Re JP

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0252

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by JP

---

JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2024
DATE OF RULING:	8 November 2024
CASE MAY BE CITED AS:	Re JP
MEDIUM NEUTRAL CITATION:	[2024] VSC 691

---

CRIMINAL LAW – Bail – Allegations of family violence – Persistent contravention of family violence intervention order – Alleged threats to kill – Alleged strangulation – Schedule 2 offences alleged to have been committed while on bail for other Schedule 2 offences – Requirement to show exceptional circumstances – Strength of prosecution case – Availability of psychological treatment – Availability of stable accommodation – Availability of secure employment – Availability of bail guarantee – Whether time spent on remand likely to exceed any term of imprisonment – Exceptional circumstances not established – Unacceptable risk would have been established – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA, 5AAA.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	H Rattray	Melasecca Zayler
For the respondent	A Singh (solicitor)	Victoria Police

HIS HONOUR:

A. Introduction

On 29 October 2024, a notice of intention to make an application for bail was filed on behalf of JP.[1]
[1]A pseudonym has been used to ensure compliance with s 166 of the Family Violence Protection Act 2008 (Vic).
On 30 August 2024, JP was arrested, charged and remanded in custody in respect of a number of offences allegedly perpetrated against his former partner. These include charges of stalking, threats to kill and a number of breaches of a family violence intervention order. JP has been on remand since the date of his arrest, having been refused bail in the Magistrates’ Court of Victoria on 31 August 2024.
At the time of his arrest, JP was on bail in relation to other alleged offending of a similar nature.
In early September 2024, JP made a further application for bail in the Magistrates’ Court. That application was refused on the basis that JP was unable to demonstrate the existence of exceptional circumstances to justify the grant of bail.
The matter is listed for contest mention in the Magistrates’ Court on 26 November 2024.
In this court, JP relied upon, among other things, the existence of triable issues, the availability of psychological counselling services, stable accommodation, secure employment, and the offer of a $100,000 bail guarantee from his mother to establish the existence of exceptional circumstances. The application was opposed by the prosecution on the basis that exceptional circumstances had not been established, and in any event, JP would present an unacceptable risk of endangering the safety or welfare of any other person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody, if he were to be released on bail.
For the reasons to follow, the application for bail is refused.

B. Background

B.1 Alleged offending

The following account is based on the prosecution case and only comprises allegations at this stage.

B.1.1 Charges dated 30 August 2024

The 29 charges against JP dated 30 August 2024 are as follows:
(1)One charge of persistent contravention of a family violence safety notice or family violence intervention order, contrary to section 125A(1) of the Family Violence Protection Act 2008 (Vic) (“Charge 1”).
(2)One charge of stalking, contrary to section 21A of the Crimes Act1958 (Vic) (“Charge 2”).
(3)One charge of use of a carriage service to menace, harass or cause offence, contrary to section 474.17(1) of the schedule to the Criminal Code Act 1995 (Cth) (“Charge 3”).
(4)Twenty one charges of contravening a family violence intervention order, contrary to section 123(2) of the Family Violence Protection Act (“Charges 4 to 20, 24 to 26 and 29”).
(5)One charge of threatening to inflict serious injury, contrary to section 21 of the Crimes Act (“Charge 21”).
(6)Two charges of making a threat to kill, contrary to section 20 of the Crimes Act (“Charges 22 and 27”).
(7)Two charges of contravening a family violence intervention order intending to cause harm or fear for safety, contrary to section 123A(2) of the Family Violence Protection Act (“Charges 23 and 28”).
JP and his former partner were in a relationship from 2016 until 2020. Following their separation, the pair engaged in what has been described as an “on again, off again” relationship between 2021 and April 2024. They have 3 young children together.
In late May 2024, following a complaint made by JP’s former partner to police,[2] an interim family violence intervention order was made in which JP was listed as the respondent and his former partner and 3 children were listed as protected persons.
[2]See pars 27-28 below.
On 8 July 2024, JP was served with a final family violence intervention order made on 20 June 2024.[3] The conditions of the order included, amongst others, that JP was permitted to negotiate child custody arrangements by letter, email or text message, but was otherwise prohibited from contacting his former partner. As his 3 children were listed as protected persons pursuant to the terms of the order, the Department of Families, Fairness and Housing (“the Department”) required JP’s contact with his children to be fully supervised at all times, and assessed JP’s mother as suitable for providing the required supervision.[4]
[3]The order was due to expire on 11 October 2024.
[4]In addition, by a letter dated 3 July 2024, it was stated that the Department had an “expectation” that JP and his former partner use the “my family wizard” application to communicate any changes to their child custody arrangements, and that all communications between JP and his former partner were to be made using that application. As neither party was able to indicate whether this expectation imposed any obligations upon JP, it has not been taken into account as a relevant matter on this application.
It is alleged that between 29 July 2024 and 27 August 2024, in contravention of the final family violence intervention order made on 20 June 2024, JP called his former partner’s mobile telephone 98 times:
(1)On 29 July 2024, twice (Charges 1, 2, 3 and 4).
(2)On 4 August 2024, 11 times (Charges 1, 2, 3 and 5).
(3)On 5 August 2024, 4 times (Charges 1, 2, 3 and 6).
(4)On 6 August 2024, 6 times, with 2 of those calls made using the “FaceTime” application (Charges 1, 2, 3 and 7).
(5)On 8 August 2024, once (Charges 1, 2, 3 and 8).
(6)On 11 August 2024, twice (Charges 1, 2, 3, and 9).
(7)On 13 August 2024, 11 times (Charges 1, 2, 3 and 10).
(8)On 14 August 2024, 10 times (Charges 1, 2, 3 and 11).
(9)On 15 August 2024, twice (Charges 1, 2, 3, and 12).
(10)On 19 August 2024, twice (Charges 1, 2, 3 and 13).
(11)On 20 August 2024, 6 times, with 2 of those calls made using the “FaceTime” application (Charges 1, 2, 3 and 14).
(12)On 21 August 2024, 4 times (Charges 1, 2, 3 and 15).
(13)On 22 August 2024, 3 times (Charges 1, 2, 3 and 16).
(14)On 23 August 2024, 9 times (Charges 1, 2, 3 and 17).
(15)On 25 August 2024, 5 times (Charges 1, 2, 3 and 18).
(16)On 26 August 2024, 3 times (Charges 1, 2, 3 and 19).
(17)On 27 August 2024, 17 times (Charges 1, 2, 3 and 20).
On 26 August 2024, JP and his former partner’s 3 children were in his custody. It is alleged that he called his former partner and stated that he wanted to meet up to talk to her about their relationship and that until she agreed to meet with him, he would not return their children to her. At approximately 9.30am, JP met his former partner in the carpark of a fast food restaurant in the south-eastern suburbs of Melbourne. It is alleged that JP wanted to take possession of his former partner’s Toyota Land Cruiser and allegedly stated “I will put a gun to your head and make you sign transfer papers for the Land Cruiser” (Charges 21, 23 and 24). JP also allegedly threatened to kill his former partner’s boyfriend (Charges 22, 23 and 24).
The following day, JP’s former partner made notes on her mobile telephone of the alleged incident. The results of preliminary enquiries made by police of JP’s telephone service provider suggest that at the time of the alleged incident, JP’s mobile telephone was in the vicinity of the fast food restaurant.
On 29 August 2024, JP’s former partner reported the incidents the subject of Charges 1 to 23 to police and provided a digitally recorded evidence-in-chief statement. She left the police station between approximately 11.00am and 11.30am.
At approximately 11.46am, JP allegedly sent his former partner 4 text messages. One of the text messages allegedly stated “what a horrible mother keep (sic) her kids away from their dad” (Charge 25). At approximately 11.47am, JP allegedly called his former partner’s mobile telephone, however, she did not answer (Charge 26). JP’s former partner drove from the police station to her place of work. As she drove into a nearby carpark at approximately 12 noon, she observed a grey Ford Ranger utility vehicle follow and pull up beside her vehicle. It is alleged that JP was driving the grey Ford Ranger. He allegedly wound down his window, screamed at his former partner “I’m going to fucking kill you” and then drove off at a high rate of speed (Charges 2, 27, 28 and 29). He was allegedly wearing a grey hooded jumper and latex gloves, and was holding a large shifter spanner when he allegedly threatened his former partner.
It is alleged the incident was partially captured on closed circuit television. The footage shows the 2 vehicles side-by-side, but does not depict any interaction between the occupants. The grey Ford Ranger was also captured on closed circuit television driving by the workplace of JP’s former partner approximately 1 hour before the incident, again 30 minutes before the incident, and again 25 minutes before the incident. The results of preliminary enquiries made by police of JP’s telephone service provider suggest that at the time of the alleged incident, JP’s mobile telephone was in the vicinity of the carpark. The prosecution is yet to obtain expert evidence concerning the location of JP’s telephone, which will be necessary if there is to be a contested hearing.
JP was arrested and charged on 30 August 2024 and was remanded overnight to appear at the Magistrates’ Court on 31 August 2024.

B.1.2 Charges dated 12 June 2024

As previously outlined,[5] at the time of his arrest, JP was on bail in relation to other alleged offending perpetrated against his former partner.
[5]See par 3 above.
It is alleged that on the morning of 13 May 2024, JP’s former partner was getting their children ready for school. JP was present and his former partner confronted him about not helping her with the children. A short while later, JP allegedly followed his former partner into her bedroom, approached her from behind and put his hands around her neck, placing her in a chokehold. JP then allegedly pinned his former partner to the bed in a face down position which resulted in her being unable to breathe or make any noise for approximately 30 seconds. While allegedly strangling his former partner, JP allegedly whispered in her ear, “you think I’m lazy now?”. JP’s former partner does not recall losing consciousness, but has reported to police that she believed she was going to die. The strangulation was allegedly interrupted when their youngest child knocked on the bedroom door.
JP’s former partner went to see a doctor the following day, but did not disclose the incident. She did not report any injuries to her neck to the police.
In the days after the alleged incident, JP’s former partner called a domestic violence hotline. JP’s former partner reported to police that the advice she received from the call taker encouraged her to ask JP to leave her home for good.
Ten days later, at approximately 10.45am on 23 May 2024, JP’s former partner was working from home when JP allegedly began repeatedly calling her mobile telephone. JP’s former partner sent him a text message asking him to stop. In response, JP allegedly drove to his former partner’s house to confront her. He allegedly let himself in using the front door and began demanding the keys to her vehicle. JP’s former partner refused JP’s request and he allegedly responded by threatening to kill her.
JP’s former partner then challenged JP and asked if he would kill the mother of his children. JP allegedly responded by stating he would “put a hit on her and her family”, and then took her laptop and walked outside. JP’s former partner followed JP and allegedly observed him pacing, yelling and repeating his threats to kill her. JP then allegedly stated “fuck it, I’ll do it myself” and began walking towards his former partner. JP’s former partner retreated into the house and hid in a closet in her bedroom. JP allegedly came back into the house and began looking for his former partner but eventually gave up when he could not find her. JP’s former partner reported to police that she feared for her life.
After leaving his former partner’s address, JP collected their children from school and childcare.
Police were called by the sister of JP’s former partner who, unbeknown to JP, was on the telephone on loudspeaker during the incident.[6] Upon the arrival of police at 11.20am, JP’s former partner ran out of the house extremely distressed and broke down on the ground.
[6]At the hearing, the prosecution conceded that the sister of JP’s former partner had declined to provide a statement to police. The prosecution also conceded that the recording of the telephone call did not capture anything allegedly said by JP.
At approximately 1.14pm, JP’s former partner provided a digitally recorded evidence-in-chief statement. Police later called JP and requested his attendance at that police station. After speaking with his legal representatives, he refused to attend.
On 24 May 2024, JP presented at the nominated police station where he was arrested, charged and granted bail. The charges were later amended on 12 June 2024.
The 7 charges against JP dated 12 June 2024 are as follows:
(1)Three charges of use of a carriage service to menace, harass or cause offence, contrary to section 474.17(1) of the schedule to the Criminal Code Act.
(2)One charge of assault, contrary to common law.
(3)Two charges of making a threat to kill, contrary to section 20 of the Crimes Act.
(4)One charge of stalking, contrary to section 21A of the Crimes Act.
JP’s bail in respect to these charges was revoked upon his subsequent arrest on 30 August 2024.
On this application, JP seeks bail in relation to the charges dated 12 June 2024 and 30 August 2024.

B.2 Family violence orders and reports, and views of the alleged victim

At present, JP is the respondent to 1 active interim family violence intervention order made on 16 September 2024 in which his former partner and 3 children are listed as protected persons. The conditions of that order are that JP must not:
Commit family violence against the protected person(s).
Intentionally damage any property of the protected person(s) or threaten to do so.
Attempt to locate, follow the protected person(s) or keep him/her/them under surveillance.
Publish on the internet, by email or other electronic communication any material about the protected person(s).
Contact or communicate with a protected person by any means.
Approach or remain within 5 metres of a protected person.
Go or remain within 200 metres of [residential address] or any other place where a protected person lives, works or attends school/childcare.
Get another person to do anything [JP] must not do under this order.
In addition, it was provided that:
[JP] may:
(a)do anything [permitted by] a child protection order or a written agreement approved by [the Department].
(b)communicate with a protected person through a lawyer or mediator; or
(c)arrange and/or participate in counselling or mediation; or
(d)go to the home of a protected person, in the company of a police officer to collect personal property,
BUT ONLY IF [JP] does not commit family violence while doing so.
Records obtained from the Victoria Police Law Enforcement Assistance Program database show that JP has been listed as the respondent in respect to 8 family violence reports dating back to 2010. His former partner has been listed as the complainant in respect to 7 of those reports.
In a letter addressed to “Your Honour” dated 18 October 2024, an acting advanced child protection practitioner employed by the Department provided the following risk assessment:
Child Protection holds significant concerns for the safety and wellbeing of [JP’s former partner and their 3 children] if [JP] is not remanded. Based on the significant pattern and history of [JP] perpetrating violence towards [his former partner] and the escalation in his use of violence and threats it is of significant concerns (sic) that he may be released back into the community. Child Protection have assessed that [JP’s former partner] is at high risk of death due to [JP’s] behaviours.
Objection was taken to the letter for various reasons. The letter had not been prepared for the purposes of this application. It was originally prepared for a hearing on 22 October 2024 in the Magistrates’ Court. As a result of the objection, the matter was stood down so that the child protection practitioner could be made available to give evidence.
Without descending into the detail, it was plain from the child protection practitioner’s evidence in chief that some important matters in her letter could not be substantiated. In particular, the child protection practitioner confined her concerns regarding the safety of the children and gave no view about the position of JP’s former partner. Further, the suggestion that JP may have had access to firearms (which was relied upon by the child protection practitioner in assessing a “very high level of risk”) appeared to have little, if any, basis. Furthermore, it became clear that much of the risk assessment provided by the child protection practitioner had been based on information provided by another independent agency on a basis that was not clear.
Accordingly, albeit somewhat reluctantly, the prosecution agreed that some aspects of the letter should not be relied upon. Further, in light of the concessions made by the witness, she was not cross-examined by JP’s counsel.
Notwithstanding significant aspects of the letter were shown to be based upon matters that were unsatisfactory, there was no dispute that JP himself had attended a formal interview with staff from the Department. The letter recorded that JP stated during the interview that he acknowledged “getting up in [his former partner’s] face”. However, JP denied he would ever lay a hand on his former partner. While he conceded he had restrained her, he stated that he did so to prevent her from hitting him. The letter also recorded the existence of the intervention order made on 20 June 2024 and that it had been breached repeatedly. This included a reference to an email from JP to his former partner referring to her as a “dog” and a “scam”.
In short, little weight ought to be placed upon many of the views expressed in this letter. Although the court is not bound by the rules of evidence,[7] the weight to be placed on assertions made is necessarily informed by the evidence (or lack thereof) before the court.[8] That said, the uncontroverted evidence contained in this letter demonstrated that in June and July 2024, there was a considerable amount of animosity between JP and his former partner and that he had acted in breach of an intervention order.
[7]Bail Act, s 8(1)(aa).
[8]Compare ibid, s 8(1)(e); see also Re Tilley [2024] VSC 274, [59]-[64].

JP’s former partner has informed police that she is “petrified” about the prospect of JP being released on bail. She is scared that JP will turn up at her home if he is released. She does not have the means to relocate and does not want to interrupt the routine of her children. Further, she does not believe that any conditions of bail will put her at ease.

B.3 JP’s personal circumstances

JP was born in Baghdad, Iraq in 1990. He is currently 34 years old. In 1992, JP and his family fled the country to avoid persecution.
In 1994, the family was granted visas by the Australian government and moved to Melbourne.
JP attended a catholic school in North Melbourne. He left school in year 11 to help financially support his family. He commenced a certificate 3 course in automotive and panel beating. Later, at the age of 19, he commenced working for his uncle who owned a car detailing business.
At the age of 23, JP and 2 of his cousins set up their own car detailing business. JP reports that he was the main administrative organiser of the business. A letter from JP’s business partner was tendered in support of his application for bail, which outlined that JP’s incarceration has placed a significant strain on their business operations.
JP reports that he moved in with his former partner in 2017 when she was pregnant with their first child. They were married in a church wedding in 2018, however, they were never legally married.
In July 2020, a family violence intervention order was made in which JP was the named respondent and his former partner was listed as a protected person. JP was also charged with unlawful assault in relation to that incident, however, the matter was later withdrawn and the charges were dismissed.
JP reports that he moved out of his former partner’s home to live with his parents in May 2024. He reports that he and his former partner were co-parenting during that time and that he was assisting financially with household bills. This evidence is disputed by the prosecution. JP’s former partner has informed police that JP was not contributing to household bills and did not formally reside at her address. She informed policed that she believed JP’s failure to contribute to household bills was due to his gambling problems, cannabis use and substantial debt.
JP has a limited criminal history, including 2 priors for theft and 1 prior for failing to answer bail in 2023. He has no priors for family violence related offending. This is JP’s first time in custody.
In a report dated 23 October 2024, a consultant psychologist assessed JP to be a “suitable candidate for community-based treatment” if bail were to be granted. It was recommended that JP attend weekly, in-person psychological counselling appointments, and undertake further assessments as required to achieve “diagnostic clarity”.

C. Legal principles

The charges dated 30 August 2024 include offences listed under Schedule 2 of the Bail Act 1977 (Vic).[9] As JP was on bail for a Schedule 2 offence at the time of his alleged offending on 30 August 2024,[10] it was common ground between the parties that he must demonstrate the existence of exceptional circumstances that justify the grant of bail.[11]
[9]Bail Act, Sch 2, items 7 and 19. It is noted that items 8(b) and 18(b) may also have application in respect to certain charges dated 30 August 2024, however, it is not necessary to make such a finding.
[10]Ibid, Sch 2, item 7.
[11]Ibid, ss 4AA(2)(c)(i), 4A.
In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B. These include the competing considerations of maximising the safety of the community, the presumption of innocence and the right to liberty.[12]
[12]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances in question must be such as to take the case out of the ordinary or norm so as to justify the grant of bail.[13] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters even when none of the individual circumstances is properly considered exceptional.[14]
[13]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[14]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[15] In assessing whether any risk is an unacceptable risk, the court must consider whether the risk may be mitigated by any conditions of bail.[16]
[15]Bail Act, s 4D(a).
[16]Ibid, s 4E(3)(b). See also s 5AAA.
The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the exceptional circumstances test has been met.[17] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[18]
[17]Ibid, s 4E(1).
[18]Ibid, s 4E(2).
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[19] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:
[19]Ibid, ss 4A(3), 4E(3)(a).
(aa) whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i)that the accused would be sentenced to a term of imprisonment; and
(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
…
(f) whether there is in force—
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO[20] made against the accused;
[20]As that term is defined in the Family Violence Protection Act.
(g)the accused’s personal circumstances, associations, home environment and background;
…
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
In addition, when considering the release on bail of an applicant charged with a family violence offence,[21] the court must consider whether, if the applicant were released on bail, there would be a risk that the applicant would commit family violence, and whether that risk could be mitigated by the imposition of a condition or the making of a family violence intervention order.[22]
[21]Family violence offence is defined in s 3 of the Bail Act as an offence against ss 37(2), 37A(2), 123(2), 123A(2) or 125A(1) of the Family Violence Protection Act or an offence where the conduct of the accused is family violence (as that term is defined in the Family Violence Protection Act).
[22]Bail Act, s 5AAAA(2).
If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of the risk that the applicant may endanger the safety or welfare of any person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.[23] However, those conditions must be no more onerous than is required to reduce the likelihood of the risk in question, and must be reasonable, having regard to the nature of the alleged offending and the circumstances of the applicant.[24] Further, any condition imposed must, relevantly, be consistent with each condition of any active family violence intervention order, unless the court is satisfied that the proposed condition of bail will better protect the safety or welfare of an alleged victim or a protected person.[25]

D. Submissions

[23]Ibid, s 5AAA(1).

[24]Ibid, s 5AAA(2)(a) and (b).

[25]Ibid, s 5AAA(2)(c) and (3).

D.1 JP’s submissions

In support of JP’s application for bail, it was submitted that exceptional circumstances were established by the combined weight of several factors, namely:
(1)The existence of “very triable issues” in respect to the prosecution case. It was submitted the case against JP was not strong. In respect to the charges dated 12 June 2024, JP has denied the allegation of strangulation on 13 May 2024, and the threats to kill allegedly made on 23 May 2024. It was noted that his former partner did not mention the incident of strangulation to her doctor the following day and that there was a lack of explanation for her not having done so.[26] In respect to the charges dated 30 August 2024, it was submitted that JP’s contact with his former partner occurred in the context of him receiving calls from her during the same period.
(2)The delay in the matter proceeding to contest. It is anticipated that the contest hearing will not take place until the first half of 2025.
(3)The likelihood that JP’s time in custody on remand if bail were to be refused would exceed any term of imprisonment imposed. It was submitted that there is a “genuine danger” that JP will serve more time on remand than any sentence he might receive if found guilty of the charges the subject of this application.
(4)The availability of treatment. It was proposed that JP attend weekly psychological counselling sessions if bail were granted.
(5)The availability of stable accommodation. It was proposed that JP would reside with his parents at their home in the northern suburbs of Melbourne.
(6)The availability of a bail guarantee. In support of her son’s application, JP’s mother offered $100,000 as a bail guarantee by way of security over her home.
(7)The lack of any relevant prior offending. It was submitted that JP has a limited criminal history and has not been found guilty of any family violence offending or any other violent offending.
[26]See par 22 above. Counsel for JP properly conceded that JP’s former partner may well be able to provide an explanation as to why she did not disclose the incident to her treating doctor, but reiterated that no such explanation was before the court on this application.
It was conceded that there is some evidence that suggests JP presents a risk of physically harming and contacting his former partner. It was also conceded that JP had “plainly contravened” an intervention order on numerous occasions after he had been granted bail. However, it was submitted that the risks were not unacceptable in light of JP being assessed as suitable for community based treatment, the bail guarantee offered by his mother, his reported acceptance that his relationship with his former partner is over, and his appreciation that any further breaches would likely result in him being again remanded. It was further submitted that it would be possible to sufficiently mitigate any risks associated with a grant of bail to an acceptable level by the imposition of appropriate conditions. The following conditions of bail were initially proposed on behalf of JP, namely that he must:
(1)Reside at his parents’ residential address.
(2)Report to his local police station daily.
(3)Not contact any witness for the prosecution.
(4)Abide by the terms of the family violence intervention order currently in place.
(5)Only have 1 mobile telephone, provide the number of which to the informants within 24 hours of obtaining it, and provide his telephone to a member of Victoria Police for inspection upon request.
(6)Not leave his place of residence between 10.00pm and 6.00am each day and present at the front door of his residence upon the request of a member of Victoria Police during the curfew hours.
(7)Not travel to certain suburbs, unless for the purpose of picking up or dropping off his children as permitted by any family violence intervention order.
(8)Not leave the State of Victoria.
During the hearing of the application, further conditions were proposed. JP agreed he would comply with any lawful direction from his psychologist and consented to her providing a report concerning his compliance with the conditions of bail to the informant or the court. In addition, JP’s counsel disavowed the proposed condition that would permit JP to travel in the suburbs within the vicinity of his former partner’s home to pick up and drop off his children. It was agreed JP should not be able to enter the relevant suburbs for any reason other than to attend court.
It was further submitted that JP does not present an unacceptable risk of failing to answer bail. In respect to his previous offence of failing to answer bail,[27] it was submitted that JP attended court when required, however, due to a misunderstanding with the desk clerk, he was under the false impression that his matter had been adjourned administratively and his attendance was not required.
[27]See par 49 above.

D.2 Prosecution’s submissions

In response, the prosecution submitted that JP had failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances, as none of the matters raised, individually or collectively, could be described as exceptional. However, even if the court were so satisfied, it was submitted that JP presented an unacceptable risk of endangering the safety or welfare of any other person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody. In this regard, reference was made to:
(1)The likelihood that JP’s time in custody on remand if bail were refused would exceed any term of imprisonment imposed. The prosecution submitted that if the matter proceeds to a contested hearing in the first half of 2025, JP’s time spent in custody would be within the range of an appropriate term of imprisonment. It was submitted with reference to Re Dib,[28] that, in any event, the court must still consider the matter and may refuse bail if satisfied that the accused poses an unacceptable risk of the kind referred to in section 4E of the Bail Act.
(2)The nature and seriousness of the alleged offending. It was submitted that the alleged offending is very serious and can only be regarded as prolonged, highly aggressive, threatening and extremely violent.
(3)The strength of the prosecution case. In light of the evidence of JP’s former partner, her contemporaneous notes and the availability of telephone records and closed-circuit television footage, it was submitted that the case against JP cannot be described as weak.
(4)The failure to comply with his earlier grant of bail. While it was acknowledged it was “police-imposed bail”, it was submitted that JP’s decision to commit the offences the subject of the charges dated 30 August 2024, whilst on bail for other family violence offences the subject of the charges dated 12 June 2024, demonstrates his disregard for court orders. It was further submitted JP also disregarded an intervention order in breaching his conditions of bail, and persistently so. In circumstances where it is uncontroversial JP breached the intervention order made on 20 June 2024 on multiple occasions, it was contended it was unlikely his conduct would be any different if he were again granted bail.

E. Consideration

[28][2019] VSC 11, [53], [57]-[59] (Lasry J).

E.1 Exceptional circumstances

The existence of exceptional circumstances has not been established.
The allegations against JP are extremely serious. Further, the case against him does not rely solely upon the evidence of his former partner, but also includes telephone records and closed-circuit television footage which corroborate the account given by his former partner. Of course, JP is presumed to be innocent, but the case against him cannot be described as weak. Indeed, it would appear that, at least in respect to the charges dated 30 August 2024, there could be no real controversy that he repeatedly breached the intervention order then in place, and knowingly so.
To elaborate, JP has previously breached bail, it having originally been granted on 24 May 2024. In particular, he made repeated contact with his former partner despite a condition of his bail specifically prohibiting him from doing so. This conduct was also engaged in contrary to the terms of an intervention order.
It is accepted that JP’s criminal history is limited and of little relevance to the charges he presently faces. However, in the circumstances of this case, the absence of a relevant criminal record is not exceptional. In cases involving family violence in connection with the breakdown of an intimate relationship, it is not unusual for offenders to have no or only a limited criminal record.
If bail were granted, JP has stable accommodation available to him. However, it is notable that this was the same location at which JP resided when the alleged offending took place.
The evidence of the availability of community-based treatment by a psychologist was far from exceptional. No doubt it is a matter to be considered in his favour, but a closer consideration of the matters related to the psychologist’s report necessarily temper the weight to be attributed to this evidence.
Indeed, given the evidence of JP’s issues with drugtaking, gambling and other matters which relate to his mental health, the prospect of a single weekly meeting with the psychologist provided limited comfort that JP intended to properly address the issues at hand. In this regard, it is noted that the psychologist’s treating rooms are in the south-eastern suburbs of Melbourne, whereas JP’s proposed residential accommodation is in the northern suburbs of Melbourne. Notwithstanding the considerable distance between these 2 locations and the time it would be likely to take for a return trip, it is envisaged that JP will attend sessions “initially” in person “for improved observation regarding mood, effect, potential relapse”. It was not stated how long it would be anticipated that in-person consultations would be likely to occur.
The report inaccurately stated that JP did not have any prior offences, violent or otherwise. There was no further report to convey how the psychologist formed this erroneous view, or whether or not this misunderstanding affected any of the views she expressed.
The psychologist concluded the report by noting JP had presented as a willing and compliant participant who appeared to be genuinely interested in “gaining insight into his misconduct” and making appropriate corrections for the future. JP was recorded as having articulated his appreciation for his period on remand, acknowledging that he otherwise would not have been able to implement a routine that allowed him to withdraw from cannabis dependence. The psychologist suspected that with sufficient supervision, support and commitment from JP, this positive trajectory could continue.

A number of matters arise. Both this report and other evidence refer to JP’s gambling problem. Relatedly, in response to the suggestion that JP had provided financial assistance to his former partner and children,[29] his former partner stated to police that no such financial assistance had been forthcoming. She stated that due to JP’s gambling problems, cannabis use and substantial debt, JP was not contributing financially to household bills and that there were no arrangements in place for child support payments to be received by her. She stated unequivocally that this “never occurred”. No evidence was led by JP of any such payments being made.
[29]See par 48 above.
There was also no evidence to suggest JP’s gambling or substantial debt problems have been addressed in any way. Although his cannabis use has reportedly ceased in the structured environment he now resides, serious ongoing risks are created by each of these matters. The arrangement for weekly sessions to address these and other significant issues is far from exceptional.
As noted above, the report expressly acknowledged JP’s previous misconduct (albeit only in general terms). Further, it is noted that JP was able to articulate his “problems with anger”. While these acknowledgements are undoubtedly important for therapeutic purposes, they also shed some light on matters more generally in assessing whether exceptional circumstances exist.
JP’s former partner is extremely concerned about the prospect of JP being granted bail. She has stated to police that she is petrified at the prospect of JP being released. She is unable to move from her current location for financial and other practical reasons and has expressed the belief that JP’s conduct to date demonstrates that it is unlikely that any court order would deter him from turning up at her home.
I am not satisfied that if the matter is to be heard and determined in the first half of next year, as anticipated, that JP’s time spent in custody on remand would likely exceed a sentence imposed if he is ultimately found guilty. Further, neither any delay that has been experienced to date, nor the foreshadowed timing of any contested hearing could be described as out of the ordinary.
The offer of a bail guarantee of $100,000 is a significant matter. It would appear JP’s mother has only recently become fully appreciative of the seriousness of JP’s alleged offending. In any event, it is obvious that she is treating the matter extremely seriously. However, when considered in the context of the seriousness of the alleged offending, the proposed bail guarantee cannot be properly regarded as exceptional.
When the above factors are considered in the context of the evidence as a whole, including all of the surrounding circumstances, neither individually nor in combination do they establish exceptional circumstances that justify the grant of bail.

E.2 Unacceptable risk

Although unnecessary to decide, for completeness I note that if exceptional circumstances had been established, I would have also been satisfied that the prosecution had established that JP posed an unacceptable risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means, if he were to be released on bail. The matters referred to above are repeated.
In my view, contrary to JP’s submission, it is not of particular significance that JP’s breaches of the terms of existing intervention orders and conditions of bail occurred prior to his first experience in custody. Naturally, it may be assumed that 70 days on remand has had a salutary effect on JP and that he may appreciate the consequences of any breach more fully. However, the simple fact remains that the previous regimes imposed upon him were very serious and despite that, he has repeatedly acted contrary to the restrictions imposed, and knowingly so. The risk of further breaches is heightened by JP’s ongoing issues.[30]
[30]See pars 69-75 above.
In short, I would have been satisfied that the prosecution had established that JP posed an unacceptable risk of endangering the safety and welfare of another person, namely his former partner, whether by committing an offence that has that effect or by any other means, if he were to be released on bail.
For completeness, I should add that I would not have been satisfied that if bail had been granted, that JP would have failed to surrender into custody given the circumstances in which he allegedly failed to surrender in accordance with bail conditions in 2023. It would appear that JP attended court as ordered, but did not appear before the court because of his confusion about what was required.[31]
[31]See par 62 above.

F. Conclusion

For the reasons stated, I am not satisfied that exceptional circumstances exist that justify the grant of bail. Further, even if I had been so satisfied, I would have found that JP posed an unacceptable risk of the kind referred to above. Accordingly, bail is refused.

---

[2024] VSC 691

8 November 2024