Re K I
[2021] VSC 736
•9 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0307
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by K I |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2021 |
DATE OF JUDGMENT: | 9 November 2021 |
DATE OF REVISED REASONS: | 10 November 2021 |
CASE MAY BE CITED AS: | Re K I |
MEDIUM NEUTRAL CITATION: | [2021] VSC 736 |
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CRIMINAL LAW — Bail — Application for bail — Charges of criminal damage and contravening a conduct condition of bail — ‘Compelling reasons’ test — Compelling reasons conceded by respondent — Delay in matter finalising — Probability applicant would spend more time remanded in custody than term of imprisonment imposed upon a finding of guilt if bail not granted — Youth — First time in custody — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA; Family Violence Protection Act 2008 (Vic) s 4.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Gabriel Chipkin | Victoria Legal Aid |
| For the Respondent | Ms Danielle Pastoors | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail by K I ( ‘applicant’). He is 21 years old and has no criminal history. His current remand period, which commenced on 2 November 2021, represents his first time in custody.
Procedural history
On 29 October 2021, the applicant was arrested by Constable Daniel Blume on a single charge of criminal damage, relating to events involving the applicant’s former partner (‘the complainant’) alleged to have occurred on 10 October 2021.
The same day, the applicant was granted police bail subject to various conditions, including that he not commit family violence (such as by exhibiting controlling or dominating behaviours towards the “protected person(s)”), not publish anything about them on the internet, and not attend their residence. At the same time, an outstanding application and warrant for a family violence intervention order (‘FVIO’), naming the complainant and her child (‘SS’) as the affected family members (‘AFMs’), was executed.
The term ‘protected person(s)’ was not defined in the applicant’s bail conditions or undertaking. The respondent relies on the applicant having been served with copies of the FVIO application and warrant, naming the complainant and SS as the AFMs, as being sufficiently “obvious” for him to appreciate who the protected persons were intended to mean in the bail conditions.
Between 30 October and 2 November 2021, it is alleged that the applicant breached each of the aforementioned bail conditions. He was arrested by Constable Morgan Lees on 2 November 2021, charged with three offences of contravening a conduct condition of bail and remanded overnight.
On 3 November 2021, the applicant was refused bail in the informant Lees matter in the Neighbourhood Justice Centre at Collingwood. This was on the basis that he posed an unacceptable risk of endangering the safety and welfare of any person. The same day, the bail which had been granted to him in the informant Blume matter was revoked.
On 5 November 2021, the applicant filed an application for bail in this Court. The informant Lees and informant Blume matters are next listed for mention on 6 December 2021 at the Neighbourhood Justice Centre in Collingwood.
The alleged offending
Background
The applicant and the complainant were in a relationship. They share one child, who is seven months old. The complainant also has a child from a previous relationship, who is three years old (‘SS’).
Uncharged incidents
The applicant and complainant had separated on or about 10 August 2020. On 15 August 2020, the applicant and the complainant had a verbal argument. Police attended and spoke to the applicant. The applicant informed police that the complainant had recently fallen pregnant, that he was the father and that he was happy to assist with raising the child. The applicant had moved back into the complainant’s address in order to look after her. While at the address, the applicant searched through the complainant’s mobile phone and located messages that, according to the applicant, suggested that the complainant had been intimate with other men. The applicant explained that this had caused the verbal altercation which prompted police attendance.
On 29 July 2021, the applicant returned home (having ostensibly reunited since the previous incident) in what the complainant described to police as a ‘bad mood’ and accused the complainant of being intimate with other men. The complainant allowed the applicant to look through her phone to defuse the situation. The applicant allegedly yelled at the complainant in the presence of the children. The complainant asked the applicant to leave the premises. The applicant initially refused, however was in the process of leaving upon the arrival of police. The applicant was initially hostile towards the police but subsequently calmed down and left the property and slept elsewhere.
Informant Blume matter
At 7:15pm on 10 October 2021, the applicant and the complainant were at home at the complainant’s residence in [redacted] with the children. They got into an argument about dinner, during which the applicant was aggressive. He packed his bags and left the residence.
Almost immediately after leaving, the applicant returned and commenced banging on the complainant’s front door, causing the hinge and lock to break. He then threw some tiles at the door and left. The throwing of the tiles is one of the matters on which the respondent particularly relies as being illustrative of unacceptable risk of releasing the applicant on bail. There are discrepancies within the material as to whether, at the time of throwing the tiles, the door had already been closed by the complainant or the tiles were thrown at the complainant as she was closing the door.
A neighbour reported the incident to police, who attended shortly afterwards and a complaint and warrant were later issued.
On 29 October 2021, the applicant presented at Richmond Police Station. He was then arrested and during a record of interview made full admissions to damaging the complainant’s front door, stating that he had not intended to do so but had been attempting to have the complainant let him inside. He was charged with criminal damage[1] and granted bail subject to conditions, in effect, that he not:
[1]Contrary to s 197 of the Crimes Act 1958 (Vic).
(a) commit family violence against the protected person(s) (who, as mentioned, are said to be undefined in the bail undertaking), including:
(i) physical, sexual, emotional, psychological or economic abuse;
(ii) exhibiting threatening, coercive, controlling or dominating behaviours that make the protected person(s) fear for their safety or wellbeing or that of another;
(iii) unlawful deprivation of liberty; or
(iv) exposing children to such behaviours.
(b) intentionally damage the protected person(s)’ property or threaten to do so;
(c) follow the protected person(s) or keep them under surveillance;
(d) publish on the internet, by email or other means of electronic communication any material relating to or purporting to relate to the protected person(s);
(e) go within 200 metres of the protected person(s)’ home, or any other place where they live, work or attend school; or
(f) cause another person to engage in such conduct.
Informant Lees matter
On 30 October 2021, the applicant posted the following to his Facebook account:
Your [sic] a lil putrid dog, keep beating Ur kids an talking shit bout every cunt U know. Ur a using lil mut and everyone knows it, smokes dope round there [sic] kid and thinks it’s fine fuck outta here crackhead This is why you don’t have a kid to [complainant].
On 2 November 2021, the applicant attended the complainant’s residence armed with a metal pole. This is also a matter of significance insofar as the respondent’s opposition to this application for bail is concerned. The applicant walked through the front door and said to one of the complainant’s friends who was inside, ‘If I ever see you here again, I will smash your face’.
The applicant left and returned shortly after without the metal pole. He refused to leave the front door until police arrived.
When police arrived, they arrested the applicant and transported him to Melbourne West Police Station. During a record of interview, the applicant made full admissions. In relation to the Facebook post, he said he wasn’t aware it was a breach initially and that he deleted it once he was informed. In relation to attending the complainant’s residence, he said he did so for his child. The applicant was charged with three counts of contravening a conduct condition of bail[2] and was remanded in custody.
[2]Contrary to s 30B of the Bail Act 1977 (Vic).
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (Vic) (‘the Act’), the Court is required to have regard to the guiding principles in s 1B.[3]
[3]Bail Act 1977 (Vic) (‘the Act’), s 1B(2).
Step 1 – show compelling reason test
Because the applicant is charged with a Schedule 2 offence within the meaning of s 3 of the Act,[4] bail must be refused unless he satisfies the Court that a ‘compelling reason’ exists that justifies the grant of bail.[5] In considering whether a compelling reason exists, the Court must take into account the relevant surrounding circumstances, including those in s 3AAA of the Act.[6]
[4]Committing an offence against the Act, in this case contravening a conduct condition of bail, is a Schedule 2 offence. See the Act, sch 2, item 30.
[5]Above n 3, ss 4AA(3), 4C(1)-(2).
[6]Ibid s 4C(3).
Meaning of compelling reason
The phrase ‘compelling reason’ is not defined in the Act. Its meaning has been considered authoritatively in decisions of this Court. In Rodgers v The Queen, their Honours Beach, Kaye and Ashley JJA synthesised the relevant principles as follows:[7]
(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 in custody 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.
[7][2019] VSCA 214 (Beach, Kaye and Ashley JJA) [43] (citations omitted).
Step 2 – unacceptable risk test
If satisfied of the existence of a compelling reason that justifies the grant of bail, the Court must apply the unacceptable risk test.[8] The Court must consider whether, having regard to the surrounding circumstances, the respondent has established that the applicant poses an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[9] The Court must further consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[10]
[8]Above n 3, ss 4C(4) and 4D(1)(b).
[9]Ibid s 4E.
[10]Ibid s 4E(3).
Family violence risks
In considering releasing the applicant on bail, the Court must make inquiries of the prosecutor as to whether there is in force a family violence intervention order (‘FVIO’), family violence safety notice or recognised domestic violence order against the applicant.[11]
[11]Ibid s 5AAAA(1).
Further, because the applicant is charged with a family violence offence, the Court must consider whether, if he were released on bail, there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.[12]
[12]Ibid s 5AAAA(2).
A warrant was issued to arrest the applicant in relation to an application for a FVIO following the 10 October 2021 incident which is the subject of the Informant Blume matter. The warrant appears to have been executed when the applicant self-presented at Richmond Police Station on 29 October 2021. Victoria Police filed the FVIO application with the Court prior to the 3 November 2021 hearing date for the Informant Blume charges, however it became apparent during the hearing that the police had not filed the executed warrant. As such, the FVIO application was unable to be disposed of at that time.
On 8 November 2021, an interim FVIO was made at the Neighbourhood Justice Centre in Collingwood naming the applicant as the respondent and the complainant and SS as the protected persons. It includes full no-contact conditions with limited exceptions relating to child care arrangements, contact through a lawyer and counselling or mediation.
The applicant’s personal circumstances
The applicant was born on 28 June 2000 and is currently 21 years old. The applicant has eight siblings. The applicant was born in Australia. His cultural heritage is Lebanese.
The applicant was previously in a relationship with the complainant for three years. As I previously mentioned, they have a seven month old son together.
Prior to being remanded, the applicant was residing at [redacted]. This is temporary accommodation organised by Union Housing, where the applicant had been residing since he ceased living with the complainant in early October 2021.
Criminal history
The applicant has no criminal history.
The applicant’s contentions
The written material filed on the applicant’s behalf argues that the following matters, in combination, establish a compelling reason that justifies the grant of bail.
Nature and seriousness of the alleged offending
The applicant contends that the criminal damage charge which is the subject of the informant Blume matter ‘should be viewed [as being] towards the lower end of seriousness’. The reason for this contention is that the quantum of the alleged damage is $100 and the informant’s summary suggests that the damage was occasioned by the applicant banging on the door with an open palm. It is the applicant’s position that he did not intend to break the door.
The applicant notes the three charges of contravening certain conduct conditions of bail which are the subject of the informant Lees matter carry a maximum penalty of 30 penalty units or three months’ imprisonment.
Strength of the prosecution case
With regards to the informant Blume matter, whether the applicant intended to damage the door is in issue. It is also submitted that given the quantum of the alleged damage and the applicant denying an intention to damage the door, “the more appropriate charge in this case might be wilful damage contrary to s 9(1)(c) of the Summary Offences Act 1966 (Vic).”
The applicant submits there are triable issues in relation to the informant Lees matter.
Firstly, the charges are said to be defective as the bail conditions the applicant has allegedly breached do not specify who the relevant ‘protected persons’ are. The complainant is not named in the undertaking of bail as a protected person, nor is she named as a protected person in the served application for a FVIO. The applicant notes that the term ‘protected person’ is defined in the Family Violence Prevention Act 2008 (Vic) as a person protected by an FVIO that is in force.[13] The applicant notes that no FVIO was in force at the time of the applicant’s alleged contravention of his conditions of bail, and as such the reference to ‘protected persons’ in the bail conditions is ‘fundamentally flawed’ as the conditions ‘[do] not properly identify the persons to whom protection [is] afforded’.
[13]Family Violence Protection Act 2008 (Vic), s 4.
Secondly, the applicant submits that there was a ‘reasonable excuse’ for him attending the complainant’s property, the reasonable excuse being that the applicant did so to protect his child. It is submitted on the applicant’s behalf that he was concerned that the complainant and her friend were smoking cannabis in his child’s presence, which the applicant believed would be deleterious to the child’s health to the point it would require him to be hospitalised. The applicant submits he attended the address with a metal pole because he thought someone else was at the property, but abandoned the pole upon realising this was not the case.
Thirdly, the applicant submits that the Facebook post the subject of charge 2 was published prior to the applicant entering into an undertaking of bail and that, upon a friend informing him that the Facebook post could be a contravention of his bail conditions, the applicant removed it.
Bail compliance history
The applicant’s grant of bail for the informant Blume matter was his only prior undertaking of bail.
Outstanding matters
The applicant is not the accused in any other outstanding matters aside from those for which he seeks bail.
Family violence intervention order in force
As detailed earlier, there is now a current interim FVIO in force made on 8 November 2021 at the Neighbourhood Justice Centre in Collingwood, with which the applicant would clearly be required to comply.
Family support and stable accommodation
The applicant’s older sister, I Z, is prepared for the applicant to reside with her at [redacted] should he be granted bail. I Z has rented [redacted] for the last two years. I Z resides at [redacted] with her husband, I A, and their two young children. I Z and the applicant apparently have a close relationship. I Z is aware of the charges against the applicant and provided an undertaking on affirmation to the Court at the hearing of this application to report any breaches of any bail order or FVIO where the applicant is the respondent to Victoria Police and the Court. I am informed by Ms Pastoors on behalf of the respondent that the applicant’s proposed residential address, should he be granted bail, has been assessed by police and they are content for him to reside there.
Employment
The applicant works casually as a courier at Tranzworks, a transport and logistics company, however he is largely reliant on Jobseeker payments for his income.
Special vulnerability
To the extent that a special vulnerability applies in this case, the applicant is 21 years of age and is in adult custody for the first time.
Availability of treatment or bail support services
As the applicant’s matters are listed at the Neighbourhood Justice Centre in Collingwood, it is submitted that he has treatment available via the embedded specialist support team known as ‘Client Services’. The applicant has been referred to Client Services for assistance with anger management, men’s behavioural change and mental health treatment.
According to the material filed with the Court, the applicant suffers from depression and has a phone assessment scheduled at 4:00 on Wednesday 10 November 2021 with Mental Health Clinician Ms Sara Cantwell, which he will participate in should he be granted bail. An appoint between the applicant and Clinician Mr Nick Joseph will also be scheduled once Mr Joseph returns from leave on 9 November 2021, which is today. Mr Joseph provides ongoing support to offenders presenting with anger management, family violence and emotional regulation issues.
Delay and likely sentence
The applicant’s matters are next listed for mention on 6 December 2021 at the Neighbourhood Justice Centre in Collingwood. The actual hearing of the contest would be some time after that date, I assume. The respondent accepts that there will be a delay of some consequence as a result of the present arrangements in that Court.
It is submitted that it is highly unlikely that the applicant will receive a custodial sentence given his age and lack of criminal priors. As such, it follows that any time the applicant spends in custody will significantly exceed any term of imprisonment he is likely to receive upon a finding of guilt.
Unacceptable risk
The applicant also submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, complying with any FVIO in which the applicant is a respondent and engaging in treatment with the Client Services Team at the Neighbourhood Justice Centre.
The respondent’s contentions
Ms Pastoors on behalf of the respondent concedes that it is open to the Court to find that a compelling reason justifying the grant of bail to the applicant has been established.
Whilst conceding the existence of a compelling reason, the respondent makes the following observations in response to the applicant’s affidavit in support of bail. Firstly, the application for the FVIO did refer to the complainant as the protected person. The respondent submitted in the written material that it is obvious in such circumstances that the protected person for the purpose of the applicant’s bail conditions is the complainant. With respect, I would agree with that. Secondly, the applicant’s explanation that he attended the complainant’s address on 2 November 2021 because he was concerned about his child’s welfare is unsatisfactory. The respondent noted that could have notified Child Protection or Victoria Police rather than attending the address himself. The respondent also notes that the applicant’s stated belief that the child might require hospitalisation is undermined by the fact that he did not call an ambulance to attend the complainant’s address on 2 November 2021. Thirdly, the applicant’s explanation for attending the property with a metal pole because he believed someone else was there is also unsatisfactory. This is not a reasonable excuse for attending the property armed with a pole. Again, the applicant could have instead contacted police. With respect, I agree with those submissions.
The respondent confirms that the complainant has been consulted and “would be accepting of the applicant being granted bail”.
The application for bail is opposed on the basis that the applicant poses an unacceptable risk of endangering the safety and welfare of any person and of committing an offence while on bail.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant has made abusive comments to an unnamed person associated with the complainant on social media, has attended the victims’ premises armed with a metal pole and made threats to an associate of the complainant who was present at the address. This behaviour is said to demonstrate that the applicant is prepared to use violence and is likely to endanger the safety and welfare of the complainant and the general public if granted bail. The respondent submits that the applicant has demonstrated “an escalation in behaviour” as he breached his conditions of bail mere hours after becoming subject to them and again only days later.
Committing an offence whilst on bail
It is submitted that the applicant has made admissions to knowingly breaching the conditions of his grant of bail for the informant Blume matter. The respondent submits that this demonstrates the applicant’s willingness to disregard Court orders.
Analysis and conclusion
In the circumstances of this case I am satisfied that the applicant has established a compelling reason justifying the grant of bail. The respondent’s concession on that issue was appropriate.
So far as the issue of risk is concerned, I am not persuaded by the respondent that the risk associated with the release of the applicant on bail cannot be made acceptable with the imposition of appropriate conditions of bail. In my view, it is relevant to the question of risk that the applicant is aged 21 and is without any criminal history. It is also relevant that there will likely be a significant delay in this matter finalising. I would respectfully agree that the prospects of the applicant being sentenced to a period of imprisonment in relation to these matters is quite low.
I will therefore grant bail to the applicant and make the following order:
1.The said K I (‘the applicant’) be admitted to bail upon his own undertaking and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’);
(b)The applicant must notify the informants Constable Morgan Lees or Constable Daniel Blume or their nominee, being an authorised member of Victoria Police, at least 7 days in advance of any proposal to change to his place of residence;
(c)The applicant is to report to the Officer in Charge of Mill Park Police Station, or their nominee, every Monday between the hours of 12:00 am and 11:59 pm;
(d)The applicant not commit ‘family violence’ within the meaning of the Family Violence Protection Act 2008 (Vic);
(e)The applicant comply with any current Family Violence Intervention Order in which he is the respondent, including the order made on 8 November 2021 at the Neighbourhood Justice Centre at Collingwood;
(f)The applicant not contact or attempt to contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, except as permitted by any current Family Violence Intervention Order in which he is the respondent;
(g)The applicant engage in treatment with the Client Services team at the Neighbourhood Justice Centre and follow all lawful directions of any member of the Client Services team whilst engaging in such treatment;
(h) The applicant is to appear:
(i)at this Court, for the purpose of judicial monitoring, at 9:30 am on 2 December 2021 and thereafter as directed by this Court; and
(ii)at the Neighbourhood Justice Centre at Collingwood at 9:30 am on 6 December 2021 and any such other date thereafter as directed by that Court.
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