Re Jeffkins
[2023] VSC 733
•8 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S SCR 2023 0290
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by ANDREW JEFFKINS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2023 |
DATE OF RULING: | 8 December 2023 |
CASE MAY BE CITED AS: | Re Jeffkins |
MEDIUM NEUTRAL CITATION: | [2023] VSC 733 |
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CRIMINAL LAW – Bail application – Applicant charged with reckless cause injury, assault and commit indictable offence while on bail – Alleged offending occurring while applicant on bail for indictable offence and while applicant subject to Community Correction Order in respect of indictable offence – Whether exceptional circumstances exist – Whether unacceptable risk – Substantial criminal history including previous breaches of bail – Applicant having significant mental health issues – Applicant subject to Inpatient Assessment Order made under Mental Health and Wellbeing Act 2022 – Bail granted subject to conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J. Swiney | Victorian Aboriginal Legal Service |
| For the Respondent | Mr P. Murphy | Victoria Police |
HIS HONOUR:
On 29 October 2023, the applicant was arrested and remanded in custody on one charge of recklessly causing injury, three charges of assault, and one charge of committing an indictable offence while on bail. On 9 November, his application for bail to the Neighbourhood Justice Centre was refused. A further application was refused on 23 November 2023, due to the lack of new facts and circumstances. The charges are currently listed for a sentence indication at the Neighbourhood Justice Centre on 19 December. The applicant now applies to this Court for bail.
The offences, with which the applicant has been charged, arose from an incident on 29 October 2023 involving Ms Sarah Belleli, with whom the applicant was then in a relationship.
At about 10:00 am on that date, the applicant and Ms Belleli were walking together to the supermarket in Fitzroy, when the applicant suddenly became quite paranoid after they met a man who Ms Belleli knows, and who lives in the same building. The applicant made a number of threats to Ms Belleli that he would assault the man. His mood escalated, and he then assaulted Ms Belleli. He slapped her across the face, pushed her to the ground, put his knees into her ribs, and started to stomp on her right hand side. The applicant then desisted from that behaviour, and walked away. Two persons who witnessed the incident assisted Ms Belleli, and accompanied her to the Victoria Police station. As a result of the incident, Ms Belleli sustained some bruising to her collarbone and shoulder area.
In her statement to police, Ms Belleli said that she wished to end her relationship with the applicant, and, for that purpose, she asked that an intervention order be put in place, to prevent him attending at her apartment. However, she stated that she did not want the applicant to be charged with criminal offences, because she was concerned that that might further escalate the difficulties in her relationship with the applicant, and he might assault her again.
Outstanding charges
At the time of his arrest on 29 October, the applicant was subject to a Community Correction Order that had been imposed by the Bail and Remand Division of the Melbourne Magistrates’ Court on 23 September 2023 for a period of 14 months. That order was made in respect of a number of charges, that included theft, assaulting an emergency worker on duty, wilfully damaging property, committing an indictable offence while on bail, and failing to answer bail.
In addition, on 27 October 2023, the applicant had been arrested, and granted bail, on charges of theft of a motor vehicle, theft from a shop, driving a motor vehicle while disqualified, and possession of a drug of dependence. Those charges have been listed for mention before the Melbourne Magistrates’ Court on 15 January next.
On, 29 October 2023, the applicant was also charged with the offence of, without reasonable excuse, failing to comply with the conditions of the Community Correction Order, in that he had failed to report to the specific Community Correction Centre within two days after the order came into force, and, further, that he had failed to be supervised, monitored and managed as directed to do so on 18 October 2023.
In addition, on 29 October, on the application of the informant, an interim family violence intervention order was issued, by the Melbourne Magistrates’ Bail and Remand Court. The order nominates Ms Belleli as the Protected Person.
Previous criminal history
The applicant is 29 years of age, having been born on 2 December 1994. He has a lengthy criminal history, that includes offences of dishonesty, intentionally damaging property, committing an indictable offence while on bail, unlawful assault, contravening a family violence intervention order, reckless conduct endangering serious injury, contravening a Community Correction Order, and a number of road traffic offences.
His history commenced with appearances before the Geelong Children’s Court in 2012. Since then, the applicant has been subject to a number of different sentencing dispositions, including being placed on a Community Correction Order in August 2020 on a number of charges, including assault, contravention of family violence intervention order, and driving offences. Most relevantly, on 17 November 2021, the applicant was before the Geelong Magistrates’ Court on a number of charges, including unlawful assault, contravening a family violence intervention order, intentionally damaging property, contravening a conduct condition of bail, reckless conduct endangering serious injury, theft and other offences of dishonesty, and a number of road traffic offences. He was sentenced to a total effective term of imprisonment of 12 months, with a non-parole period of eight months.
As I have noted, on 23 September 2023, the applicant was before the Bail and Remand Court on a number of charges that included theft, theft from shop, assaulting an emergency worker on duty, wilfully damaging property, driving a motor vehicle while disqualified, and a number of road traffic offences. He was convicted and placed on a Community Correction Order for 14 months. It was a condition of that order that he attend the Neighbourhood Justice Centre Community Correction Centre in Collingwood by 26 September 2023, that he perform 80 hours unpaid community work, and that he undergo treatment and rehabilitation, and a mental health assessment.
It is alleged that, in contravention of that order, the applicant failed to report within two days of the order to the Neighbourhood Justice Centre, and further, he failed to attend a supervision appointment as directed to do so by a letter dated 18 October 2023. A report of the Community Correction Services Officer notes that the applicant had made no attempt to contact the Service since the imposition of the Community Correction Order, so that the Service had not been able to implement case management interventions to address his offending behaviours. It was therefore recommended that the order be cancelled, and that the applicant be re-sentenced.
Applicant’s personal circumstances
The applicant was born in Sunshine in December 1994. He spent his childhood and early adult years in Geelong. He was raised in the home of his mother and his stepfather, his biological father not having played a role in his childhood. The applicant is the eldest of four children of his parents. He is an Aboriginal person, with connections to the Ngiyampaa people in Central New South Wales, through his maternal grandmother, Denise Jeffkins, who lives in Corio, and with whom he has a close relationship.
After the applicant left school, he commenced an apprenticeship as a carpenter. He also worked as a DJ and a delivery driver, but, for some time, he has been unemployed. In April 2023, he moved to Melbourne, having secured a Department of Families and Housing accommodation in Fitzroy.
The applicant has a longstanding history of mental health issues, which have been exacerbated by his use of methamphetamine, which commenced when he was approximately 17 years of age. Initially, it would seem that the applicant resorted to using that substance as a form of self-medication, and his consumption of it had increased to three to four times each week at the time of the offending, with which this case is concerned.
The applicant’s first contact with the public mental health system occurred in 2001, when he was seven years of age. In the following three years, he had involvement with the Geelong Children and Adolescent Mental Health Service. He was diagnosed to have a Conduct Disorder, and it would appear that he was also diagnosed with Attention Deficit Hyperactivity Disorder, in respect of which he was prescribed medication.
The applicant experienced his first psychotic episode in 2016. During the next four years, he received treatment from Jigsaw, which is the public youth mental health service of Geelong. His primary diagnosis was that of Schizoaffective Disorder, but an alternative diagnoses were also made of Drug-Induced Psychosis and Acute and Transient Psychotic Disorder. Between 2016 and 2020, the applicant was admitted, on five separate occasions, to Geelong Hospital. Each of those admissions, except for the first one, were involuntary. The applicant also spent periods of time on Community Treatment Orders. During that time, he was treated with different combinations of antidepressant and antipsychotic medication. The applicant reported that he had suffered adverse experiences with side-effects and excessive sedation, resulting from his use of that medication.
Since 2020, the applicant has had intermittent contact with a private psychiatrist in Geelong, Dr Jed O’Brien. He was prescribed an antipsychotic medication, Amisulpride, and the antidepressant medication, Fluoxetine. However, his compliance with medication had been inconsistent, and he regularly resorted to the use of methamphetamine.
In May 2023, the applicant presented to the Royal Melbourne Hospital Emergency Department, expressing paranoid concerns that people had been breaking into his flat and pricking him with needles and cutting his hair. He was subsequently referred to the St Vincent’s Hospital CAT team for community treatment, but he did not respond to telephone messages that he received from that team.
On 4 September 2023, the applicant was transported to the St Vincent’s Hospital Emergency Department by Victoria Police, after a neighbour observed him smashing the window of his 15th floor flat. On examination, he was observed to be irritable and agitated, with grandiose delusions. He was assessed psychiatrically and was discharged home.
Eighteen days later, on 22 September, the applicant was again referred to the St Vincent’s Hospital Mental Health Service by the Department of Families and Housing, in the context of concerns about his escalating problematic behaviour during the preceding three weeks in the premises in which he was then residing.
Finally, on 6 October 2023, he presented to the Alfred Hospital Emergency Department, again manifesting unusual behaviours.
Since the applicant was remanded in custody on 29 October, he has apparently been compliant with a regime of Olanzapine (an antipsychotic medication) and Fluoxetine that have been prescribed for him by Forensicare staff who have attended upon him..
Bail provisions
Section 4AA(2)(c)(i) of the Bail Act 1977 provides that the exceptional circumstances test applies where an applicant is accused of a Schedule 2 offence, if that offence is alleged to have been committed while the applicant was on bail for any Schedule 1 or Schedule 2 offence. Section 4AA(2) (c)(iv) provides that the exceptional circumstances test also applies where an applicant is charged with a Schedule 2 offence, if that offence is alleged to have been committed during the period of a Community Correction Order for a Schedule 1 or Schedule 2 offence.
The offences, with which the applicant was charged on 29 October 2023, include an offence that falls within clause 1(a) of Schedule 2, namely, an indictable offence (recklessly causing injury) alleged to have been committed by the applicant while on bail for another indictable offence (theft). The charges also include an offence that comes within clause 1(d) of Schedule 2, namely, an indictable offence (recklessly causing injury) alleged to have been committed during the period of a Community Correction Order, that had been made in respect of another indictable offence (theft) that itself had been committed while the applicant was on bail for another indictable offence. Accordingly, pursuant to s 4A of the Act, the applicant bears the burden of establishing the existence of exceptional circumstances that would justify the grant of bail.
Section 4D and s 4E provide that, if the Court is satisfied of the existence of such exceptional circumstances, the prosecutor bears the burden of establishing the existence of an unacceptable risk, as defined in s 4E(1)(a) of the Act.
Section 4A(3) of the Act provides that, in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. Section 3AAA specifies the surrounding circumstances, which must be taken into account. They include (inter alia): the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant’s criminal history; the extent to which the applicant has complied with the conditions of an earlier grant of bail; whether, at the time of the alleged offending, the applicant was on bail for another offence, or the subject of a Community Correction Order; the applicant’s personal circumstances, associations, home environment and background; any special vulnerability of the applicant, including being an Aboriginal person, or having a mental illness; the availability of treatment or bail support services; the length of time the applicant is likely to spend in custody if bail was refused; and the likely sentence to be imposed on the applicant, should he be found guilty of the offence with which he is charged.
Section 5AAAA(2) provides that, where an applicant has been charged with a family violence offence, the court must consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence, and whether that risk could be mitigated by the imposition of an appropriate condition of bail, or the making of a family violence intervention order.
As I have noted, the applicant is of Aboriginal heritage. Section 3A of the Act provides that, in making a determination in relation to an Aboriginal person, the court must take into account any issues, that arise due to the applicant’s Aboriginality, including the person’s cultural background, and any other relevant cultural issue or obligation.
The meaning of the phrase ‘exceptional circumstances’ has been considered in a number of previous decisions of this Court. In substance, in order to satisfy that requirement, the applicant is required to demonstrate the existence of circumstances, which are such as to take the case out of the ordinary. In other words, the circumstances must be exceptional to the ordinary circumstances, which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of factors, which, individually, might not, of themselves, be sufficient to be considered exceptional.[1]
[1]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18] (Tinney J); Re Pope [2022] VSC 735, [6] (Priest JA); Re Pham [2023] VSC 585, [22]–[23] (Tinney J).
One particular factor, that is ordinarily considered to be important in determining whether exceptional circumstances have been established, is the presence or absence of the factors, which might indicate whether the applicant is an unacceptable risk in any of the aspects specified in s 4A(1) of the Act.[2]
[2]Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
The applicant’s materials and evidence in support of application
The application for bail focused on considerations relating to the applicant’s longstanding mental health issues. For that purpose, the applicant relied on a report that was prepared by Ms Sara Cantwell, a St Vincent’s Mental Health clinician attached to the Neighbourhood Justice Centre, and Mr Mathew Cocomazzo, an Alcohol and Other Drug Clinician, of the Neighbourhood Justice Centre.
Ms Cantwell assessed the applicant on 16 November 2023 and Mr Cocomazzo assessed the applicant on 14 November and 21 November 2023. In their initial report, they noted that the applicant has a complicated psychiatric history, with dual diagnoses of Attention Deficient Hyperactivity Disorder and Schizoaffective Disorder. Recently, methylamphetamine use has played a central role in triggering, prolonging and exacerbating his episodes of psychoses. At the time of assessment, the applicant’s mental state was then stable. Ms Cantwell and Mr Cocomazzo concluded that the applicant would appear to fulfil the criteria for DSM-V diagnosis of moderate methylamphetamine (ice) use disorder.
In a subsequent report, dated 22 November 2023, Ms Cantwell noted that the applicant had been currently receiving treatment from Forensicare at Ravenhall Correctional Centre. According to Forensicare, his mental state had deteriorated over the last few days, so that he then met the threshold for invoking the Mental Health and Wellbeing Act 2022.
Ms Cantwell proposed that, if the applicant were released from custody, he would be transported to Geelong Hospital Emergency Department pursuant to an Inpatient Assessment Order made under the Act. It was anticipated the applicant would be reviewed by a consultant psychiatrist at the hospital, in order to determine whether he requires involuntary inpatient treatment.
Ms Cantwell noted that, upon such an assessment, and depending on the decision made by the psychiatrist, the applicant’s condition could be addressed in one of the following five ways:
(1)the applicant could be admitted to the Geelong Hospital Mental Health Unit as a voluntary inpatient, on a Temporary Treatment Order;
(2)the applicant could be discharged from the Emergency Department for treatment and management by Barwon Mental Health as a voluntary outpatient;
(3)the applicant could be discharged from the Emergency Department, with recommendations for him to seek treatment from the private sector, or from his general practitioner;
(4)the applicant could be discharged from the Emergency Department for treatment and management by Barwon Mental Health as an involuntary outpatient, pursuant to a Community Treatment Order;
(5)the applicant could be admitted to Geelong Hospital Mental Health Unit as a voluntary inpatient.
Ms Cantwell expressed the view that, in her experience, the fourth and fifth such scenarios are highly uncommon for people who exit prison on an Inpatient Assessment Order.
Ms Cantwell gave evidence on the application. She said that when she assessed the applicant on 16 November 2023, he appeared to be substantially recovered from his recent bout of mental ill-health, although he was still a little bit vague in affect. Ms Cantwell said that if the applicant were released on bail, her role would be confined to ensuring that the applicant had appropriate mental health services available to him. Mr Cocomazzo would be responsible for organising referrals, on behalf of the applicant, to local substance abuse treatment facilities.
In cross-examination, Ms Cantwell accepted that there is some inconsistency between Mr Cocomazzo’s assessment of the applicant on 21 November 2023, and the report that she received from Forensicare on the following day, that the applicant’s mental state had in fact deteriorated in the last few days. Ms Cantwell explained that the applicant was being treated at Ravenhall prison by Forensicare on a weekly basis. She accepted that, if the applicant were released on bail, she would be relatively limited in her capacity to supervise the applicant, because he would then be living in Corio.
The applicant’s mother, Ms Melanie Govan, also gave evidence at the hearing of the application. She said that if the applicant were released on bail, he would reside with his maternal grandmother, Ms Denise Jeffkins, in Corio. Ms Govan said that the applicant has a good relationship with his grandmother, and that he has previously lived with her on a number of occasions. Ms Govan herself lives about fifteen minutes from Ms Jeffkins, and she has had regular contact with her.
Ms Govan explained that both Ms Jeffkins and herself are well familiar with the applicant’s mental health problems, and they are readily able to detect when he becomes unwell. Ms Govan acknowledged that the applicant’s problems are exacerbated by his use of methamphetamine. She is readily able to detect when he is affected by that substance. She said that in the past she has, on a number of occasions, contacted the police in order to convey the applicant to hospital for psychiatric treatment. Ms Govan explained that, previously, there has been difficulty obtaining appropriate treatment for the applicant’s psychosis, and also for his drug addiction, while he has been on bail.
Ms Govan said that she has spoken to the applicant on a number of occasions while he has been in custody, and that his condition has quite clearly improved, particularly because, during that period, he has not had access to methamphetamine. In respect of the applicant’s Aboriginality, Ms Govan stated that her mother’s father was a member of the Stolen Generation. She, herself, had only learnt about her Indigenous heritage in recent times. The applicant has had contact with the Wathaurong Cooperative in Geelong and has, in the past, received some support from it.
In cross-examination, Ms Govan confirmed that, since the applicant has been in custody, his mental health appears to have progressively improved. Ms Govan also confirmed that the applicant has regularly used methamphetamine over the last decade. On a number of occasions, he has attempted to overcome the addiction, but he has not been successful at doing so. In 2020, the applicant attended Habitat Therapeutics for inpatient treatment for a period of three months. After he left that institution, he managed to abstain from the use of methamphetamine for about four months, but he then relapsed. In the following year, he again attended Habitat, but he only stayed there as an inpatient for one week, because he was then experiencing psychosis. Ms Govan confirmed that the applicant’s condition had improved in the last two weeks, which she substantially attributed to his inability to access methamphetamine.
Finally, Ms Traysy Kay, the Director of Koori Policy and Planning in the Dhumba Murmuk Djerring Unit, Court Services Victoria, gave evidence concerning the ability of the applicant to access appropriate cultural assistance, if he were released on bail. In particular, Barwon Health has an Aboriginal Liaison Health Officer, and also a Koori Mental Health Officer, who would be able to assist the applicant at the time at which he would be admitted to that hospital. Each of them would be able to assist the applicant to establish relevant connections with cultural organisations in respect of matters such as family violence, and other social issues.
On 6 December 2023, Dr Edinah Samhembere examined the applicant at Ravenhall. Dr Samhembere certified that she was satisfied that all the compulsory assessment criteria in s 142 of the Mental Health and Wellbeing Act 2022 apply to the applicant. She based her opinion on the fact that the applicant has been diagnosed to have Schizoaffective Disorders, and mental behavioural disorders due to his use of multiplepsychoactive substances. Dr Samhembere noted that the applicant appeared guarded in his mental state, requiring medication optimisation and longitudinal monitoring of his mental state. She concluded that an assessment cannot occur in the community, and accordingly she made an Inpatient Assessment Order in respect of the applicant.
The respondent’s materials
In response to the application, the respondent has provided some relevant background materials and information relating to the offences with which the applicant has been charged, and to his previous offending.
The materials include a witness statement of Mr Ryan Everett, who observed the incident on 29 October, and who subsequently assisted to escort Ms Belleli to the Fitzroy Police Station. In his statement, Mr Everett stated that his attention was drawn to the incident when he heard the loud voices of both the applicant and Ms Belleli. From the tone of those voices, he could tell that something serious was occurring. Accordingly, he went out to his balcony and observed the applicant on top of Ms Belleli, pinning her to the ground, and swinging his arms at her, as if he was punching at her.
In respect of s 5AAAA of the Act, the respondent notes that, since March 2017, Victoria Police have received some eleven family violence reports, relating to the applicant, as the respondent. Seven of those reports were made by the applicant’s mother, one by an ex-partner, one by his grandmother, and the remaining two reports were made by male relatives of the applicant. Each of the reports described incidents in which the applicant had become abusive and physically aggressive, it would appear, without there being any apparent instigating cause for his conduct.
Submissions
In support of the application, it was submitted, on behalf of the applicant, that the offending could be considered to be at the lower end of the scale of gravity, particularly in view of the deterioration of the applicant’s mental health at the time. It was submitted that the applicant’s mental health issues must be taken into account in assessing the probable sentence, which might be imposed on the applicant, in accordance with the principles, stated by the Court of Appeal in The Queen v Verdins.[3] Counsel further noted that, although the applicant was subject to a Community Correction Order at the time of the offending, nevertheless, the author of the report concluded that it was apparent that, at the time, the applicant might have been experiencing significant mental health issues, which might have affected his capacity to comply with the conditions of that order.
[3](2007) 16 VR 269 , 276 [32] (Verdins).
Counsel submitted that there are a combination of factors which, collectively, constitute the requisite exceptional circumstances justifying the grant of bail in this case. In particular, counsel relied on the following factors: the fact that the applicant is an Indigenous man with serious mental health issues; the applicant would have available hospital referral and treatment if he were released on bail; the applicant has family support and stable accommodation; and the applicant has specialised mental health, and drug and alcohol support services available to him, through the Neighbourhood Justice Centre.
Counsel further submitted that, if the applicant were released on bail, there would not be an unacceptable risk that he would endanger the safety of Ms Belleli, or any other person, commit any further offence, or breach the terms of his bail. In support of that proposition, counsel noted that, if the applicant were released on bail, he would have available family support and stable accommodation. He would also have the support from the Neighbourhood Justice Centre, consisting of specialised support in mental health through Ms Cantwell, and alcohol and drug services through Mr Cocomazzo. Counsel contended that I should accept that the Geelong Hospital would only release the applicant to community care once the applicant’s condition has stabilised and he has become compliant with treatment.
Counsel acknowledged that the applicant’s history has included offending while he has been subject to a Community Correction Order, or while he has been on bail. However, counsel submitted that the position would now be different, because, if the applicant were granted bail, he would immediately be transferred to Barwon Health for assessment and treatment.
In response, it was submitted on behalf of the respondent that the applicant has failed to establish the existence of exceptional circumstances that would justify the grant of bail. It was further submitted that, if the Court is satisfied that exceptional circumstances do exist, there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice, and fail to surrender into custody in accordance with the conditions of the bail.
In respect of the circumstances, specified in s 3AAA of the Act, counsel for the respondent submitted that the family violence-related offending, alleged against the applicant, cannot be characterised as being at the lower end of the scale, and that it was aggravated by the commission by the applicant of that offending while he was subject to a Community Correction Order, and while he was on bail for other indictable offences. Counsel further submitted that the prosecution case, against the applicant, is strong, although it was conceded that, in relation to charge 1 (recklessly causing injury), there is a triable issue in respect of whether Ms Belleli did sustain an injury for the purposes of that charge.
Further, counsel for the respondent noted that the applicant has an extensive criminal history, and that he has previously been sentenced to imprisonment on three occasions for family violence-related offending. In addition, the applicant’s criminal history includes the commission of indictable offences while he was on bail on eleven separate occasions, and failing to answer bail on three separate occasions. In addition, he has a history of breaching good behaviour bonds and Community Correction Orders imposed on him. Counsel noted, in that respect, that the applicant was subject to a Community Correction Order at the time of the offending, and that he was also on bail.
In addition, counsel for the respondent noted that the applicant’s address in Fitzroy is in close proximity to Ms Belleli’s home address, so that if he were bailed to that address, there would be an unacceptable risk that he would re-offend.
Counsel accepted that the applicant does suffer special vulnerabilities, constituted by his mental health issues, but it submitted that those vulnerabilities elevate the risk that he would re-offend against the victim, if he were released on bail. The respondent additionally noted that Ms Belleli remains in fear of the applicant. Further, it was submitted that, if bail were refused, it is improbable that the applicant would spend more time in custody than any sentence he may receive, taking into account the circumstances of the offending, and the applicant’s previous criminal history.
Finally, counsel accepted that if the applicant were to become an inpatient at the Geelong Hospital, any risk would likely be ameliorated to an acceptable level. However, it was submitted, it is uncertain whether the applicant would be accepted as an inpatient. If the applicant were released into the community, the bail supports available to the applicant, through the Neighbourhood Justice Centre, would not be sufficient to ameliorate the risk that the applicant would re-offend, endanger the safety of the complainant, and answer his bail.
Analysis and conclusions
The questions, whether the applicant has demonstrated the existence of the requisite exceptional circumstances, and, if so, whether the respondent has established a material unacceptable risk if the applicant were released on bail, are separate questions, but, as I shall discuss, central to each of them is the consideration of the proposal that, if the applicant were released on bail, he would attend Barwon Health in accordance with the Inpatient Assessment Order dated 6 December.
It is clear that the applicant has had longstanding mental health issues, which, by a period of some years, predated his abuse of illicit substances. However, it is also clear that his mental health issues have been significantly exacerbated by his resort to drugs, and, in particular, methamphetamine. The applicant’s mother, Ms Govan, who was an impressive witness, described how the applicant regularly resorted to the use of that substance. She also confirmed that, when he did so, his mental state would significantly deteriorate. As a consequence, on a number of occasions, Ms Govan has felt the necessity to contact the police, in order to ensure that the applicant was conveyed, and admitted, to hospital as an involuntary patient.
Ms Govan also confirmed that the applicant has significantly benefited from a period of enforced abstention from using methamphetamine while he has been held on remand in Ravenhall Prison. Further, during that time, and, indeed, previously, the applicant has expressed some insight into the deleterious effect that his abuse of that substance has had on his health and lifestyle. In addition, it is noteworthy that, on previous occasions, the applicant has made genuine endeavours to address his addiction to methamphetamine, in particular, by being admitted twice to the Habitat Therapeutic Institution. On those occasions, the applicant has experienced a degree of success in abstaining from his resort to the substance, however, he has not been able to resist the temptation to subsequently resume his abuse of it. Thus, it is apparent that the steps, taken by the applicant in the past, while having some positive effect, have not been sufficient.
In her evidence, Ms Cantwell confirmed that the treatment, that has so far been afforded to the applicant by Forensicare while he has been in Ravenhall, has assisted his mental health condition. Ms Cantwell’s observations in that regard are consistent with the evidence given by Ms Govan that, in the past, the applicant has been able to have periods of emotional and psychological stability, particularly when he has been able to remain free from the abuse of illicit substances. It is quite apparent that the applicant has a real need to undertake an expert assessment of his condition, and to have access to a treatment facility, which will be best suited to address that condition.
The considerations that I have just discussed are relevant to a number of issues, which are of importance in determining the two questions, namely, as to whether the applicant has established the requisite exceptional circumstances and, if so, whether the respondent has demonstrated the existence of an unacceptable risk.
The applicant’s psychological condition, and his abuse of illicit substances, no doubt are relevant to his involvement in the incident, which has given rise to the charges in respect of which he now seeks bail. In respect of those charges, it is common ground that the prosecution might have some difficulty in establishing, beyond reasonable doubt, that Ms Belleli did suffer an injury. In those circumstances, it is probable that, if the matter proceeded by way of a contested hearing, the applicant might be acquitted of the first charge (recklessly causing injury), but convicted on the alternative charges of unlawful assault, and committing an indictable offence while on bail. I also accept the submission, made on behalf of the applicant, that, in those circumstances, it is at least conceivable that the evidence relating to his mental health state might operate in mitigation of sentence by reason of the application of the principles identified by the Court of Appeal in Verdins.
It is in that context that it is necessary to address the two questions, to which I have referred.
The first issue is whether the applicant has established the existence of the requisite exceptional circumstances justifying his release on bail. As I have noted, on that issue, counsel for the applicant relied on a combination of circumstances, including: the applicant’s serious mental health issues; his referral to hospital; the support available from the Neighbourhood Justice Centre; the family support and stable accommodation available to the applicant; and that the applicant is of Aboriginal heritage.
Each of those matters are relevant, both individually and in combination. It should be noted that the applicant has always had family support, particularly from his mother and maternal grandmother, and stable accommodation. If he were granted bail, he would reside in Corio, which would, itself, limit, but not negate, the capacity of Ms Cantwell and Mr Cocomazzo, of the Neighbourhood Justice Centre, to provide important specialised support to him.
The circumstance that the applicant is of Aboriginal heritage is a relevant matter, particularly taking into account that it would appear that, in relatively recent times, he has taken the opportunity to attempt to avail himself of support and assistance from the Wathaurong Aboriginal Cooperative. In HA (a pseudonym) v The Queen,[4] the Court noted that s 3AAA(1)(h) of the Bail Act is a recognition of the requirement that courts have a duty, in cases such as this, to be conscious of the need to avoid compounding the disturbingly high incarceration rates of our Aboriginal people, unless there is good cause to do so.[5]
[4][2021] VSCA 64.
[5]Ibid [59].
While the matters, to which I have referred, are of some weight, nevertheless, without more, I would have reservations in characterising the combined effect of them as being exceptional. However, I do consider that those factors, when taken in combination with the Inpatient Assessment Order, made by Dr Samhembere on 6 December, are, together, exceptional.
Dr Samhembere based her opinion on the following findings:
[The applicant] is a 28 year old male diagnosed of schizoaffective disorders, mental and behavioural disorders due to multiple drug use of psychoactive substances. [The applicant] appears guarded in mental health state requiring medication optimisation and longitudinal monitoring of mental state given the risks when unwell.
Section 149 of the Act provides that the medical health practitioner who made the order, or a registered medical practitioner, must arrange for the applicant to be transported to the responsible designated mental health service (Barwon Health) as soon as practicable after the Inpatient Assessment Order was made. As a consequence, if the applicant were released on bail, Dr Samhembere, or another medical practitioner at Ravenhall, must, as a matter of law, arrange for the applicant to be transported to Barwon Health as soon as practicable. The basis upon which the order was made, and the automatic effect of the order, are particularly relevant in determining whether there are exceptional circumstances. Those considerations do, in my view, in the context of the other factors to which I have referred, combine to render the circumstances of the applicant to be exceptional, thus justifying his release on bail.
The next question is whether, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of any person, commit an offence while on bail, or interfere with a witness. It was not suggested that, if the applicant was released on bail, there would be an unacceptable risk of him failing to surrender into custody.
In view of the applicant’s past history, and the circumstances in which he allegedly committed the offences in respect of which he is now seeking bail, it must be accepted that, if he were released on bail, there would be a material risk in each of those three respects. As I have discussed, the applicant has a longstanding history of previous offending. On a number of occasions, the offending was committed in respect of close members of his family, and, in particular, his mother. Significantly, the applicant does have a history of offending while released on bail, and while subject to a Community Correction Order. In the present case, the offences, which the applicant is alleged to have committed, occurred only two days after he had been released on bail, and some 36 days after the Community Correction Order had been imposed on him.
In considering those circumstances, it is necessary to keep in mind that it would appear that in none of the past offending, committed by the applicant, has he caused significant or serious injury to any other person. Ms Govan, who gave evidence, has stated that most of the reported incidents, that have involved herself, were confined to verbal, rather than physical, abuse. In the present offending, Ms Belleli suffered little, if any, injury. Ms Govan gave evidence that Ms Belleli contacted her shortly after the incident, and expressed sympathy for the plight of the applicant.
Those considerations do, of themselves, reduce, but not eliminate, the extent to which the applicant, if released, would constitute an unacceptable risk in the respects that I have discussed. However, again, a key consideration, in this respect, is the effect of the Inpatient Assessment Order, made by Dr Samhembere on 6 December, which I have discussed.
It would, of course, be preferable if there were an assurance that, when the applicant is conveyed to Barwon Health, he would become subject to an Inpatient Temporary Treatment Order, pursuant to s 181(1)(d) of the Act. However, the making of such an order must depend on the assessment, made by an appropriate medical practitioner, when the applicant is transported to Barwon Health. Notwithstanding that consideration, it is a matter of some significance that, if the applicant were granted bail, he would be immediately transported to Barwon Health, which would then assume responsibility for his assessment, treatment and monitoring. That consideration gains added weight from the fact that the applicant has now been in custody for some five weeks, during which time he has received beneficial psychiatric treatment by Forensicare, and during which time he has not had access to, or been able to use, methamphetamine or any other illicit substance.
Taking those considerations into account, while I accept that there is some risk that, if the applicant were released on bail, he might re-offend, endanger the safety of another, or commit an offence while on bail, nevertheless, I am not persuaded that that risk is, in the circumstances, unacceptable.
Accordingly, and after giving this matter anxious consideration, I propose to grant the applicant bail, on conditions which would include the following:
(1)Upon the applicant’s release on bail, he is to be immediately transported to and attend at Barwon Health Psychiatric Unit for assessment and treatment;
(2)The applicant comply with all directions given to him by Barwon Health Psychiatric Unit;
(3)The applicant comply with any directions given to him by Ms Sara Cantwell and/or Mr Mathew Cocomazzo of the Neighbourhood Justice Centre;
(4)The applicant reside with and at the home of Ms Denise Jeffkins at [address to be provided], Corio;
(5)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(6)The applicant comply with the Family Violence Intervention Order No. P12280831 dated 29 October 2023 in which the protected person is Sarah Belleli;
(7)The applicant not contact, directly or indirectly, any witness for the prosecution, except the Informant;
(8)The applicant is to appear at the Neighbourhood Justice Centre at 9:30 am on 19 December 2023, and thereafter as directed by that court.
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