Re Hughes
[2019] VSC 750
•13 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0231
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| - and - | |
| IN THE MATTER of an Application for Bail by BRETT HUGHES | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2019 |
DATE OF JUDGMENT: | 13 November 2019 |
CASE MAY BE CITED AS: | Re Hughes |
MEDIUM NEUTRAL CITATION: | [2019] VSC 750 |
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CRIMINAL LAW — Bail — Charges of assault and threatening to assault — Complainant was treating psychiatrist — Community correction order in force at time of alleged offending — Applicant subject to Inpatient Treatment Order at time of alleged offending — Compelling reason established — Vulnerable applicant — Whether unacceptable risk — Relevant criminal history — Bail refused — Rogers v The Queen [2019] VSCA 214 applied — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA(3), 4C, 4D and 4E — Sentencing Act 1991 (Vic) s 10AA — Mental Health Act 2014 (Vic) ss 52(1) and 55.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Healey | Victoria Legal Aid |
| For the Respondent | Mr M Aitkin | Victoria Police |
DRAFT
HIS HONOUR:
This is an application for bail by Brett Hughes (the ‘applicant’). He was arrested and remanded in custody on 21 October 2019 in relation to two charges of making threats to kill, two charges of threatening to assault an emergency worker, two charges of assaulting an emergency worker, and two charges of unlawful assault. The charges arise from events alleged to have occurred on 2 and 8 August 2019 while the applicant was an involuntary patient of the Upton House mental health inpatient service at Box Hill Hospital (‘Upton House’).
Mr Aitken, who appears on behalf of the respondent, has informed the Court that the charges in relation to emergency workers will be withdrawn on the basis that, at the time of these events, the complainant was not acting in her capacity as an emergency worker.[1]
[1]Sentencing Act 1991 (Vic) s 10AA.
At the time of the alleged offending, the applicant was subject to two community correction orders (‘CCO’), both imposed on 5 November 2018 in the Ringwood Magistrates’ Court for a term of 12 months each. The first CCO was imposed following a conviction for contravention of a CCO imposed on 31 May 2017 for charges of assaulting a police officer, driving whilst disqualified (two counts), intentionally damaging property and assaulting an emergency worker on duty. The second CCO was imposed following convictions for unlawful assault, assaulting an emergency worker on duty and unlicensed driving.
As the applicant is charged with a number of indictable offences alleged to have been committed whilst subject to a CCO for other indictable offences, it is common ground between the parties that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[2]
[2]See Bail Act 1977 (Vic) ss 4AA(3), 4C(1A) and sched 2, item 1(d) (‘Bail Act’)
Procedural history
The applicant has been in custody since 21 October 2019, having been arrested upon discharge from Upton House. He was refused bail in the Melbourne Magistrates’ Court the following day on the basis that he had failed to demonstrate a compelling reason and, further, that he was an unacceptable risk of committing an offence while on bail and endangering the safety or welfare of any person.
By application filed 30 October 2019, the applicant seeks a grant of bail in this Court.
The matter is next listed for further mention on 12 March 2020 in the Ringwood Magistrates’ Court.
In addition to the matters for which the applicant seeks bail, he is also charged on summons in respect of two outstanding matters. The first matter involves one charge of unlawful assault alleged to have been committed on 15 June 2019. The second matter involves two charges of contravening a CCO. These charges were laid subsequent to the alleged offending on 2 and 8 August 2019. As such, the applicant was not on bail or subject to any summons at the time of the alleged offending.
The alleged offending
By way of background, the applicant has a diagnosis of schizoaffective illness with bipolar-type episodes. At the relevant time, he was subject to an Inpatient Treatment Order and receiving compulsory treatment at Upton House, having been admitted on 1 July 2019. [3] Dr Rebecca Fraser (‘the complainant’) was the applicant’s treating psychiatrist at Upton House.
[3]See Mental Health Act 2014 (Vic) ss 52(1)(a) and 55 (‘Mental Health Act’).
It is the prosecution case that the applicant was abusive and threatening towards the complainant during his time at Upton House, believing that she was to blame for his being made an involuntary patient.
The prosecution alleges that, on the morning of 2 August 2019, the complainant and two other doctors, Dr Kevin Kaye and Dr Elena Cocalas, attended the applicant’s room at Upton House to conduct a psychiatric review and discuss a plan to commence him on new medication. While there, the applicant is alleged to have become abusive towards the complainant, standing over her and stating, ‘I’m going to kill you, you fucking cunt’. The applicant is alleged to have then walked towards Dr Kaye and punched the wall within inches of his head, before proceeding to the common area of the ward. Staff initiated a ‘Code Black’ response, requesting police attendance due to safety concerns.
On 8 August 2019, police again responded to a ‘Code Black’ at Upton House. On that occasion, the applicant is alleged to have become combative towards police, and was thereafter forcibly restrained and taken to a seclusion room. Once inside the seclusion room, the applicant yelled threats directed at the complainant, specifically, ‘I’m going to fucking kill you, Rebecca, you fucking cunt. You will pay for this’.
The applicant is alleged to have made a number of other comments during his time at Upton House that caused the complainant to fear for her life. In particular, during a conversation with a nurse, Rose Nguyen, he is alleged to have stated, ‘You know who I don’t like? Rebecca. She is the reason why I am here. I have researched how to hire a hitman and it would only cost $16,000. I’d have a few grand spare’. While speaking with another nurse at Upton House, Debbie Graham, it is alleged the applicant stated that, once discharged from the hospital, he would seek revenge against the complainant by tracking and killing her.
The applicant is also alleged to have told Upton House staff on several occasions that he had weapons at his home, including a crossbow and hunting knives, and that he had links to outlaw motorcycle gangs that would allow him to have the complainant killed following his release. The prosecution alleges that these comments have caused the complainant to believe that the applicant is capable of carrying out the threats made against her.
On 13 September 2019, a search warrant was executed at the applicant’s home, which located a number of weapons, including a compound bow, 17 arrows, three hunting knives, a Swiss army knife, two small hatchets, one large axe, one large machete and a baseball bat wrapped in wire.
On 21 October 2019, the day of his discharge and arrest, the applicant was made subject to a Community Treatment Order (‘CTO’)[4]. Dr Jose Segal, the Clinical Director of Eastern Health’s Adult Community Mental Health Program and his treating psychiatrist, has been the holder of that order.
[4]Pursuant to Mental Health Act ss 52(1)(b) and 55.
Police conducted a record of interview with the applicant and he made no comment, but when asked if he wanted to make any further comment in relation to the matter, he stated that he was regretful for the things he had said to the complainant.
The applicant
The applicant is 35 years old and is diagnosed with schizoaffective illness and bipolar-type episodes. As noted above, between 1 July and 21 October 2019, he was receiving compulsory inpatient treatment at Upton House for an episode of psychosis and is now subject to a CTO.
Prior to his admission to Upton House, the applicant resided in government housing in Ashwood. His mother had been his main support in the community until her death in 2016. The applicant receives some family support from his mother’s ex-partner, Paul Whelan. Mr Whelan is supportive of the applicant’s CTO.
The applicant has an extensive criminal history. That history commenced in 2003 and continues with some regularity up to the present. It records approximately 15 court appearances with a significant number of convictions that include offences of dishonesty, damaging property, unlawful assault, intentionally causing injury, assaulting police and assaulting an emergency worker on duty. He also has a history of disobeying court orders by contravening CCOs (in 2015, 2017 and 2018), failing to comply with an undertaking (in 2004) and committing an indictable offence while on bail (in 2018).
In my view, that prior criminal history is significant when assessing the issue of the acceptability of the risk posed by the applicant if he were released on bail.
The application legislation
Section 4 of the Bail Act 1977 (Vic) (the ‘Act’) provides that the applicant is entitled to bail unless the Act requires the Court to refuse bail.
Section 4AA of the Act sets out the circumstances in which a ‘2-step test’ applies to the consideration of whether to grant bail. Section 4AA(3) dictates that the ‘show compelling reason test’ applies to the decision whether to grant bail to a person accused of a Schedule 2 offence.
As previously stated, the applicant is charged with a Schedule 2 offence, being an indictable offence that is alleged to have been committed by the applicant while subject to a CCO made in respect of another indictable offence.[5] As such, pursuant to s 4C(1A) of the Act, the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The burden of satisfying the Court that a compelling reason exists rests with the applicant.[6]
[5]Bail Act sched 2, item 1(d).
[6]Bail Act s 4C(2).
The meaning of the phrase ‘compelling reason’ is now well settled and was recently considered by the Court of Appeal in Rodgers v The Queen.[7] Drawing on a number of decisions previously delivered by this Court, Beach, Kaye and Ashley JJA summarised the principles to be applied when considering the compelling reason test as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[8]
[7][2019] VSCA 214.
[8]Ibid [43] (citations omitted).
In considering whether a compelling reason exists, the Court must also to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[9]
[9]Bail Act s s 4C(3).
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, the Court must apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act. In accordance with ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if the prosecutor satisfies the Court that that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety and 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.
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 contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Act, the Court is required by s 1B to take into account the following ‘guiding principles’:
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
The submissions of the applicant
On behalf of the applicant, Ms Healey submitted that a number of factors exist that demonstrate that a compelling reason has been established.
It is first submitted that the applicant is a vulnerable person in custody due to his diagnosis of schizoaffective illness. Dr Segal gave evidence at the hearing of this application about his diagnosis and treatment. Following treatment at Upton House, Dr Segal advised the Court that the applicant experienced a significant improvement in his mental health, which has now stabilised through the use of medication, including an intramuscular antipsychotic injection administered fortnightly, and mood stabilisers taken twice daily. On this present regime, he no longer displays any form of behavioural disturbance to suggest the ongoing presence of mental illness or behaviour to indicate that he is a risk to himself or others. This stabilisation enabled the Mental Health Tribunal to determine on 21 October 2019 that an inpatient treatment order was no longer required.
Dr Segal indicated that the applicant’s mental health needs would be best served through the provision of continued treatment in accordance with his CTO. He offered the opinion that, although his mental illness is now in the early stages of remission, there is a ‘significant risk of deterioration of his mental health should he remain in custody’. As I followed his evidence, that risk concerned the potential emergence of post-psychosis depression, which would include suicidal ideation and potentially suicidal behaviour. In response to questioning from me, he did not indicate any reason why the applicant could not receive treatment for any post-psychosis depression episodes that arose whilst in custody.
The second factor relied on by the applicant is that, while the nature of the alleged offending is serious, it must be viewed in the context of his experiencing an episode of psychosis and severe symptoms associated with his mental illness. The applicant submits that there have been no further incidents since Dr Segal commenced treating him on 16 September 2019.
The applicant also briefly submitted that a defence of mental impairment may be open to him given that he was receiving inpatient treatment for a serious psychiatric disorder at the time of the alleged offending.
Further to that, the applicant contends that delay will inevitably result in the course of obtaining appropriate psychiatric assessments and reports for the purposes of determining whether the defence of mental impairment is available to him. It was submitted that the applicant may be remanded in custody for several months if bail is refused.
Ms Healey also referred to the fact that the matter is next listed for further mention on 12 March 2020. The applicant submits that it is a delay of some consequence and that the time spent on remand has the potential to exceed any sentence that may be imposed.
It was next submitted on the applicant’s behalf that treatment is available in accordance with the compulsory CTO made by the Mental Health Tribunal on 21 October 2019. That order lasts for 52 weeks and requires the applicant to comply with all directions of his treating professionals, including:
(a) daily phone contact and weekly in-person assessments with members of the Mobile Support Team at the Koonung Community Mental Health Clinic;
(b) appointments with Dr Segal;
(c) regular reviews with a private therapist and general practitioner;
(d) daily collection of oral medication from the applicant’s local pharmacy; and
(e) fortnightly depot injections.
It is further submitted that, should the applicant fail to comply with his CTO, he may be detained in a mental health facility for involuntary treatment under the Mental Health Act.
Reliance is also placed on the fact that the applicant has stable long-term accommodation available at 3/65 Power Avenue, Ashwood. He would be residing there on his own.
The applicant concedes that his criminal history includes convictions for assault and contravention of CCOs. He submits that he has complied with previous grants of bail, with the exception of one instance in which he was convicted of committing an indictable offence whilst on bail in August 2018.
Turning to the issue of unacceptable risk, Ms Healey, on behalf of the applicant, proposed conditions that this Court could impose that would reduce any risk to an acceptable level, including a condition that he not approach or contact the complainant or any other witnesses for the prosecution, except for the informant.
It was also submitted that, as the alleged offending occurred in the context of a deterioration in his mental health, ongoing treatment is relevant to minimising any risk. The outstanding CTO, as outlined in Dr Segal’s evidence, would ensure he would receive that treatment. In a letter dated 21 October 2019 originally addressed to the Magistrates’ Court at Ringwood, Dr Segal set out the planned community care if the applicant was released on bail in relation to these matters. The plan was as follows:
· Follow-up with the Eastern Health Mobile Support Team by daily phone contact and weekly face-to-face assessments;
· An appointment to see Dr Segal on Friday, 25 October 2019;
· Medical review by the applicant’s general practitioner;
· Psychological counselling with the applicant’s private therapist, Ms Ebony Collins;
· Daily pick up of oral medication from the applicant’s local pharmacy;
· Ongoing use of a CTO at the discretion of the Mental Health Tribunal;
· Liaison with the applicant’s family and his friend, Mr Whelan;
· Ongoing liaison with other stakeholders as and when required, including Victorian Fixated Threat Assessment Centre and Mental Health Forensic Assertive Community Treatment; and
· Liaison with the community corrections worker.
The submissions of the respondent
Mr Aitken, on behalf of the respondent, has conceded that it is open to the Court to find that the applicant has demonstrated a compelling reason to justify the grant of bail. That compelling reason is primarily the applicants' special vulnerability on account of his mental health conditions.
However, the respondent opposed the grant of bail on the grounds that there remains an unacceptable risk should the applicant be released on bail.
The respondent contends that the applicant poses an unacceptable risk to the safety of others, particularly the complainant, noting that he has expressed an intention to harm her on multiple occasions. It was submitted, on behalf of the respondent, that the applicant knows the location of the complainant’s workplace — although it is noted that she no longer works at that location — and that he has previously had access to dangerous weapons, as evidenced by the search warrant executed on 13 September 2019.
The respondent provided statements from the complainant and other prosecution witnesses about their views on the applicant’s potential grant of bail. The complainant is fearful of the applicant being released.
Mr Aitken, on behalf of the respondent, further submitted that the applicant has an extensive criminal history, which includes a number of violent offences. He also pointed to the information on the Law Enforcement Assistance Program (‘LEAP’) database, which reveals that the applicant has come to the attention of police persistently since 2003. Those events having included mental disorder transfer events, family violence incidents, reports to police that the applicant was missing, ‘Field Contact Reports’ referring to views the applicant has expressed as well as a propensity to abuse drugs and alcohol, and various other matters. The respondent submits that the LEAP reports should be taken together with his criminal history to demonstrate the risk he poses to himself and others.
It needs to be understood that these matters have not been proved and are not part of any evidence which establishes them to be so. The respondent, however, says that the matters are credible and, to a degree, they can be taken into account. Ms Healey’s accepts that the LEAP reports are admissible for the purposes of this application; however, she takes issue with the weight they should be afforded.
In addition, the respondent noted that the applicant is the subject of a referral to the Fixated Threat Assessment Centre made on 22 October 2018 in relation to his previously expressed anti-Islamic attitudes and intentions to engage in violence towards non-Caucasian individuals. It is submitted that the applicant is a risk to members of the public who are not of Caucasian appearance.
The respondent further submitted that at a meeting at the Koonung Community Mental Health Clinic attended by police on 16 September 2019, views were expressed about the consequences of the applicant being released on bail.
The respondent contended that the applicant is an unacceptable risk of committing further offences if granted bail by reference to the applicant’s history of offending whilst on bail and contravening CCOs, and noted that he is again charged with two counts of contravening a CCO.
In the respondent’s submission, there is a risk of interfering with witnesses, particularly the complainant, and obstructing justice on the basis of the alleged threats made to the complainant; though that needs to be seen in the present context of the applicant being unaware of her current whereabouts.
The respondent also submitted that, if released on bail with a condition that the applicant comply with the requirements of his CTO, it would be difficult to monitor the applicant’s adherence to his medication regime, particularly in circumstances where he has on two previous occasions made threats to kill the complainant while discussing his medication intake and reviewing his treatment order.
The respondent submitted that, if released on bail, the applicant’s mental state could deteriorate significantly, assuming a non-compliance with medication and the use of illicit drugs. Dr Segal, in his evidence, frankly acknowledged that there would be a significant period of time during which the applicant would be unsupervised even whilst subject to the CTO. The respondent points to the fact that at least in custody strict adherence to medication could be supervised.
Analysis
As the respondent has effectively conceded that there is a compelling reason that justifies the grant of bail in relation to the applicant’s mental health and, given the detailed evidence I have received from Dr Segal, I am satisfied that that is so. The only issue that remains is whether the potential risk the applicant poses if released on bail can be reduced to a level so that it is no longer unacceptable.
It is put through the evidence of Dr Segal that since receiving treatment at Upton House, his mental health has stabilised such that he no longer poses a risk to himself or others. Further, in the letter to the Ringwood Magistrates’ Court, Dr Segal pressed that the applicant’s mental health needs would be best served through treatment in the community under the terms of his existing CTO.
I make the observation though that his continuing stability depends very heavily on the applicant’s compliance both in relation to the taking of medication and the avoidance of illicit drugs. I am concerned that during any period in which he is living alone and unsupervised that there may be a relapse into that behaviour. Dr Segal gave evidence that, should the applicant use intravenous amphetamines, his relapse would be immediate.
Whilst the issue was raised about the adequacy of the treatment that may be provided to the applicant if he remained in custody, it appears he could be treated both with the antipsychotic medication that he requires and, in the vent of a post-psychotic depressive condition, antidepressant medication.
Given the circumstances as I have outlined them and consideration of the surrounding circumstances, coupled with the applicant’s significant history of non-compliance with court orders and his criminal history, in my view the risk of releasing him on bail is unacceptable, notwithstanding the submission in relation to the proposed conditions.
Conclusion
In my view, compelling circumstances have been established. However, regrettably, the risk associated with releasing him on bail remains unacceptable.
In all those circumstances, the application for bail is refused.
I do not discount the concerns of Dr Segal in relation to the applicant’s history of serious depression as well as the need to maintain his present regime to preserve his current mental state. I strongly recommend that he be closely monitored and supervised in relation to the administration of that medication.
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