custody for the first time. He has been in custody on remand since 20 December 2022, and as at the date of the hearing of this application, will have spent 64 days in custody.
He seeks bail in the following three matters:
Matter Dates Charges Informant Crooks Alleged offending 27 May 2022
Charged 30 September 2022
Criminal damage
Making a threat to kill
Unlawful assault
Informant Hughes Alleged offending 31 May 2022
Charged 1 June 2022
Theft of motor vehicle
Committing an indictable offence whilst on bail
Informant Montgomery Alleged offending between 16 November to 20 December 2022
Charged 20 December 2022
Persistently contravening a family violence intervention order [‘FVIO’]
Contravening an FVIO intending to cause harm or fear
Contravening an FVIO (seven charges)
Unlawful assault
(two charges)Criminal damage
Committing an indictable offence whilst on bail
Failing to answer bail (two charges)
Outstanding matters
The applicant is currently subject to bail in the following three matters:
Matter Dates Charges Informant Clayton Alleged offending between
3–8 November 2021Charged 2 December 2021
Theft of motor vehicle
Criminal damage
Theft
Informant Fell Alleged offending 2 May 2022
Charged 3 June 2022
Theft of motor vehicle
Handling stolen goods (two charges)
Committing an indictable offence whilst on bail
(two charges)Theft
Dealing with property suspected to be proceeds of crime
Informant Towers Alleged offending 10 October 2022
Charged 13 October 2022
Failing to answer bail
The applicant is also subject to summons in the following three matters:
Matter Dates Charges Informant Ludeman Alleged offending 10 January 2022
Charged 2 March 2022
Robbery
Committing an indictable offence whilst on bail
(two charges)Theft of motor vehicle
Obtaining property by deception
Informant Tinney Alleged offending 2 August 2022
Charged 13 February 2023
Contravening an FVIO Informant Jones Alleged offending 28 October 2022
Charged 4 February 2023
Contravening an FVIO Procedural history
The applicant was arrested and remanded in custody in the informant Montgomery matter on 20 December 2022, following alleged family violence offending against his pregnant ex-partner [‘the first complainant’]. At the time, the applicant was subject to:
(a) a final FVIO with full no-contact conditions protecting the first complainant;
(b) grants of bail in the informants Clayton, Fell and Towers matters;
(c) outstanding arrest warrants in the informants Crooks and Hughes matters (for failing to appear in those matters on 16 November and 12 December 2022, respectively); and
(d) summons in the informant Ludeman matter.
At the time of the applicant’s arrest in the informant Montgomery matter, the arrest warrants in the informant Crooks and Hughes matters were executed and the applicant was also remanded on those matters. No application for bail was made at that time.
On 19 January 2023, the applicant applied for bail in the Werribee Magistrates’ Court in the informant Montgomery, Crooks and Hughes matters. Bail was refused on the basis that he failed to establish exceptional circumstances, and that there was an unacceptable risk that he would commit an offence whilst on bail or endanger the safety or welfare of any person, if granted bail.
In February 2023, the applicant was charged in the informant Tinney and Jones matters, which relate to alleged contraventions of the FVIO in August and October 2022.
His next listing dates are:
Date Matter Type Court 22 February 2023 Informant Jones Mention Werribee Magistrates’ Court 8 March 2023 Informant Tinney Mention Werribee Magistrates’ Court 14 March 2023 Informants Montgomery and Crooks Contest mention Sunshine Magistrates’ Court 20 March 2023 Informant Fell Mention Werribee Magistrates’ Court 31 March 2023 Informants Hughes, Towers, Clayton, and Ludeman Plea Werribee Magistrates’ Court The alleged offending
Informant Clayton matter (bail)
At 4:13am on 3 November 2021, the applicant and four co-accused (Westlow, McCulloch, Dodd, and Postlethwaite) allegedly stole a vintage car from Williamstown. Westlow allegedly drove the group to Williamstown in a Holden Commodore, and waited in the car while the rest of the group attempted to gain access to the vintage car. McCulloch allegedly started the vintage car and, shortly after, reversed it into a car parked nearby. The applicant, Dodd and Postlethwaite then returned to the Holden Commodore, and the group travelled in convoy to the Lawrie Emmins Reserve in Laverton, where they set the vintage car alight. The car, which was valued at $35,000, was completely destroyed. It was recovered from the reserve on 4 November 2021.
Police subsequently obtained CCTV footage from the Williamstown address, and a video depicting the applicant near the burning car from Westlow’s mobile phone.
At 11:00pm on 8 November 2021, the applicant and three co-accused (Westlow, McCulloch, and Dodd) arrived at a service station in Tarneit in a Holden Commodore. Westlow waited in the car, while the applicant, McCulloch and Dodd allegedly stole motor oil and other products, with a total value of $233.07, from the store. The incident was captured on CCTV.
On 2 December 2021, police attended the applicant’s address and arrested him. During a subsequent interview, the applicant:
(a) identified himself in the CCTV stills from Williamstown;
(b) stated that he was not the one who stole the vintage car, but confirmed that he was there when it happened;
(c) confirmed that he was present when the vintage car was set on fire in Laverton; and
(d) made full admissions to the theft from the service station, stating that he did not have the means to pay for any of the items that he stole.
Informant Ludeman matter (summons)
At 11:12am on 31 December 2021, Russell, Westlow, McCulloch and a fourth unidentified person allegedly attended a wreckers’ yard in Pakenham, spoke to the owner, walked around for 20 minutes, and then left.
At 12:30am on 1 January 2022, Russell, Westlow, McCulloch and a fourth unidentified person allegedly returned to Pakenham, entered two wreckers’ yards, and stole three cars; one of those being a purple Holden Commodore.
Between 9:00pm on 9 January and 2:30am on 10 January 2022, registration plates were stolen from a car parked in Strathmore.
At 2:30am on 10 January 2022, the stolen Holden Commodore drove past a male [‘the second complainant’] as he walked along Melville Road in Brunswick West, then did a U‑turn and pulled up beside him. Two men then exited the car, and one repeatedly told the second complainant: “give me your fucking shit”. Both men then assaulted the second complainant, punching him to the face and dragging him to the ground. A third man exited the vehicle and joined the assault, holding the second complainant in a choke hold and kneed him to the face. The men took the second complainant’s wallet and car keys, and demanded the pin code for his bank cards, before returning to the stolen car and driving away.
The second complainant sought assistance at a nearby service station and was subsequently transported to Royal Melbourne Hospital. As a result of the alleged incident, the second complainant was vomiting, uneasy on his feet, suffered abrasions, swelling to his jaw, soreness to his head, and bruising to his head and left arm.
Between 2:37am and 6:05am, CCTV captured the applicant, Russell, Westlow and McCulloch attending seven service stations in the stolen Holden Commodore, with the stolen licence plates affixed. Russell, McCulloch and the applicant were captured using the second complainant’s stolen cards to make numerous transactions for cigarettes, visa gift cards, lighters, mints, and bongs; totalling $1,362.14. In particular, it is alleged that:
(a) Russell made 10 transactions totalling $839.62, and attempted a further $105.95 transaction which declined;
(b) McCulloch made six transactions totalling $416.57; and
(c) the applicant made one transaction totalling $105.95.
At 6:05am, CCTV captured the applicant, McCulloch and Russell arriving at the applicant’s address in Hoppers Crossing in the stolen Holden Commodore.
On 12 January 2022, a member of the public found the second complainant’s wallet in Cobram, 300 metres from Russell’s mother’s address. Police subsequently attended Russell’s address, where they located the stolen Holden Commodore with a different set of false registration plates affixed. Russell, McCulloch and Westlow were located at the address, arrested, and interviewed.
Regarding the alleged theft of the purple Holden Commodore on 1 January 2022, the co‑accused made the following comments:
(a) Westlow stated that she was with the applicant, Russell, McCulloch, and the applicant’s family members at the applicant’s house in Hoppers Crossing on 1 January 2022, and did not leave the house.
(b) McCulloch initially denied ever attending a wreckers’ yard in Pakenham, then stated he remembered something about a wreckers’ yard, and subsequently identified himself, Russell and Westlow in a CCTV image. He stated that he did not remember much, as he had been smoking cannabis that day.
(c) Russell stated that he went to the wreckers’ yard earlier in the day to get some car parts, and denied any knowledge of the alleged thefts.
Regarding the alleged assault, robbery and theft on 10 January 2022, and the purple Holden Commodore located at Westlow’s address, the co-accused made the following comments:
(a) Westlow denied involvement in the offending and stated that she did not drive the purple Holden Commodore that night;
(b) McCulloch stated that the purple Holden Commodore belonged to Russell. He admitted going to the shops in this car, but stated that he did not know anything else about it, and claimed to have never been in the car in metropolitan Melbourne; and
(c) Russell denied any knowledge of the robbery of the second complainant. He identified himself in some of the CCTV images from the service stations. He initially claimed that he only purchased mints, and that he paid for these in cash, however subsequently stated that he could not remember if he made any further purchases and that he was using ice (crystal methamphetamine) at the time. He gave further conflicting accounts, including that he was asleep in the car at the time, that he could not remember who else was in the car, that there were five people in the car, and that he was just given the second complainant’s bank cards. Finally, he stated that he could not remember seeing the purple Holden Commodore at Westlow’s address.
On 13 January 2022, the stolen purple Holden Commodore was searched and clothing worn by Russell, Dodd and McCulloch was located. Fingerprints matching Dodd and Russell were also found on the car and the stolen registration plates.
On 25 January 2022, police executed a search warrant at the applicant’s address in Hopper’s Crossing. The applicant was located at the address and arrested.
During a subsequent interview, the applicant stated that Russell, Westlow and McCulloch had previously brought a purple Holden Commodore to his house, but he had never been inside it. He stated that he knew it was stolen and that it had stolen goods in it. He further stated that Russell and McCulloch kept bringing cars to his house and that he told them to stop doing it. In relation to the alleged offending on 10 January 2022, the applicant gave varying accounts:
(a) he initially stated that Russell, Westlow and McCulloch told him that they jumped someone with a knife and stole his cards and brought cigarettes, but denied any involvement himself;
(b) he then admitted he had been in the stolen Holden Commodore once, but only in the Werribee South area. When shown a CCTV image from a service station, he admitted that it was him in the CCTV but couldn’t remember where the service station was. He stated that this was the one day he was in the car. He denied making any credit card purchases;
(c) he then claimed he saw Russell run towards someone with a machete, and McCulloch grab him and pull him back to the car. He thought this was in the Dandenong area. He denied making any purchases with the second complainant’s bank card; and
(d) he later detailed a different recollection of events, stating that McCulloch and Russell assaulted a man, stole his credit card and started using the credit card.
Informant Fell matter (bail)
At 6:00am on 1 May 2022, a 2011 Volkswagen valued at $15,000 was stolen from a Point Cook residence.
In the early hours of 2 May 2022, the applicant and two co-accused (Dodd and Traianon) drove the stolen Volkswagen to a residence in Werribee South. While Traianon remained in the car, the applicant and Dodd allegedly gained access to a car parked at the residence and stole a subwoofer speaker valued at $650. The applicant and co-accused then returned to the stolen Volkswagen and drove to a friend’s address.
At 3:00pm on 2 May 2022, the third complainant saw his stolen subwoofer being advertised for sale on Facebook marketplace. The third complainant’s friend then arranged to meet with the applicant to buy it.
At 3:30pm, the third complainant and two friends met with the applicant, Traianon and another co-accused. The applicant and co-accused arrived in the stolen Volkswagen affixed with false plates. The group had a short interaction, recorded on video by the third complainant’s friend, in which the third complainant revealed that the stolen subwoofer was his. The parties left shortly after, and the third complainant and his friends attended the Werribee Police Station to report the incident.
At 9:45am on 3 May 2022, police located the stolen Volkswagen with false plates parked in Malvern East. Dodd and Traianon were sleeping inside, and appeared to be drug affected. The pair were arrested and transported to Prahran Police Station for interview.
On 4 July 2022, the applicant presented to the Werribee Police Station and was interviewed by police. The applicant made full admissions to the alleged offending, stating:
(a) in relation to the stolen Volkswagen, “If I didn’t steal it, I would’ve been bashed”; and
(b) in relation to selling the subwoofer, “[Traianon] made me do it”.
Informant Crooks matter (remand)
At 4:00am on 27 May 2022, the applicant allegedly grabbed the neck of his then partner, the first complainant, during an argument and pushed her. When she took out her phone to call police, the applicant allegedly threw it to the ground, smashing the screen.
At 12:00pm, the first complainant saw the applicant on the street, holding what appeared to be a machete. When she refused to go with the applicant, he allegedly said “if you don’t talk to me, I will kill you”. The applicant then left the area, and a neighbour who witnessed the incident called the police. Upon police attendance, the first complainant disclosed the alleged offending but declined to make a formal statement.
On 29 May 2022, the applicant was arrested and transported to Werribee Police Station for interview. In response to the allegations, the applicant:
(a) confirmed that he had an argument with the first complainant, saying she was “going off at me”;
(b) stated that he went to take the first complainant’s phone and she dropped it. He further stated that the phone screen was already damaged, and that if he had done it, it was an accident;
(c) stated that he told the first complainant “I will do something if you don’t talk to me”. He did not recall exactly what he said but denied threatening to kill her; and
(d) in response to being shown a photo of a bruise on the first complainant’s elbow, stated that he thought he had caused it by grabbing it too tightly. He further stated that he had grabbed her elbow to stop her hitting him.
Informant Hughes matter (remand)
At 1:05am on 30 May 2022, the applicant and Dodd allegedly stole a 2018 Holden Commodore valued at $30,000 from a residential garage. CCTV footage from the address shows two males arriving at the address in a Hyundai Hatchback, gaining access to a vehicle parked in the driveway, using a remote control in that vehicle to open the garage, gaining access to the Holden Commodore located in the garage, and driving away in that car.
At 4:50pm on 31 May 2022, police saw the stolen Holden Commodore driving in Point Cook and enter Sanctuary Lakes Plaza. CCTV subsequently obtained from the plaza is said to show the applicant, Dodd, and the first complainant exit the vehicle.
At 8:00pm on 1 June 2022, police attended the applicant’s address and arrested him. During a subsequent interview, the applicant:
(a) identified himself in the CCTV footage from Sanctuary Lakes Plaza;
(b) stated that he had been inside the car on two occasions, and was aware it was stolen; and
(c) denied any involvement in the theft of the vehicle.
The applicant was subsequently charged and bailed by police.
On 3 June 2022, Dodd was arrested and remanded in custody in relation to the alleged offending and additional matters.
On 8 June 2022, the first complainant was arrested, interviewed, and subsequently released without charge.
Informant Tinney matter (summons)
On 10 June 2022, a final FVIO with full no-contact conditions was made in the Werribee Magistrates’ Court naming the applicant as the respondent and the first complainant as the protected person. The duration of the order is one year and it expires 9 June 2023. Police applied for the FVIO on behalf of the first complainant, following the alleged family violence offending on 27 May 2022 (informant Crooks matter).
On 2 August 2022, the first complainant asked the applicant if she could come to his house in Hoppers Crossing, which he agreed to. At approximately 3:00am on 3 August 2022, the applicant and the first complainant had a verbal argument and the first complainant left the address. An unidentified person called the police, who attended and spoke to the applicant. The applicant made full admissions.
Informant Towers matter (bail)
On 10 October 2022, the applicant failed to answer bail in the Werribee Magistrates’ Court in the informant Fell matter.
Informant Jones matter (summons)
On 28 October 2022, the first complainant and the applicant began arguing at his address in Hoppers Crossing. The applicant’s mother asked the first complainant to leave the house. The applicant then took the first complainant’s phone and threw it out the window, following which the first complainant threw the applicant’s Xbox controller out the window. The applicant then left the address. A third party called the police, who attended and obtained a statement from the first complainant. She stated that she had been living with the applicant and his family for six months as she had nowhere else to go, and that she wanted the FVIO to be varied so that she and the applicant could still see each other.
On 20 December 2022, the applicant was interviewed regarding the incident. He admitted that the first complainant had attended his house, however denied inviting her there.
Informant Montgomery matter (remand)
Failure to appear
On 16 November 2022, the applicant failed to appear on summons in the Werribee Magistrates’ Court in the informant Crooks matter and a warrant was issued.
On 12 December 2022, the applicant failed to answer bail in the Werribee Magistrates’ Court in the informant Hughes matter and a warrant was issued.
Family violence incident
During the period of the current FVIO, the first complainant became pregnant with the applicant’s child.
At 6:00pm on 19 December 2022, the applicant entered the first complainant’s home address via an unlocked door. Shortly after, the applicant began arguing with the first complainant about her pregnancy. As the argument escalated, the first complainant went to the bathroom. The applicant followed her, grabbed her by the waist in an attempt to grab her phone, and pushed her, causing her to fall into the wall. The applicant then took her phone, went to the living room, punched a hole in the wall, slammed the front door several times, and left. The first complainant called police, who attended and obtained a statement from her.
A few hours later, at 11:08pm, the applicant returned to the first complainant’s address. He berated the first complainant, called her derogatory names, and told her that she needed to get an abortion. The applicant then grabbed the first complainant by the collar, punched her to the right arm, and pushed her into the washing machine. The first complainant called her father for help, and the applicant left. Police then returned to the address and obtained a further statement from the first complainant.
At 8:30am the following morning, the applicant returned to the first complainant’s address, this time bringing a female associate, Waldron. Waldron smashed the front window of the address, threatened “to bash” the first complainant, and continually yelled for her to come outside. The applicant then entered the house via the smashed window and attempted to open the door to the bathroom, where the first complainant was hiding. The applicant allegedly said “you’re a fucking dog for calling the cops to my Nan’s” and demanded that the first complainant open the door and come out. The first complainant refused to open the door, and screamed out for police assistance over the phone. The applicant and Waldron left shortly after.
Police attended and obtained a statement from the first complainant. While police were at her address, Waldron was seen driving past, at which point she was stopped and arrested (subsequently being charged and released on bail the same day). Police subsequently located the applicant 200 metres away from the first complainant’s address, and transported him to Werribee Police Station for interview. During that interview, the applicant:
(a) acknowledged the existence of the FVIO, and stated that he understood its conditions;
(b) admitted to attending the first complainant’s address several times, explaining that he had been staying at the address, and said that the first complainant consented to this;
(c) admitted punching a hole in the wall;
(d) acknowledged that a physical altercation took place between himself and the first complainant, but denied assaulting her;
(e) admitted telling the first complainant that she should get an abortion, but denied making any threat towards the unborn child; and
(f) regarding the alleged incident on the morning of 20 December 2022, stated that he was asleep in bed at the first complainant’s address when Waldron smashed the front window.
It is apparent that the applicant is facing a daunting amount of allegations of misconduct over a period of about 12 months.
The applicable legislation
As the applicant is charged with Schedule 2 offences[1] under the Bail Act 1977 (Vic) [‘the Act’], which are alleged to have been committed while he was on bail and summons for other Schedule 2 offences,[2] bail must be refused unless he satisfies the court that exceptional circumstances exist that justify the grant of bail.[3] In considering whether the applicant has satisfied this test, the court must have regard to the surrounding circumstances, including those relevant under section 3AAA(1).[4]
[1]Namely, indictable offending alleged to have been committed whilst on bail and summons for indictable offending; persistently contravening an FVIO; and offending against the Act; see the Act, sch 2, items 1, 19, and 30.
[2]Namely, indictable offending alleged to have been committed whilst on bail for indictable offending; making a threat to kill that was also a family violence offence; and offending against the Act; see the Act, sch 2, items 1, 7 and 30.
[3]The Act, ss 4AA(2)(c)(i)–(ii) and 4A(1)–(2).
[4]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that risk is unacceptable.[5] In determining this, the court must have regard to the surrounding circumstances and whether there are any bail conditions that may mitigate the risk so that it is not unacceptable.[6]
[5]Ibid s 4E(1)–(2).
[6]Ibid s 4E(3).
Further, section 5AAAA of the Act provides that, in considering the release of the applicant on bail, the court must:
(a) make inquiries of the prosecutor as to whether there is in force an FVIO, family violence safety notice or recognised domestic violence order made or issued against the applicant; and
(b) in circumstances where the applicant is charged with family violence offences, consider whether — if the applicant were released on bail — there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of an FVIO.
The applicant’s personal circumstances
The applicant is 18 years old with no criminal history. This is his first time in custody.
He normally resides with his family, and proposes to return to his family home if granted bail.
The applicant was employed at Young Guns Container Crew (a company which packs and unpacks shipping containers) for one month prior to his remand in custody. He reports being able to return to this employment if granted bail.
Family violence intervention order in force
The applicant is the respondent to a final FVIO with full no-contact conditions protecting the first complainant. The order was made on 10 June 2022 and remains in effect until 9 June 2023.
The present remand matters include allegations that the applicant persistently contravened the FVIO between 19 and 20 December 2022 by contacting the first complainant, going to or remaining within 200 metres of her address, being within five metres of her, and committing family violence against her.
The applicant’s contentions
Exceptional circumstances
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Nature and seriousness of the alleged offending
The applicant concedes that the nature of the charges against him are serious.
Strength of the prosecution case
With regards to the informant Montgomery matter, the applicant submits that there is a factual dispute in relation to the summary but that the charges have otherwise resolved.
With regards to the informant Fell matter, the applicant states that there is a potential defence of duress.
With regards to the informant Crooks matter, the applicant denies choking the first complainant and states that the damage that occurred was accidental.
Finally, the informant Hughes, Towers, Clayton and Ludeman matters have resolved.
Criminal history
The applicant highlights that he has no criminal history.
Family support, stable accommodation and employment
If granted bail, the applicant is able to reside with his family in Point Cook. The applicant submits that his mother, Ms Green, is able to provide supervision, and is willing to provide an undertaking that she will report any bail breaches to police.
During the hearing of the application, Detective Senior Constable Montgomery gave evidence that a police LEAP database check conducted on Ms Green revealed an allegation that she had been arrested on 16 February this year for the possession of 0.08 grams of methylamphetamine when she attended the Ravenhall correctional facility in which her son was remanded.
Ms Green has been charged with possessing a drug of dependence and failed to appear at the Sunshine Magistrates’ Court this year. It appears she has not been charged with an attempt to introduce the drug into the prison. On interview, she provided a reason that she was not aware that the drug was in her possession and that someone else put it into her belongings. When asked during the hearing about these allegations, she told the court that she had not used the bag in a couple of years and she was in a rush that particular morning. Ms Green stated she was not aware that the drug was in her bag, but agreed she had been a past user of illicit substances. Apart from that aspect, the informant did not have any concerns about the proposed residential address to which the applicant could be bailed.
Under cross-examination, the informant told the court that the applicant’s mother has no prior convictions, and that her partner does not have any convictions at least for the last 20 years.
The applicant called Ms Green to give evidence. Ms Green confirmed she was aware of the charges before the court in respect of the applicant. She also confirmed she knew the applicant was a user of drugs. Further, Ms Green explained to the court the circumstances of the proposed residential address and described the positive relationship that the applicant has with his family. She confirmed that, should her son be granted bail, she was prepared to have him live with her in his own room.
Ms Green also told the court about events within the prison concerning her son, including demands that appear to have been made on him. She stated that this had affected the applicant’s mental health and that he was quite scared in custody. Ms Green indicated her son was taking antidepressant medication in custody and that he had been diagnosed with depression and anxiety.
She also told the court she was aware of the support available to the applicant through Youth Junction. Ms Green also indicated awareness of the prospective employment for her son. Finally, she described the family support available to the applicant and her belief that the applicant could comply with conditions of bail was he to be released. Specifically, Ms Green gave an undertaking to the court that if she became aware the applicant was not complying with bail conditions, she would contact the police.
Under cross-examination, the applicant’s mother was asked about the extent of her knowledge regarding the charges faced by her son, including those involving his ex‑partner. Ms Green was also asked a number of questions about aspects of the relationship between her son and his ex‑partner. She explained that the first complainant would visit her house (where the applicant was living), and on occasions, Ms Green would send her away.
Ms Green was also asked about the letter provided by Matthew McKinn, in which the applicant was offered continuing employment. She confirmed that she had told Mr McKinn about the charges faced by the applicant, including the family violence matters.
Special vulnerability
The applicant submits that he is vulnerable in a custodial environment, highlighting that he is 18 years old and in custody for the first time.
Availability of treatment or bail support services
The applicant has been assessed by NorthWest Safe Youth Project [‘NWSYP’] and deemed suitable for their pre-sentence program of up to nine months’ duration.
NWSYP recommends the following services, in order to respond to the applicant’s needs, challenge his reasons for offending, and prevent further involvement in the criminal justice system:
(a) intensive offence-focused case management;
(b) ongoing engagement with youth mental health services;
(c) behavioural and anger management treatment via Youth Junction’s countering anger and learning moderation (CALM) program;
(d) re-engagement with his general practitioner; and
(e) support in parenting and recreational endeavours within the community.
A letter was also provided to the court from George Green and Jo Malcolm‑Black of Youth Junction. It outlines extensive supports by way of mental health and behavioural treatment; offence focused case management, pro‑social programs and wellbeing strategies available to the applicant.
Delay and likely sentence
At the time of the bail hearing, the applicant will have spent 64 days (or just over two months) in custody. The applicant submits that he is contesting the informant Montgomery, Fell, and Crooks matters, and notes that ongoing case conferencing is required. The charged offences are still in the mention stages (with the exception of the informant Hughes matter, which is proceeding as a plea).
The applicant submits that there is a significant risk that he will spend more time on remand than what would otherwise be imposed as a sentence, balancing the seriousness of the offending with his youth and absence of criminal history.
Counsel for the applicant further submits that even if ultimately found guilty of the charges in these matters, it is highly unlikely that the applicant would receive a custodial sentence, let alone a period of custody that exceeds the time he has already spent in custody, in light of sentencing practices and conventions for first time offenders who are children.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of the following conditions of bail, namely that the applicant:
(a) reside at his mother’s residential address in Point Cook;
(b) engage with treatment with Youth Junction;
(c) abide by a curfew (at the court’s discretion);
(d) report to the Werribee Police Station (at the court’s discretion);
(e) not contact any witnesses for the prosecution;
(f) comply with any active intervention orders;
(g) not possess or use any drugs of dependence; and
(h) not leave the state of Victoria.
The respondent’s contentions
The respondent concedes that the court may find exceptional circumstances exist that justify a grant of bail. However, bail is opposed on the basis that the applicant would pose an unacceptable risk of endangering the safety and welfare of the first complainant, committing an offence whilst on bail, and failing to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Surrounding circumstances
Criminal history
The respondent acknowledges that the applicant has no prior criminal history.
Bail compliance history
The respondent submits that the applicant has a demonstrated history of committing offences whilst on bail and failing to answer bail.
Family violence intervention order in force
In relation to the consideration of family violence risks pursuant to section 5AAAA of the Act, the respondent refers to the following:
(a) On 27 May 2022, the applicant is alleged to have committed family violence against the first complainant (informant Crooks matter). No FVIO was in place at the time.
(b) On 10 June 2022, a final FVIO was made with full no-contact conditions protecting the first complainant. The period of the order is one year.
(c) On 3 August 2022, the applicant is alleged to have contravened the FVIO by communicating with the first complainant (informant Tinney matter).
(d) On 28 October 2022, the applicant is alleged to have contravened the FVIO by being within five metres of the first complainant (informant Jones matter).
(e) On 19 and 20 December 2022, the applicant is alleged to have committed family violence against the first complainant (informant Montgomery matter).
The respondent submits that there are several significant risk factors present, which they have identified using the ‘Common Risk Assessment Framework’.[7] Namely:
[7]A tool used by police to analyse and identify risk for future family violence.
(a) escalation in behaviour;
(b) past family violence history with the same affected family member;
(c) the applicant being charged with contraventions of an intervention order; and
(d) previous contraventions of court orders.
The respondent submits that these risk factors significantly increase the risk of the first complainant being killed or seriously harmed by the applicant.
Family support, stable accommodation and employment
The respondent accepts that the applicant is able to reside with his mother in Point Cook. It also notes the availability of employment for the applicant.
Special vulnerability
The respondent acknowledges the applicant’s age, and that it is his first time in custody.
Availability of treatment or bail support services
The respondent acknowledges the availability of treatment via Youth Junction.
Complainant’s views on bail
The first complainant has been consulted regarding her views on bail, and has expressed the view that she does not care whether or not the applicant is granted bail, as long as he complies with the FVIO.
Delay and likely sentence
The respondent submits that the applicant has contributed to the delay of these matters through non-attendance at court, which has required police to execute multiple warrants.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant would be an unacceptable risk of endangering the safety and welfare of the first complainant, if granted bail.
The respondent relies on the family violence allegations against the applicant, including that:
(a) prior to an FVIO being made, he allegedly threatened to kill the first complainant (informant Crooks matter); and
(b) while the FVIO was in force, and in the context of the first complainant being newly pregnant with his child, he allegedly contravened the FVIO by attending her address and using violence against her.
The respondent submits that the applicant has shown no regard for the FVIO. The respondent further submits that the applicant has put the first complainant and their unborn child at risk of harm, and that the first complainant’s pregnancy presents a significant risk factor.
Committing an offence whilst on bail
The respondent submits that the applicant has a demonstrated history of committing offences whilst on bail.
Failing to surrender into custody in accordance with the conditions of bail
The respondent submits that the applicant has a demonstrated history of failing to answer bail.
Analysis and conclusions
I note that the application for bail is opposed by the respondent. However, in the respondent’s affidavit it is stated that “the prosecution concedes that the court may find exceptional circumstances exist that justify a grant of bail”.
Noting that concession, it still must be observed that the determination of whether exceptional circumstances exist always remains a matter for the court’s judgment; however, the respondent’s concession is helpful in considering the issue.
Has the applicant shown that exceptional circumstances exist?
As he is entitled to do, the applicant relies on a combination of factors to satisfy the exceptional circumstances test. It is well accepted that various circumstances by themselves may not satisfy the test, but in combination they can meet the threshold.[8]
[8]Re Brown [2019] VSC 751 [65] (Lasry J).
As to the nature and seriousness of the alleged offending, when all matters are considered against the applicant together, the applicant faces a large number of charges alleged to have been committed in the period between November 2021 until late 2022, about a period of a year.
However the court must remain mindful of the fact that this application directly concerns a grant of bail in respect of the three matters involving informants Crooks, Hughes and Montgomery. The remaining matters only form part of the surrounding circumstances required to be considered in respect of both tests.
It is notable that, prior to the first set of charges in November 2021, it appears the applicant has no previous criminal history and, therefore, no previous bail history. It is plain that some of the allegations made against him are very serious, particularly those involving allegations of violence towards his ex-partner. Furthermore, it is alleged that the applicant was involved in the theft of motor vehicles, including one particularly valuable vehicle which it is alleged was destroyed by arson.
In my opinion it is correct to accept that the charges before the court, or at least some of them, are serious. It is alleged that the applicant on a number of occasions breached court orders which relate to the protection of his former partner. The allegations of multiple incidents of alleged violence are extremely concerning, particularly those that involve physical assault, the smashing of property, examples of anger and a threat to kill.
Furthermore, it is alleged that on one occasion he confronted and repeatedly assaulted the first complainant when he was angry. He appeared to demonstrate a complete loss of self-control. Experience of the criminal justice system plainly shows that the kind of conduct that is alleged can be extremely dangerous, too often resulting in fatal consequences.
I am concerned that the applicant’s anti-social behaviour appears to be escalating. In that context, in my view, it is imperative and urgent that the applicant, who is only 18 years old, be assessed in respect of any mental health issues that may exist. The applicant concedes that the nature of the charges against him are serious. As above, some of the matters have resolved and await plea and sentence, while others appear to involve a prospect of future resolution.
Taking all these matters into account, the applicant submits there is a significant risk he will spend more time on remand if he is not granted bail than he otherwise would have imposed as a sentence. In particular, the applicant relies on his young age and absence of criminal history to support this argument. Furthermore, he submits that even if he is found guilty of the charges in the contested matters, it is highly unlikely that he would receive a custodial sentence in any event. On the other hand, the respondent notes that the applicant has contributed to the delay in resolving these matters through his non-attendance at court and the requirement of police to execute multiple warrants.
Noting the applicant’s submission, in my opinion it is too difficult at this stage to determine this issue one way or the other. In light of the many matters that the applicant faces and with the mixture of contested, unresolved and unfinalised sentencing outcomes, it remains uncertain as to what the ultimate sentencing outcome will be. Nevertheless, the court is mindful of the applicant’s young age and lack of previous convictions. It therefore is a reasonable possibility that a sentencing court may conclude that the applicant’s offending can be dealt with by a non‑custodial outcome. The applicant also relies on the fact that he has the continued support of his mother, who is able to provide supervision and an undertaking to report the applicant to the police should he breach bail.
As an added pro-social factor, the applicant relies on the fact that he has been assessed by NWSYP as suitable for a pre-sentence program, should he be granted bail. In this regard, the applicant relies on a report dated 16 January 2023 authored by George Green, a youth worker case manager with Youth Junction. The report states that suitable services would include:
(a) intensive case management;
(b) mental health treatment (involving ongoing engagement with youth‑specific mental health services, specifically to ensure he is receiving mental health support tailored to the specific treatment goals);
(c) behavioural anger management treatment (to support the applicant with anger management treatment and in order to develop health coping strategies during heightened situations); and
(d) support in respect of physical health and pro-social recreational programs.
As stated above, given the scale of the applicant’s alleged offending over a short period of time, and in the context of his lack of previous criminal history, it is of particular importance that he be assessed for and be provided with mental health treatment and anger management counselling (as set out in the letter by Mr Green).
Further factors which the applicant relies on include his ability to return to employment with the Young Guns Container Crew, which would have the advantage of providing some structure and income in the period leading up to the determination of the applicant’s outstanding matters. Finally, the applicant relies on his vulnerability, young age and the fact that he is in custody for the first time.
In all the circumstances put forward, I am prepared to accept that the exceptional circumstances test has been met. When considered in combination, all of the matters put forward reach the legislative threshold. Of particular importance is the applicant’s young age and the fact that he is experiencing a custodial environment for the first time.
In coming to this conclusion, I have taken into account the surrounding circumstances, as I am obliged to do, which in this case particularly concerns the alleged continuing misconduct over a short period of time. I have also taken into account the matters set out in section 5AAAA of the Act, which requires the court to consider the risk that the applicant would commit family violence if released on bail, and whether any such risk can be mitigated by the imposition of bail conditions or the making of a further FVIO.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Having accepted that the exceptional circumstances test has been met, I must now consider the respondent’s submission that the applicant represents an unacceptable risk of committing further offending, obstructing the course of justice and placing both the complainant and community at risk. The question is whether the respondent has satisfied the court that the risk is an unacceptable one. In assessing this question, I am obliged to take into account the surrounding circumstances, which I have done, and also the matters set out in section 5AAAA of the Act.
In the applicant's case, I have given the question of unacceptable risk careful and anxious consideration. In my opinion, there is a risk that attaches to the applicant should he be released on bail. However, the question to ask is not whether the risk can be eliminated, but whether it can be reduced to an acceptable level. Typically, this can be achieved through the application of stringent bail conditions.
As stated, the applicant is young. Whilst that does not mean that he should be automatically granted bail, it does nevertheless inform and have relevance to the resolution of an application such as this. Furthermore, he has had no prior convictions. On the other hand, he is alleged to have committed a significant list of criminal offences over the relevant period of time.
Some allegations involved serious violence in the company of others, the theft of motor vehicles (and other items) in the company of others, arson, failure to appear on bail and instances of violence towards his ex-partner.
As I have discussed above, the applicant relies on the ongoing support offered by his mother and her partner, should bail be granted. It appears unchallenged that the applicant can live at his mother’s house, along with other members of his family, and there is sufficient room for him to have his own bedroom.
The applicant’s mother gave quite detailed evidence, canvassing a number of the matters relevant to the applicant. Having listened and considered her evidence carefully, it is apparent to me that she did not have a full understanding of the charges faced by the applicant, the overall seriousness of his situation, or the important circumstances relating to this application.
In some respects, her evidence did not fill me with a high degree of confidence. But that said, I accept she gave evidence in good faith, and is willing to provide ongoing support for her son. This is important in considering a bail application relating to a young person such as the applicant. The applicant’s mother also gave an undertaking to inform the court if she becomes aware of the applicant breaching any of his bail conditions — a matter that is to be taken very seriously.
I am also mindful that not all matters alleged against the applicant are likely to resolve soon, and there will be a delay of uncertain duration.
Therefore, having considered all the relevant matters put forward on the applicant’s behalf and the surrounding circumstances, I am of the opinion that at this point the respondent has not satisfied me that the risk is currently an unacceptable one. With some degree of hesitation, I am prepared to accept that the risk posed by the applicant can be ameliorated to an acceptable level through the imposition of stringent conditions.
As the applicant is alleged to have committed serious offending in the company of associates, one way the risk level can be reduced is through a condition of bail that prevents the applicant from associating with his alleged co-offenders. Furthermore, as the applicant is alleged to have committed offences of violence against his ex‑partner, a condition of bail will be imposed that prevents any contact whatsoever, direct or indirect with the first complainant.
The applicant must realise that this grant of bail is finely balanced and his immediate future is on a knife edge. He also must realise that, if he breaches the conditions that will be imposed or commits any other offending whilst on bail, he will inevitably return to custody.
Accordingly, bail will be granted on the condition that the applicant:
(a) attend the Sunshine Magistrates’ Court on 14 March 2023 and the Werribee Magistrates’ Court on 31 March 2023 and then surrender himself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody;
(b) reside at his mother’s address in Point Cook, Victoria, and not change that address without the leave of the court;
(c) remain at those premises between the hours of 8:00pm and 5:00am each day for the duration of bail, unless in the company of his mother;
(d) present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) notify the informant at least 14 days in advance of any proposal to change his place of residence;
(f) report Monday, Wednesday and Friday, or the nearest day thereafter if it falls on a public holiday, to the Officer in Charge of the Police Station at Werribee, or his or her nominee, between the hours of 9:00am to 6:00pm;
(g) report to Youth Junction Inc, or their nominee, within two working days after this order coming into force;
(h) engage in treatment with Youth Junction Inc;
(i) comply with all lawful directions of Youth Junction Inc;
(j) not contact, directly or indirectly, the co-accused in the matters the subject of the charges against the accused, for the duration of the bail period;
(k) comply with any active Family Violence Intervention Orders;
(l) not possess or use any drugs of dependence;
(m) not contact, directly or indirectly, any witness for the prosecution, except the informant;
(n) not possess or use more than one mobile phone;
(o) provide the informant with the phone number and IMEI number of the mobile phone he possesses or uses within 24 hours of first having access to that mobile phone;
(p) produce any mobile phone that he possesses or uses for inspection upon the reasonable request of the informant or his nominee;
(q) not leave the State of Victoria;
(r) surrender any passport he may have to the informant within 24 hours of release, and not apply for any other passport;
(s) not attend any points of international departure;
(t) not apply for any passport or travel document, whether directly or indirectly, or cause any other person to do so on his behalf; and
(u) reappear before the court for judicial monitoring to review his compliance with this order at 9:30am on a date to be fixed, and any further dates this court appoints during the course of this order.
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