Re Harris

Case •

[2024] VSC 226

•

9 May 2024
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0086

IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an Application for bail by Sean HARRIS

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JUDGE:

Beale J

WHERE HELD:

Melbourne

DATE OF HEARING:

3 May 2024

DATE OF JUDGMENT:

9 May 2024

CASE MAY BE CITED AS:

Re Harris

MEDIUM NEUTRAL CITATION:

[2024] VSC 226

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CRIMINAL LAW — Bail — Threat to kill – Summary assaults and resisting police — Domestic violence — Where, as conceded by the respondent, the applicant demonstrated compelling reasons justifying a grant of bail — Where the  respondent failed to demonstrate that applicant an unacceptable risk to endanger welfare of others — Bail granted on strict conditions for the applicant to reside at a residential treatment facility — Bail Act 1977 (Vic) ss 3AAA, 4AA(3), 4C, 4D, 4E, Item 7 of Schedule 2.

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APPEARANCES:

 Counsel Solicitors
For the Applicant Mr Robert Richter KC with
Ms Carly Marcs 		Tom Isaacs – Anthony Isaac’s Criminal Lawyers
For the Respondent Mr Alex Austin

HIS HONOUR:

BACKGROUND

  1. On Friday 3 May 2024, I heard a bail application by Sean Harris who has been in custody since 31 March 2024. I reserved my decision until today.

  1. Mr Harris is charged with 9 offences, all allegedly committed on 31 March 2024.  There are charges of assaulting members of his family, resisting and assaulting the police who attended his home and took him to Monash Hospital, making a threat to a hospital nurse to return home and kill his family, and assaulting a hospital security guard.

  1. In summary, the police allege that Mr Harris and his wife Marion were arguing in their bedroom.  One of their children went to their bedroom and allegedly witnessed Mr Harris strangling his wife and throw her against a wall (Charges 1 & 2).[1]  The children contacted their paternal grandfather, Ian Harris OAM, who attended the family home.  Mr Harris has allegedly thrown a lit candle at his father and pinned him to the ground (Charge 3). Marion Harris went to the kitchen and, in self-defence, armed herself with a knife, which she was observed holding by police when they attended in response to a 000 call from the children. Mr Harris resisted police when they tried to arrest him, and punched two police officers (Charges 4–7).[2]  Police took Mr Harris to Monash Hospital because Mr Harris’ father told police that he saw Mr Harris swallow a large number of pills and Mr Harris lost consciousness for a time at the house.  At the hospital, when a mental health clinician told Mr Harris he was not allowed to go home, Mr Harris allegedly said “I am. I’m going to kill them all”(Charge 9).[3] Mr Harris then punched a security guard several times in the head before being subdued (Charge 8).[4]

    [1]Charge 1 – assault Marion Harris (common law); Charge 2 – assault Marion Harris, a female (Summary Offences Act1966 (Vic) s 23).

    [2]Charge 4 – resist First Constable MacCurtain, an emergency worker on duty (Summary Offences Act1966 (Vic) s 51(2)); Charge 5 – resist First Constable Webster, an emergency worker on duty (Summary Offences Act 1966 (Vic) s 51(2)); Charge 6 – assault First Constable MacCurtain, an emergency worker on duty (Summary Offences Act1966 (Vic) s 51(2)); Charge 7 – assault First Constable Bennett, an emergency worker on duty (Summary Offences Act1966 (Vic) s 51(2)).

    [3]Charge 9 – threat to Teresa Davis to kill Marion Harris, Eligh Harris, Asher Harris and Ava Harris.

    [4]Charge 8 – assault Gaurev Jethi (Summary Offences Act1966 (Vic) s 23).

  1. On 9 April 2024, Interim Intervention Orders were made against Mr Harris by the Moorabbin Magistrates’ Court.  The protected persons are his wife and children and his father.

  1. Mr Harris, who is aged 43 (DOB: 5.9.1980) and has no prior convictions, wishes to be bailed to the Hader Clinic in Geelong where he can receive intensive psychological, psychiatric and therapeutic treatment as an inpatient.  His wife and father support this proposal, as does Mr Harris’ psychiatrist, Dr Michael Batt, who has been working with Mr Harris since mid-2023.

  1. Because of the threat to kill charge, which in the circumstances is an alleged family violence offence, Mr Harris must show compelling reasons which justify a grant of bail.[5]

    [5]See Bail Act 1977 (Vic) ss 4AA, 4c, sch 2, item 7.

  1. If compelling reasons are shown, bail must be granted, unless the respondent shows Mr Harris to be an unacceptable risk.[6]  The respondent contends that Mr Harris is an unacceptable risk to endanger the welfare of members of his family.

    [6]See Bail Act 1977 (Vic) ss 4D, 4E.

EVIDENCE

  1. I turn now to the evidence adduced at the bail hearing.

  1. The applicant filed and served two affidavits in support of his application for bail.  Those affidavits included two letters from Dr Batt and material from the Hader Clinic, a 28-bed licensed psychiatric facility in Geelong.  The applicant also called the general manager of the Hader Clinic, Mr Elliot McLaren, to give evidence.

  1. Dr Batt, who has been treating Mr Harris since mid-2023, indicated that he reviewed the Monash Hospital’s file about Mr Harris and had had a number of counselling sessions with Mr Harris whilst Mr Harris has been in custody. He noted that Mr Harris, who has never been incarcerated before, has found custody difficult.

  1. In Dr Batt’s letter dated 9 April 2024, he referred to Mr Harris as having an “undifferentiated cluster B personality disorder and ADHD”.  Consistent with what Mr Harris’s father had told police, Dr Batt indicated that it was his understanding that, on 31 March 2024, Mr Harris had taken an overdose of prescribed benzodiazepines and had “developed a rapid onset benzodiazepine toxidrome … which can … produce paradoxical reaction of excitation and increased activity rather than the more sedation [sic] and reduced activity expected in typical benzodiazepine intoxication.  It seems that during his period of intoxication Sean became unusually aggressive and assaultive”.[7] 

    [7]I note that Mr Harris’s alleged strangulation of his wife seems to have preceded the overdose of benzodiazepines.

  1. Dr Batt recommended Mr Harris’ placement at the Hader Clinic and opined that “in the absence of any similar toxidrome, I estimate the risk of Sean acting violently towards his family or otherwise breaching the conditions of his bail would be very low”.

  1. Mr McLaren testified that there would be a bed available for Mr Harris at the Hader Clinic from 8 May 2024. Mr Harris has been assessed as suitable for their 90-day program.  At the Clinic, Mr Harris’ misuse of prescribed and illicit substances would be addressed, as well as issues around anger management and family violence.  Mr Harris would have twice weekly individual sessions with the Clinic’s psychologist and twice weekly group sessions with that psychologist.  Once a fortnight, Mr Harris would meet with the Clinic’s psychiatrist. There would also be therapeutic sessions led by the Clinic’s “recovery coaches,” that is, trained individuals who have overcome their own substance problems. The Clinic is manned 24 hours a day and has extensive CCTV surveillance. There are frequent room checks of an evening when the residents are meant to be sleeping.  Mr McLaren undertook to notify the Informant if Mr Harris were to breach any of his bail conditions. If the Informant was unavailable, he undertook to notify Geelong Police Station. 

  1. As well as relying on two affidavits, the respondent called the Informant, Constable Webster, and a child protection practitioner, Ms Jennifer Walters, to give evidence.

  1. Constable Webster acknowledges that Mr Harris’s wife and father supported Mr Harris being bailed to the Hader Clinic.  He also indicated that Mr Harris’ wife and father have not made statements to police regarding the alleged offences against them and do not support the criminal prosecution.  Constable Webster said he had concerns about Mr Harris harming his family if released on bail. 

  1. Ms Jennifer Walters provided a report in which she said Mr Harris had come to the attention of protective services in 2016 and 2022 for alleged family violence incidents.  Neither had resulted in court proceedings, although in 2022 there was a recommendation that the parents seek support from mental health professionals.  She also noted there had been five alleged incidents of family violence by Mr Harris reported to police between 2015 and 2024, including the present matter.

  1. Ms Walters interviewed Mr Harris on 2 May 2024, during which he told her that he had overdosed on prescribed diazepam on 31 March 2024 and could not recall the details of the incident.  Ms Walters conducted a Maram[8] Risk Assessment.  She stated:

The current MARAM risk rating is that Ms Harris and the children are at “serious” risk of being exposed to and experiencing emotional, verbal, and physical family violence perpetrated by Mr Harris. There are several serious family violence risk factors present that indicate an increased risk of Ms Harris and the children being killed or almost killed. These risk factors include Mr Harris having current and historic suicide attempts with medications, Mr Harris historically misusing illicit substances (methylamphetamines and cocaine), Ms Harris being seriously physically harmed during the incident and having her breathing restricted by Mr Harris, Mr Harris making threats to kill the mother and children and then threatening to commit suicide, and Mr Harris being currently unemployed. Child Protection have also assessed that the significant escalation in violence is a serious risk factor as the violence has increased in severity by escalating from verbal violence to significant physical violence and threats to kill.

[8]MARAM stands for Multi-Agency Risk Assessment and Management.

  1. Ms Walters highlighted her concern that there seemed to have been a deterioration in Mr Harris’ mental state and an escalation of violence notwithstanding him receiving regular treatment from Dr Batt. 

SUBMISSIONS

  1. In summary, the applicant relied on a combination of circumstances as establishing compelling reasons justifying a grant of bail and as making any risk associated with a granting of bail an acceptable risk.  These circumstances included the following:

(a)   The availability of residential treatment at the Hader Clinic, which placement is supported by Mr Harris’ wife, father and psychiatrist;

(b)  The undertaking of the general manager of the Hader Clinic to promptly notify police if Mr Harris breaches his bail conditions;

(c)   The location of the Hader Clinic, some 100 kilometres from the family home;

(d)  The fact that Mr Harris has no prior criminal history;

(e)   The risk that if refused bail Mr Harris may spend longer on remand than any sentence of imprisonment that may be imposed on him if convicted of all or some of the charges;

(f)    The possibility that even if convicted of all the offences, Mr Harris may receive a non-custodial sentence such as a community corrections order;

(g)  The likely deleterious effects of imprisonment upon Mr Harris which, if prolonged, may exacerbate the risk of family violence upon his eventual and inevitable release from custody;

(h)  The fact that there are intervention orders in place for the benefit of Marion Harris and the children and Mr Harris’ father;

(i)     The deterrent value of the time that Mr Harris has spent remanded in custody.

  1. The respondent conceded that Mr Harris has discharged the burden of demonstrating compelling reasons justifying a grant of bail because of the following combination of factors:  no prior criminal history, first time in custody, the availability of residential treatment at the Hader Clinic and the risk that, if Mr Harris’ bail application is rejected, he may spend longer on remand than any sentence of imprisonment that is imposed upon conviction.  I note too that the respondent acknowledged that, given Mr Harris has no prior criminal history, a community corrections order could be open to a sentencer if Mr Harris is convicted.

  1. The respondent submitted, however, that bail should be refused because Mr Harris is an unacceptable risk of endangering the welfare of others, namely his family.  The respondent relied heavily on Ms Walters’ MARAM risk assessment of Mr Harris.  He also highlighted the sustained nature of Mr Harris’s violent and threatening behaviour on 31 March 2024 and his alleged threat to the hospital nurse to kill his own family.  Whilst the respondent conceded that the applicant may have been affected by a drug overdose at the time of some of the alleged offending, the respondent submitted that he tried to strangle his wife prior to the overdose witnessed by the applicant’s father.  The respondent also referred to a pending assault charge against Mr Harris in relation to an altercation he had with another man in a car park in February 2024.  I note that I viewed the CCTV footage of that altercation where Mr Harris put the other man in a headlock.

ANALYSIS

  1. Turning then to my analysis, it seems to me that the respondent appropriately and fairly conceded that Mr Harris had discharged his burden of showing compelling reasons justifying a grant of bail, essentially for the reasons identified by the respondent.  In particular, the availability of residential treatment at the Hader Clinic — the success of which is in the interests of Mr Harris’ family and the community as much as it is in Mr Harris’ interest — and the significant risk of Mr Harris spending more time on remand than any sentence of imprisonment that might be imposed upon conviction amount to compelling reasons.

  1. As for the issue of risk, Ms Walters’ MARAM Risk Assessment is a significant consideration, but she has only had one session with Mr Harris whereas the psychiatrist, Dr Batt, has been working with Mr Harris since mid-2023.  In my view, Dr Batt is better placed, both by his qualifications and his long experience of Mr Harris, to assess the risk that Mr Harris poses to his family if released on bail.  Dr Batt’s recommendation that Mr Harris undergo residential treatment at the Hader Clinic has much to commend it. The respondent did not argue that Dr Batt’s opinion was misconceived or failed to take into account relevant information. I note that Dr Batt’s opinion was formed after reviewing the Monash Hospital file.

  1. As regards Mr Harris’s sustained violent behaviour on the afternoon and evening of 31 March 2024, it is clear that much of that violent behaviour occurred after he had taken an overdose of tablets.  I accept Mr Harris’ father’s affidavit that he witnessed his son take the overdose and, although the mental health nurse, to whom Mr Harris is alleged to have uttered the threat to kill his family, opined in her statement to police that Mr Harris did not seem to be affected by benzodiazepines at the time of the threat, nor when he assaulted the hospital security guard shortly thereafter, Dr Batt’s opinion that Mr Harris was likely to have been so affected strikes me as credible in all the circumstances.

  1. It is not proposed that I release Mr Harris into the community without intensive support and supervision. What is proposed is that he go to the Hader Clinic for a period of three months where, according to the general manager of the clinic, Mr McLaren, there will be intensive psychological, psychiatric and therapeutic support for Mr Harris, as well as intensive supervision.

  1. Mr McLaren undertook to notify police if Mr Harris is not compliant with the program run by the Hader Clinic. Mr Harris is a former constable of police and, based on his former occupation and the evidence he gave before me, I think he is someone who would honour his undertaking without hesitation. There is extensive CCTV surveillance of the patients at the clinic, which is staffed 24 hours a day, and I am confident that if Mr Harris left the clinic without authorisation police would be informed promptly.  Also, the fact that the clinic is about 100 kilometres from where the Harris family lives is an additional protective factor.

  1. If Mr Harris is bailed to the clinic, I expect he will be highly motivated to successfully complete the program.  Having just spent over a month in custody, an experience that, according to Dr Batt, has been difficult for him, he will not want to run the risk of being considered non-compliant with the program, which could see his bail revoked.  I also expect he will be highly motivated to make the most of his time at the Hader Clinic so that he can assuage the concerns of his family and, as a 43-year-old man with no criminal history, get his life back on track. No doubt his legal team will also impress on him that if he does well at the clinic it will have a significant bearing on the outcome of his criminal proceedings, even if he is found guilty of some or all of the charged offences.

  1. I am mindful of the enormous and legitimate public alarm about domestic violence.  Nonetheless, each bail application has to be assessed on its own merits applying the tests prescribed by the Bail Act 1977. I am not persuaded by the respondent that bailing Mr Harris to the Hader Clinic in Geelong constitutes an unacceptable risk.

  1. Accordingly, I will grant bail to Mr Harris on the following conditions:

(a)   The Applicant is to be released on bail on 8 May 2024 and is to appear at the Moorabbin Magistrates’ Court on 21 May 2024 at 10am and not leave the Court on that date without the permission of the Court; 

(b)  When released from custody on 8 May 2024, the Applicant is to be accompanied by a member of staff of the Hader Clinic from prison to the Hader Clinic at 6 Townsend Road, St Albans Park;

(c)   The Applicant is to reside at the Hader Clinic and is not to change his address without leave of the Magistrates’ Court of Victoria; 

(d)  The Applicant is to comply with all lawful directions of staff of the Hader Clinic and participate in the treatment and programs recommended by the Hader Clinic;

(e)   The Applicant is not to leave the Hader Clinic unless in the company of a staff member of the Hader Clinic or its nominee;

(f)    Unless absent with the permission of the Hader Clinic, the Applicant is to present himself at the front door of the Hader Clinic upon request by any member of Victoria Police;

(g)  The Applicant is to comply with the terms of any current Interim or Final Intervention Order where the protected person is Marion Harris, Eligh Harris, Ava Harris, Asher Harris or Ian Harris; and

(h)  The Applicant is not to leave the State of Victoria.


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