Re Griffin
[2020] VSC 626
•24 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0188
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER OF an application for bail by TAYLOR GRIFFIN |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 August 2020 |
DATE OF RULING: | 24 August 2020 |
CASE MAY BE CITED AS: | Re Griffin |
MEDIUM NEUTRAL CITATION: | [2020] VSC 626 |
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CRIMINAL LAW — Application for bail — Charges of aggravated burglary, intentionally causing serious injury in circumstances of gross violence, making threats to kill and committing an indictable offence whilst on bail — New facts established — Whether compelling reason exist — Delay caused by COVID-19 — Acceptance in residential drug rehabilitation program — Bail granted on interim basis with conditions — Bail Act 1977 (Vic) ss 3AAA, 4AA, 4C, 4D, 5AAAA, 4E, s 18AA, — Re Application for Bail by Taylor Griffin [2020] VSC 312.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sala | Emma Turnbull Lawyers |
| For the Respondent | Mr N Hutton | Office of Public Prosecutions |
HIS HONOUR:
Taylor Griffin (the ‘applicant’) seeks a grant of bail in respect of nine charges that arise from an incident on 15 January 2020 involving the applicant’s former partner (‘BS’) and her friend (‘MM’). The applicant is charged with:
·two counts of aggravated burglary (offensive weapon and person present);
·intentionally causing serious injury in circumstances of gross violence;
·intentionally causing serious injury;
·recklessly causing serious injury;
·intentionally causing injury;
·recklessly causing injury;
·making threats to kill; and
·committing an indictable offence whilst on bail.
The applicant has been in custody since the date of his arrest on 15 January 2020.
He has previously been refused bail on two occasions, most recently in this Court on 27 May 2020 by J Dixon J.[1] Having read her Honour’s reasons, her refusal of bail was on the basis that the applicant had not shown a compelling reason justifying the grant of bail.
[1]Re Application for Bail by Taylor Griffin [2020] VSC 312 [41]–[42] (‘earlier bail decision’).
Her Honour went on to express the belief that, despite the supports available to him, ‘the applicant is quite likely to relapse into drug use [and t]he mental and emotional chaos that might then ensue’[2] would, in combination with other factors, increase his risk of engaging in the conduct of the kind identified in s 4E(1) of the Bail Act 1977 (Vic) (the ‘Act’).
[2]Ibid [43].
The present application, filed on 10 August 2020, is expressed to be made on the basis of new facts and circumstances.[3] While the applicant largely relied on the same grounds as those advanced in the previous application, the first new circumstance on this application is that he has been accepted into a residential rehabilitation program in Shepparton known as The Cottage to address his drug use.
[3]Bail Act 1977 (Vic) s 18AA (‘Bail Act’).
The second new circumstance is that, since 27 May 2020, the delay facing those charged with indictable offences has changed significantly as a result of the second wave, as it is called, of the COVID-19 virus and the Stage 4 lockdown, which has affected the Melbourne metropolitan area and Mitchell Shire, and the Stage 3 lockdown that seems to have afflicted the rest of the state.
Counsel on behalf of the respondent indicated that it is not in contention that these are new facts and circumstances that justify the making of the application.
I also note that the matter is next listed for a contested committal hearing on 2 March 2021 at the Melbourne Magistrates’ Court.
The alleged offending
The following summary of the alleged offending is extracted from J Dixon J’s earlier ruling:
The charges of aggravated burglary relate to the applicant’s attendance at 158 Chirnside Street, Kingsville which was the residence of BS and her father on 15 January 2020.
BS was in bed with her friend MM, when it is alleged that the accused entered as a trespasser and attacked MM with a crowbar to the arms and head causing him serious injury. The accused had been in a relationship with BS for approximately three months, but she alleges that she had recently ended the relationship.
By way of background it seems that BS was seeking to end her relationship with the applicant in January 2020, but he was in the habit of entering her home through an unlocked rear door. There were some text messages and a phone call between the two in the period leading up to the alleged offending.
It is not in dispute that on 15 January 2020 the applicant drove his black Nissan Navara vehicle to a location proximate to BS’s home around 6.45am in the morning and parked nearby. CCTV footage shows the applicant approaching the premises carrying a concealed item believed by police to be the crowbar. When he entered the property, it can be inferred that he had a crowbar with him. Once inside the house the applicant entered BS’s bedroom. BS and MM were asleep in bed. BS alleges in her police statement that she awoke to find the accused sitting on top of her squeezing his legs against hers so that she could not move, and that he was holding a crowbar and yelling ‘You’re meant to be with me, you’re meant to love me. Who is this? I thought you were with Mason. Who is this guy? Oh well, it doesn’t matter who he is, I’m going to kill him.’
It is then alleged that the applicant began to attack [MM] with the crowbar, striking him on the head and arms. BS tried to get between the applicant and [MM] to stop the assault but was grabbed by the throat and thrown aside. The applicant told BS he would stop assaulting [MM] if she went outside to talk to him. BS left the room with the applicant, and they went to the front porch area. CCTV captured the applicant pushing her against the front wall of the house before smashing the wall of the house with the crowbar near to BS’s head.
As a result of this episode [MM] received fractures to both check [sic] bones and to his left and right arm. He sustained substantial blood loss from lacerations to the head in the course of the incident. It was conceded on behalf of the applicant that the injuries inflicted were sufficient to meet the descriptor of ‘serious injury’ as defined in the Crimes Act 1958.[4]
[4]Re Application for Bail by Taylor Griffin [3]-[8].
A short time after the alleged offending, the applicant was arrested and gave a ‘no comment’ record of interview. The Melbourne Magistrates’ Court later issued a Family Violence Intervention Order (‘FVIO’) and a Personal Safety Intervention Order (‘PSIO’) protecting the complainants.
The applicant’s background
The applicant recently turned 27 years old. Following his schooling, he completed a carpentry apprenticeship and has maintained employment as a carpenter. Prior to his remand, he was residing with his parents at 4 Burniston Ave, Craigieburn.
The applicant started using methylamphetamine and GHB at the age of 18. After a period of abstinence commencing in 2018, he relapsed in mid-2019 in the context of his relationship with the complainant, BS. At the time of the alleged offending, he reports using methylamphetamine and GHB on a daily basis. In November 2019, he was assisted by his parents to obtain a mental health care plan and was scheduled to commence a drug rehabilitation program, which did not proceed due to his remand.
Criminal history and outstanding charges
The applicant has a limited criminal history comprising a single conviction for unlawful assault on 26 March 2020, and findings of guilt on 4 July 2019 for driving and property damage offences related to a road rage incident.
In addition to the charges for which he now seeks bail, he has two other outstanding matters for which he is charged on summons. The details of those allegations are addressed in the earlier bail decision and are not repeated here.[5] As a result of the alleged offending, the applicant was made subject to two FVIOs naming the applicant’s mother and sister as the affected family members and prohibiting family violence or attendance at the family home if affected by, or consuming, drugs or alcohol. Those orders expire on 19 December 2020.
[5]Re Application for Bail by Taylor Griffin [11]-[2], [15]-[7].
It is proposed, if granted bail, that the applicant reside at the family home. I am assured, and it doesn't appear to be in contention, that such a condition would not be a difficulty provided the applicant was not affected by drugs or alcohol.
As indicated above, the applicant is also subject to a final FVIO protecting BS and her two children and a PSIO protecting MM. Both orders were made on 4 May 2020 at the Melbourne Magistrates’ Court, contain full conditions and expire on 3 May 2025.
The applicable legislation
The Court must refuse bail in this matter unless satisfied by the applicant that a compelling reason exists that justifies the grant of bail. [6] The compelling reason test is enlivened because the applicant is accused of committing a number of Schedule 2 offences within the meaning of the Act.[7] The Schedule 2 offences include: an indictable offence that is alleged to have been committed by the applicant while on bail for another indictable offence, intentionally causing serious injury in circumstances of gross violence, intentionally causing serious injury, aggravated burglary, committing an indictable offence in the course of committing which the applicant is alleged to have used an offensive weapon and, finally, an offence against the Act.[8]
[6]Bail Act 4C(1A) and 4AA(2).
[7]Ibid ss 4AA(3)
[8]Bail Act sch 2, items 1(a), 4, 6, 22(b), 23 and 30.
In considering whether a compelling reason exists, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[9]
[9]Ibid s 4C(3).
As explained by Jane Dixon J in her earlier decision, in order to demonstrate a compelling reason justifying the grant of bail, a synthesis or balancing of all relevant matters, including those set out in s 3AAA of the Act, must compel the conclusion that the applicant’s detention is not justified.[10] To meet this threshold, an applicant is not required to show a reason which is irresistible or exceptional, rather, a ‘compelling reason is one which is forceful and therefore convincing – a reason which is “difficult to resist”’.[11]
[10]Rodgers v The Queen [2019] VSCA 214 [43] (citations omitted).
[11]Ibid.
As the applicant now raises the effect of the delay caused by the COVID-19 pandemic capable of demonstrating a compelling reason. It is well established that COVID-19 is a surrounding circumstance to be taken into account when determining an application for bail. In his decision of Re Diab [2020] VSC 196, Beach JA, sitting in the Trial Division, said the following in relation to the relevance of the COVID-19 pandemic concerning applications for bail:
1)Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
2)The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
3)The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
4)In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.[12]
[12]Re Diab [2020] VSC 196 [38].
While his Honour’s decision refers specifically to the threshold of exceptional circumstances, there can be no doubt it applies equally to applications for bail in the compelling reason category.
If the Court is satisfied as to the existence of a compelling reason, it must then apply the ‘unacceptable risk’ test.[13] That is, pursuant to ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if it is satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail:
(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.
[13]Bail Act s 4D(1)(b).
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ outlined 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.
Further, if the applicant in this matter is charged with family violence offences, s 5AAAA of the Act requires the Court to consider whether, if released on bail, there is a risk that the applicant would commit family violence offences and whether the risk could be mitigated by the imposition of a condition of bail or the making of an FVIO. As the stated, the applicant is already subject to three FIVO’s in relation to his mother, sister, BS and her two children.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[14]
[14]Bail Act s 1B(2).
The applicant’s contentions
In support of the application, the applicant continued to rely on the grounds set out in the affidavit prepared by his solicitor and which had been litigated on in the earlier application for bail.
In summary, he contends that his personal circumstances, limited criminal history, lack of proven history of non-compliance with bail, delay, family support, onerous conditions in the context of his first period of custody, willingness to address his drug addiction, and a surety in the amount of $10,000 combine to establish a compelling reason justifying the grant of bail. In this application, the surety has been increased, the offer of the surety has been increased to $50,000.
To those factors, counsel for the applicant now adds delay and the availability of a residential drug treatment program.
Delay
The first matter addressed by Mr Sala, who appeared on behalf of the applicant, was the delay. As I earlier stated, the essence of his submissions were that the landscape of Victoria and its courts has changed dramatically since May of this year, and the prospects of a delay are now, as he put it, extraordinary.
As the lockdown in response to COVID-19 has been reimposed, and with stricter conditions, there is little prospect of criminal trials in the County Court commencing before the early part of next year. The estimations — and, as Mr Hutton rightly pointed out, they are only estimations — are that it may very well be the latter part of 2022 or even the early part of 2023 before this matter got on for trial. On any view, that is a very substantial delay, and it is one which is quite a bit different from what was before J Dixon J. In May, there were talks, discussions, prospects of trials resuming in the second half of this year. That prospect has long evaporated.
Availability of residential rehabilitation
Counsel for the applicant also submitted that the applicant has now been assessed as suitable to enter the residential substance abuse treatment program at The Cottage in Shepparton. It had originally be put that the program would commence on 8 September 2020, but I have been assured by Aaron Gilhooley, General Manager of The Cottage, that the applicant can start the program immediately.
Reportedly the applicant was twice assessed as suitable for the residential treatment program: first, by Mr Gilhooley and, second, by Maria Hutchinson, an addiction counsellor employed by The Cottage. In a letter dated 14 July 2020, Ms Hutchinson expressed the opinion that the applicant meets criteria for Substance Abuse Disorder, in relation to his use of methylamphetamine and GHB. She notes that the applicant has made a prior attempts to address his substance abuse issues, but has not had the opportunity to attend residential rehabilitation before.
Mr Gilhooley gave evidence in the hearing of the application, on the applicant’s suitability for The Cottage and the programming available. In response to a question from me about the basis for his assessment, Mr Gilhooley made the point, which I took to be in summary, that the applicant has developed some significant insight into his drug use and its effects and has displayed a desire to deal with that issue.
On Mr Gilhooley’s evidence, as a resident of The Cottage, the applicant would be required to undergo weekly urine screening and would receive education and recovery support, as well as participating in external ‘12-step’ meetings. Although he acknowledged that The Cottage does not have the authority to prevent any of its clients from leaving, he stated that its employees will quickly report any breaches, including positive urine samples, to the informant.
The residential program at The Cottage is said to run for at least four months. The written materials state that it is a privately funded facility, for which residents are required for pay $5,500 for any court appearance and admission fees, which are partially refunded if bail is not granted. It was not confirmed whether he has paid the initial amount. Ongoing payments involve deductions from Centrelink payments at a rate of $250 per week.
Mr Sala submitted that, should the applicant be granted bail and complete the drug treatment program, it is proposed he will then reside with his parents in Craigieburn.
A number of documents were also been filed to demonstrate his motivation to rehabilitate, including records of his voluntary attendance at Alcoholics Anonymous and Narcotics Anonymous (‘AA and NA’) meetings while on remand, a letter from Peter Wroblewski, area co-ordinator for the AA and NA 12-step program, and a letter written by the applicant to this Court.
The respondent’s contentions
On behalf of the respondent, Mr Hutton opposes a grant of bail on the basis that a compelling reason has still not been established to justify a grant of bail. As I understand his position, if I were satisfied that a compelling reason had been established, it would be conceded that it would be open to the Court to find the applicant’s risk could be mitigated to an acceptable level by the imposition of conditions.
In the written material, the respondent submitted the matters raised by the applicant have previously been rejected by this Court as failing to demonstrate a compelling reason and that the new facts do not add materially to reach that threshold.
In response to the issue of delay, Mr Hutton made the submission that, although it is accepted that a delay of two years is significant, the weight of that delay must be balanced against the seriousness of the alleged offending and the strong prosecution case, which indicate the likely sentence to be imposed on him, if found guilty, would be significantly greater than any time he spent on remand.
The written materials further submitted that this Court has also found the applicant to be an unacceptable risk. Putting Mr Hutton’s concession regarding the risk to one side, there is some merit to the argument made that the applicant’s participation in The Cottage program is only for ‘at least’ four months, with the committal hearing listed in seven months, and any trial at an indeterminate time in the future. I will return to that topic.
Analysis
In my view, the submission made about the delay by Mr Sala are of significance. Any delay that approaches the vicinity of 30 months is a very substantial delay indeed. True it is that these matters are very serious and that, if the applicant is found guilty of these offences, the sentence is likely to be will be greater, and perhaps significantly greater, than the period of remand.
However, it is one thing to talk about 30 months as a statistic, it's another thing again for a person to endure that period of time as a remand prisoner with all the uncertainty and lack of privilege that goes with such circumstances. The courts have previously found that such a delay is of itself a compelling reason and, indeed, courts have found that substantial delay is of itself an exceptional circumstance where that is the test to be applied.
I accept that the circumstances of the delay now confronting the applicant and, indeed, so many other prisoners who are awaiting trial in the County Court, is substantially different from that which confronted Justice Dixon in May — which is in no way intended to be critical of the conclusion that her Honour reached.
As to the treatment program, Mr Gilhooley's evidence was not in contention. It is not suggested that there is anything other than an entirely ethical organisation run at The Cottage in Shepparton and that they provide a service that is obviously of value. It seems to me that, as her Honour said in her ruling, if a significant problem confronting the applicant is a 'long-entrenched addiction to methamphetamine’,[15] then it is in the community's interests that this condition be treated, even it be the case that he is ultimately returned to custody upon conviction for any of the matters with which he is charged.
[15]Re Application for Bail by Taylor Griffin [39].
Should the applicant be successful in completing the treatment offered by The Cottage, it will not only stand to his credit, but it will serve to benefit the community in the long-term in that he is unlikely to become involved in the type of offending connected to the spontaneous and aggressive conduct that so often arises from the consumption of drugs, particularly methylamphetamine.
I am therefore satisfied that, given the delay and the availability of residential treatment, the applicant has established a compelling reason why bail should be granted.
On the basis of Mr Hutton's very fair concession, and also on the basis of the orders that I propose to make and the way in which I propose to make them, I am likewise satisfied that the risk in releasing the applicant on bail can be ameliorated by the imposition of conditions.
I then propose that, at a date to be fixed near the completion of his residential treatment, the matter return to this Court, so that his performance during the program can be reviewed. It will also provide the opportunity for both parties to make submissions as to what will occur going forward.
Therefore, I would not propose to set out conditions that would apply upon his release from The Cottage at this stage. Rather I will adjourn the making of those orders until the matter can be reviewed.
Conclusion
I therefore propose that the applicant be admitted to bail on his own undertaking, with one surety in the amount of $50,000, and on the following special conditions:
1.The applicant is to be released into the custody of a staff member of The Cottage, 6-8 St Andrews Road, Shepparton, in the State of Victoria (‘The Cottage’);
2.The applicant is to reside at The Cottage until further order of the Court;
3.The applicant must not leave the premises of The Cottage except in the company of a staff member of The Cottage;
4.The applicant must comply with all lawful directions of the staff at The Cottage;
5.The informant, or his delegate, may attend at The Cottage from time to time to confirm the applicant’s presence at The Cottage;
6.The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant;
7.The applicant is not to leave the state of Victoria;
8.The applicant is not to attend at any points of international departure; and
9.The applicant is to appear at the Supreme Court of Victoria at 9:30 am on 23 November 2020.
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