Re Keene
[2021] VSC 864
•17 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0344
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by CHRISTOPHER KEENE
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2021 |
DATE OF JUDGMENT: | 17 December 2021 |
CASE MAY BE CITED AS: | Re Keene |
MEDIUM NEUTRAL CITATION: | [2021] VSC 864 |
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CRIMINAL LAW – Application for bail – Single charge of attempt to pervert the course of justice – Applicable test – Respondent submits ‘exceptional circumstances’ test applies – Schedule 2, Clauses 1(a), (b), (c) and (d) – Meaning of ‘at large’ – Meaning of ‘serving a sentence’ – Applicant prima facie entitled to bail – Unacceptable risk – Lengthy criminal history and outstanding interstate warrants – Applicant on Community Correction Order (‘CCO’) and able to re-engage with that CCO – Delay – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3A, 4AA, 4E and Schedule 2, Clause 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D McGlone | Emma Turnbull Lawyers |
| For the Respondent | Ms T Bolton | Office of Public Prosecutions |
HER HONOUR:
Christopher Keene applies for bail on one charge of attempt to pervert the course of justice.
The alleged offending
In March 2020, the applicant was in custody together with John Verdesoto (‘Verdesoto’). The applicant was on remand for charges involving family violence against his then partner. The informant for those matters was Monaghan (‘the first Monaghan matters’).
On 23 March 2020, Verdesoto called Tracey Stephen (‘Stephen’) from custody and told her that his friend ‘Chris Keene’ needs to provide an address to be released from custody. Verdesoto outlined that he would give the applicant Stephen’s address, but he would not actually be living with her. Verdesoto is Stephen’s landlord.
On 2 April 2020, a bail application was heard in the County Court. On 6 April 2020, bail was refused. One reason for the refusal was that the address was wholly unsuitable, as it was proposed the applicant would reside back with his partner who was the alleged victim of the family violence charges.
On 24 April 2020, Verdesoto again called Stephen from custody, during which they discussed Stephen providing a bail address, and how she could say she knew the applicant.
On 27 April 2020, Verdesoto called Stephen and put the applicant on the phone. The applicant asked her if she had any questions, and she said the solicitor told her she might have to appear in court and “they’ll ask me how do I know you and how long have I known you”. Stephen said John (Verdesoto) had suggested she say that they met through her ex-husband, and recently reconnected. The applicant said that sounded like a good plan.
On 1 June 2020, Stephen swore an affidavit along the lines discussed in the above phone call.
On 11 June 2020, a further bail application commenced in the County Court. The affidavit of Stephen was tendered, and the matter was adjourned part-heard to enable Stephen to attend for cross-examination. She did not attend. On 20 July 2020 bail was again refused.
Essentially, the prosecution case is that the applicant, Verdesoto and Stephen concocted a false story in respect of evidence put to the County Court in support of a bail application by the applicant. The case relies on calls recorded by the prison’s ARUNTA telephone system, and the affidavit and evidence of Stephen.
Procedural history
On 7 October 2020, the applicant was charged on summons with attempt to pervert the course of justice. The informant for this charge is also Monaghan. At the time, the applicant was still in custody on the first Monaghan matters.
On 10 December 2020 the applicant was sentenced in the County Court for attempt to pervert the course of justice, persistent contravention of a family violence intervention order and other offences (the first Monaghan matters). The applicant, whilst in custody, had attempted to persuade the victim of the family violence offences to recant her police statements. He received a term of imprisonment consisting of time served, combined with a two year Community Correction Order (‘CCO’).
On 22 January 2021, he was placed on bail by a Magistrate in relation to this alleged offence. It seems this was done on the Magistrate’s own volition.
On 31 May 2021 he was committed to stand trial and trial bail was fixed, unopposed.
On 21 June 2021 his bail was varied, unopposed. Following this there was a directions hearing and two case management hearings on 6 July, 6 August and 20 October 2021 respectively. The applicant attended all hearings.
On 20 October 2021, the respondent made application in the Melbourne County Court to revoke the applicant’s bail. Given the applicant was appearing by WebEx from the Latrobe Valley, the application was adjourned until 26 October 2021 to enable the applicant to attend in person in Melbourne, which he did.
On 26 October 2021, the applicant’s bail was revoked.
On 1 December 2021 the applicant made application for bail in this Court.
The matter is next listed for a case conference in the County Court on 28 January 2022.
The co-accused
Verdesoto is charged with one charge of attempt to pervert the course of justice. He is on bail and his matter is in the County Court. It has not resolved.
Stephen was charged with statutory perjury and dealt with in the Magistrates’ Court. She was convicted and received a CCO.
Outstanding matters
Between 3 March 2021 and 15 June 2021, it is alleged the applicant committed further family violence offences against his then partner, ‘KD’. He was arrested and interviewed on 8 July 2021, and released pending summons. At the time he filed an application for bail in this Court, he had not been charged. On 3 December 2021, the applicant then was charged with these matters (‘Claringbold matters’). The applicant was again charged on summons.
The applicant’s criminal history
The applicant has a lengthy criminal history in Victoria commencing in the Children’s Court. His adult criminal history commenced in 1999 and includes offences of burglary, theft, aggravated burglary, assaulting police, damaging property, escaping lawful custody, threats to kill, reckless conduct endangering serious injury, robbery, and numerous drug possession offences and driving offences. The applicant has three charges of fail to answer bail from 2002, 2006 and 2009.
The applicant received three intensive correction orders for offences including assaulting police, dangerous driving, theft, burglary and assault. He breached all intensive correction orders by further offending and non-compliance. The applicant received a fourth ICO, which he breached, and a suspended sentence, which he breached.
He was dealt with in 2018 for offences of causing injury, four charges of committing an indictable offence whilst on bail and possessing drugs of dependence. He received a combined term of imprisonment and a CCO. In December 2020 he was sentenced in the County Court on the first Monaghan matters, as outlined above. He was most recently dealt with in the Magistrates’ Court on 9 April 2021 for breaching the CCO he received in 2018. He received a further 12 month CCO.
The applicant also has interstate criminal prior convictions and outstanding warrants.
Between February 2009 and July 2016, the applicant was dealt with in various West Australian Magistrates’ Courts for offences of theft, burglary and assault. In 2010 he was dealt with in the Perth District Court for a number of offences including theft, assault and breach of bail, and received a term of imprisonment. There is one outstanding West Australian warrant for breach of bail.
In South Australia, the applicant has two very minor prior convictions for which he received modest fines. The applicant has an outstanding warrant in Queensland for failing to appear on charges of stealing and unauthorised dealing with shop goods, alleged to have been committed in March 2017. He has two outstanding warrants in the Northern Territory, both issued in 2017. He also has a criminal history in the Northern Territory, including breaching bail, for which he was fined, and escape from lawful custody, for which he received seven days gaol. He was dealt with in the Darwin Supreme Court for stealing, resist police and aggravated assault, and received a term of imprisonment.
He has a very minor prior conviction in NSW for shop theft, and three outstanding warrants in NSW which were issued in 2008 and 2009 for traffic offences and stealing.
The applicable test
There was considerable discussion and no agreement as to the applicable test.
The respondent’s position
The respondent submits the ‘exceptional circumstances’ test applies.
The respondent submits that the alleged offence is a Schedule 2 offence pursuant to Schedule 2, Clause 1(a), (b), (c) and/or (d) of the Bail Act 1977 (‘the Act’).
The applicant was charged and bailed on indictable matters in West Australia, being stealing and aggravated burglary. He failed to appear and a warrant issued for those two indictable charges, and for a summary offence of breach a community correction order. He was therefore ‘on bail for another indictable offence’ at the time of the alleged offence (Clause 1(a)).
The applicant was charged in Queensland on summons with shop steal, being an indictable offence. He did not attend court and a warrant issued on 24 May 2017. He was therefore ‘subject to a summons to answer a charge for another indictable offence’ at the time of the alleged offence (Clause 1(b)).
The applicant was also ‘at large awaiting trial for another indictable offence’ at the time of the alleged offence (Clause 1(c)). Whilst he was in a Victorian prison, he was however ‘at large’ with respect to the interstate matters the subject of the warrants, and therefore ‘at large awaiting trial for another indictable offence’. It was not made clear what trial he was awaiting.
Finally, the applicant was ‘otherwise serving a sentence for another indictable offence’ (Clause 1(d)). This is said to arise because whilst the applicant was on remand at the time of the alleged offence, he was later sentenced and his time on remand was reckoned as time already served under that sentence. He was therefore on remand but ‘technically’ serving a sentence at the time. The respondent abandoned the argument that the applicant was subject to a Community Correction Order, given that Order expired on 18 July 2019.
The respondent submits that having established the applicant was charged with a Schedule 2 offence, the exceptional circumstances test applies by virtue of s 4AA(2)(c)(i), (ii), (iii) and/or (v). That is, relying on s 4AA(2)(c)(i), the exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence ‘while the accused was on bail for any Schedule 1 or Schedule 2 offence’. A similar formula is used in ss 4AA(2)(c)(ii), (iii) and (v). In all those paragraphs, the accused must be charged on summons, at large awaiting trial or serving a sentence ‘for any Schedule 1 or Schedule 2 offence’. The respondent was unable to articulate how, in these circumstances, an interstate offence is a ‘Schedule 1 or Schedule 2 offence’.
The respondent concedes that if the test is exceptional circumstances, the Court may find exceptional circumstances exist, primarily due to delay.
The applicant’s position
At the commencement of the hearing, the applicant agreed with the respondent that he had to satisfy the ‘exceptional circumstances’ test.
After discussion, the applicant withdrew this concession. The applicant submitted that the alleged offence is not a Schedule 2 offence, and Clause 1 has no application. The applicant is therefore prima facie entitled to bail.
The applicant submits that once a warrant issues, an accused person is no longer on bail or subject to a summons. They have either failed to answer their bail, or failed to attend pursuant to a summons. At this stage, a warrant issues.
The applicant submits, in the alternative, that if the alleged offence is a Schedule 2 offence then the compelling reason test applies. However s 4AA cannot have any application here, as none of the interstate offences are ‘Schedule 1 or Schedule 2 offences’ as defined in the Act.
Analysis
The alleged offence for which the applicant seeks bail will only be a Schedule 2 offence if one or more of the paragraphs in Clause 1 have application. The offence is not otherwise a Schedule 2 offence, and for completeness, is not a Schedule 1 offence.
On the material I have, I do not conclude that at the time of the alleged offence, the applicant was ‘on bail for another indictable offence’. A person is bailed to attend court, usually to a specified date.[1] If an accused fails to answer their bail on the specified date, that grant of bail ends, unless it is extended in their absence. The prosecution then commonly make application for a warrant, and equally commonly a warrant issues. The bail does not continue. If an accused is apprehended in accordance with the warrant, the common course is they are brought before a court or bail justice, and either granted bail or remanded into custody pending the hearing of the matter.[2] If brought before a court, they may be granted bail or further remanded into custody.
[1]Although a person may be bailed to ‘a date to be fixed’.
[2]Alternatively, a warrant may be endorsed with conditions upon which the arrested person may be released on bail.
It follows, therefore, that the fact the applicant has an outstanding warrant issued in West Australia does not mean he was ‘on bail for another indictable offence’. I note that it was not submitted that ‘on bail for another indictable offence’ must mean on bail in Victoria for a Victorian indictable offence, and I do not deal with that question.
For similar reasons, I do not conclude that at the time of the alleged offence, the applicant was ‘subject to a summons to answer a charge for another indictable offence’. In the case of less serious offences, initiation is normally by way of charge and summons. The summons must be served on the accused. If the accused fails to attend at court in answer to a summons, the court may issue a warrant for the person’s arrest.[3] Once that occurs, the accused is no longer subject to a summons to answer a charge. The summons has lapsed. If the warrant is executed and the person arrested, then depending again on the terms of the warrant, the person may be granted bail or remanded into custody pending the hearing of the matter.
[3]Alternatively the court may, if it chooses, hear the charge in the accused’s absence if the charge is a summary offence, or adjourn the proceedings on any terms it sees fit.
The applicant was in custody at the time of the alleged offending. He was not ‘at large’. The words have a plain English meaning; to be ‘at large’ means to be at liberty, free, without restraint.[4] If a student, asked in a test to define ‘at large’, answered ‘in prison’, they would fail. The respondent’s argument that a prisoner locked in a Victorian prison is ‘at large’ with respect to any outstanding interstate matters is without merit.
[4]The Oxford English Dictionary, 2nd Ed, Vol VIII.
The meaning of “serving a sentence” has been considered previously. In Application for Bail by Allen Matemberere,[5] Weinberg JA held that a person subject to an adjourned undertaking is relevantly “serving a sentence”. His Honour referred to an earlier decision of Kaye J, who held a person subject to a suspended sentence is serving or undergoing sentence.[6]
[5][2018] VSC 762.
[6]WBM v Chief Commissioner of Police (2010) 27 VR 469.
The obvious difference between those decisions and this matter is that the person had been sentenced. Here, the respondent was on remand. He was not ‘otherwise serving a sentence for another indictable offence’. The crediting of pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 does not retrospectively mean that when a person was on remand, they were actually serving a sentence. A Victorian sentence commences on the day it is imposed. In a different context, the High Court considered the prohibition on a person “serving a sentence” from voting.[7] As Gleeson CJ succinctly stated:
Not all persons in prison are serving sentences of imprisonment. Some are awaiting trial.[8]
[7]Roach v Electoral Commission (2007) 233 CLR 162.
[8]Ibid at p 175, [9].
It follows from the above that none of Schedule 2 Clause 1(a), (b),(c) or (d) have any application here. The alleged offence is not a Schedule 2 offence. Having made that determination, it is not necessary to go further and consider s 4AA of the Act. The applicant is prima facie entitled to bail.
The legislation
The applicant must be granted bail unless the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk. The respondent bears the burden of proving both the existence of the risk, and that the risk is unacceptable.[9]
[9]Section 4E(2).
I am required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act.
In applying the unacceptable risk test, I must take into account the surrounding circumstances in s 3AAA of the Act, and consider whether there are any conditions of bail that may be imposed to mitigate risk so that it is not an unacceptable risk.
Pursuant to s 5AAAA(1) I must make inquiries as to whether there is in force a family violence intervention order, notice or interstate equivalent. I have been informed as follows:
· The applicant is the subject of an intervention order protecting the complainant and her child in the matter where Claringbold is the informant. That order expires on 22 July 2022.
· The applicant is the subject of a second intervention order protecting ‘SR’ and ‘JR’. That order expires on 26 July 2022. The applicant is also the subject of a Queensland intervention order, issued on 24 November 2017 and due to expire on 24 November 2022.
The offence I am dealing with is not a ‘family violence offence’ as defined in the Act, therefore s 5AAAA(2) is not applicable. However, that does not mean the fact of the intervention orders is irrelevant. The risk of family violence must be considered when considering the question of unacceptable risk.
The applicant identifies as Aboriginal. I must therefore have regard to the matters contained in s 3A of the Act.
The applicant[10]
[10]I have taken most of the following from the December 2020 sentence of Judge Mullaly, as on the application, very little was said about the applicant’s personal history.
The applicant is 40 years old. He was born in West Australia and raised in Victoria. As a child, he was strictly and often violently punished by his father for misbehaviour. His parents tried to control him with discipline and medication, but gave up when he was 13 years old. The applicant was then placed into state residential care, where he deteriorated. He commenced using all manner of drugs and binge drinking, and reports being sexually abused by workers whilst in residential care. The applicant was regularly in trouble which is reflected in his criminal history.
The applicant has a long-standing and serious polysubstance abuse problem. He moved between States and continued to offend. He has five children to four different partners, and little if anything to do with his children. One of his daughters lives in Morwell and has recently had a child. He currently has a potential opportunity to re-engage with her, if he complies with his CCO and remains offence free.
The applicant did successfully complete an apprenticeship as a boilermaker when he was aged around 24, which enabled him to gain well-paying work for a period. He was working as a welder prior to his remand and has casual employment available if released.
The respondent’s evidence
The Informant Senior Constable Monaghan gave evidence that she has concerns about the accused being released from custody, as he was released from custody in December 2020, and re-offended in March 2021 by way of ‘serious family violence’. He has not completed any drug testing as required by his CCO, and he has failed to attend a number of appointments. She arranged for officers to attend his bail address but he was not present. She does not think any imposed condition would stop the accused re-offending. She gave evidence about the outstanding warrants to which I have already referred.
She agreed she charged the applicant on summons and did not oppose bail or the subsequent variation, but said at that time she was unaware of the Claringbold matters. She said when police attended to check if the applicant was at the residential address, it was during the afternoon and she does not know if the applicant was working at the time. She was unaware of the proposal that the applicant reside with Ms Felicity Wiseman, and could not comment on whether police had spoken with Ms Wiseman. She could not comment on whether the applicant was interviewed on 8 July and released pending summons on the Claringbold matters, because she has no information about that matter. She was unaware of when the applicant was charged with the Claringbold matters, and unaware whether he was charged on summons. She said she did not know the ‘specifics’ of the CCO and she would defer to Community Corrections as to his compliance with the CCO.
Detective Claringbold gave evidence. She said that the applicant was arrested on 8 July and interviewed by other police officers, and released pending summons. She said there has been an intervention order in place since 26 July 2021 protecting ‘KD’ and her child, and there are no allegations that the applicant has breached that order. She charged the applicant on summons on 3 December 2021.
Ms Bremner from Corrections said she is familiar with the applicant’s CCO. His matter was given to her on 26 November after his Supervisor resigned. She said they are currently waiting for the Claringbold matters to resolve before they commence breach proceedings, but depending on the outcome of the bail application, they may proceed by way of a non-compliance contravention. She said if the applicant is released on bail, he could re-engage with his CCO, however, should his risk within the community escalate an immediate request to proceed with contravention will be initiated. She clarified that breach proceedings have not yet been authorised. The applicant has the opportunity to reconnect with Corrections, but the onus is on him to do so.
The applicant’s evidence
Felicity Wiseman gave evidence that she is in a new relationship with the applicant which commenced about four or five weeks prior to the applicant going into custody on 26 October. She has had daily contact with him in custody. She said the applicant can reside at her address, and the police attended a couple of days ago and spoke with her about the applicant. She said if the applicant committed any offences, she would call the police straight away. She would not tolerate it and does not want anything like that in her life. In cross-examination she said her household is very strict, and she is opposed to drug taking. She would be able to recognise if the applicant was intoxicated, and if that occurred she would ring the police immediately.
The applicant’s contentions
The applicant submits the prosecution case is weak, and at its highest suggests only minimal involvement by the applicant in the offending. The applicant does not appear to play a central role in the offending, there is only one call, and establishing guilt beyond reasonable doubt will be a ‘difficult task for the Crown’.
The applicant’s matter is listed on 28 January 2022 in the County Court for further case management. It is very unlikely the applicant’s trial will be reached before 2023, resulting in a period of 18 months on remand which is an ‘excessive delay’. Moreover, the applicant’s lawyers only recently learned that Stephen will be called as a witness. If Stephen is to be a prosecution witness and her evidence ruled admissible, this will mean the applicant must seek new legal representation, leading to further delay.
It is conceded the alleged offending is serious and, if convicted, the applicant faces a term of imprisonment. However the time spent on remand could realistically exceed at least the non-parole period of any sentence imposed.
The ongoing COVID-19 pandemic means conditions on remand continue to be more onerous than usual. Substantial restrictions are placed on prisoners, and to date the applicant has been unable to receive personal visits. This has made, and will continue to make, his time in custody more difficult.
The applicant remains on a CCO and has engaged with Corrections. He sustained a long period of compliance for most of 2021, although it is conceded his recent performance was ‘less than positive’. He remains able and willing to continue with his CCO.
The applicant has been charged with further offending since his most recent release onto a CCO, however the applicant was arrested and released pending summons in July 2021 and nothing further occurred until 3 December 2021, when the applicant was charged with the Claringbold matters on summons. The applicant denies the alleged further offending. There has been an intervention order in place since 26 July 2021 which has not been breached.
The applicant has the support of his partner and can reside with her. He also has immediate casual employment available to him. He suffers from anxiety and depression but is currently prescribed, and taking, Zoloft.
The applicant concedes his history is lengthy and relevant, but points to the procedural history of the offence the subject of this application. He submits he has attended all court hearings, including travelling to the Melbourne County Court for the bail revocation hearing.
The applicant submits there is insufficient material before the court to find that the applicant is an unacceptable risk in the ways alleged. There are conditions available which will mitigate risk, including a condition that the applicant comply with his CCO.
The respondent’s contentions
The respondent submits the applicant is an unacceptable risk in all the ways set out in s 4E. That is, there is 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 in any matter; or fail to surrender into custody in accordance with the conditions of bail.
The respondent submits the prosecution case is strong. The telephone call is recorded, and Stephen will be a prosecution witness in the trial.
The respondent submits the primary risk is that of the applicant reoffending whilst on bail. He has an appalling history with failures to comply with court orders, and multiple outstanding warrants. He has a relevant prior conviction for attempting to pervert the course of justice. His relationship with Ms Wiseman is very new and not a sufficiently protective factor.
The respondent concedes that based on the evidence, the applicant is able to re-engage with Corrections and his CCO. However, whilst he might have that opportunity, he has not complied with the order previously and any compliance has been very sporadic. He has never, for example, attended for urinalysis.
The respondent concedes delay is a relevant factor, but does not think a trial at the end of 2023 is realistic. The respondent submits at trial at the end of 2022 might be more realistic, although it is difficult to predict.
The respondent concedes that s 3A has application as the applicant is Aboriginal.
The respondent submits that the applicant has a history of avoiding police warrants and avoiding police. There is a real risk the applicant will become uncontactable, and will not appear to answer his bail.
Analysis
The question here is whether the applicant, who is presumed innocent and prima facie entitled to bail, should be kept in detention by reason of unacceptable risk.
With respect to the outstanding Claringbold matters, which are not the subject of this bail application, there has been an intervention order in place since July 2021, protecting the complainant and her child. It is not alleged that the applicant has breached the order, in circumstances where the applicant was in the community until bail was revoked.
I acknowledge the applicant contests the charge and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. The alleged offence has serious aspects – it was planned, and was intended to deceive a court – but did not involve threats or violence.
In my view, the applicant’s characterisation of the prosecution case as ‘weak’ is inapt. The applicant was the intended beneficiary of the proposed false evidence. The single telephone call between the applicant and Stephen is capable of establishing the applicant’s involvement in the crime. Stephen goes on to swear a false affidavit and provide it to the applicant’s solicitors, who tendered it on a County Court bail application. I would describe the prosecution case as strong.
The respondent alleges there is an unacceptable risk that, if released, the applicant would interfere with a witness or otherwise obstruct the course of justice. It is for the respondent to discharge the onus of satisfying the Court of that fact. There is no evidence, for example, that the applicant has sought to contact Stephen since he was released in December 2020.[11] The respondent relies on the applicant’s prior conviction, although I note that the applicant was in custody at both that time and the time of this alleged offence.
[11]I note he could have done so without breaching bail, as there was no condition preventing contact with co-accused or prosecution witnesses.
The applicant has a limited history of failing to answer bail in Victoria. With respect to this alleged offence, he has answered his bail and attended court when required. He travelled to Melbourne to attend the revocation hearing. Whilst there is some risk the applicant will fail to answer his bail, I do not regard that risk as unacceptable.
It is well established that delay before trial is an important consideration to be weighed in the balance when considering the unacceptable risk test.[12] In Mokbel v DPP (No 3)[13] Kellam J stated:
The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.[14]
[12]Robinson v Q [2015] VSCA 161 at [49].
[13][2002] VSC 393.
[14]Ibid at [10].
The applicant was committed to stand trial on 31 May 2021. He has yet to be given a trial date. The delay faced by the applicant until trial is likely 18 months and may be longer. His trial may perhaps be reached in late 2022 or not until 2023. This is a very lengthy delay combined with the uncertainty of not knowing when the matter will conclude.
The uncertainty accompanying the delay makes it difficult to assess whether the applicant’s time on remand would exceed any ultimate sentence, but it may. The respondent argued that any delay in this matter has to be “tempered with considerations as to the total effective sentence the applicant might be likely to receive taking into account all his outstanding matters”, namely the alleged offence, the Claringbold matters and the “high likelihood” of being resentenced (presumably to imprisonment) if and when breached on his CCO. I disagree. Pursuant to s 3AAA(1)(l) I must take into account the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged, meaning the charged offence for which he seeks bail. It would not be appropriate, in the circumstances here, to have regard to possible sentences on other outstanding matters, or possible breach proceedings. Further, even in cases where the applicant’s time on remand may not – if he is ultimately convicted – exceed the term of his sentence, that does not mean that a lengthy and uncertain delay between charge and trial is not significant. And of course, the applicant may be acquitted of the charge.
I accept conditions in prison have been more onerous as a result of the COVID-19 pandemic, although restrictions are starting to ease, at least for vaccinated prisoners and visitors. Nonetheless it remains a more difficult time to be on remand due to the level of uncertainty and restrictions caused by the pandemic.
The applicant correctly concedes his history is ‘appalling’. He has a history of breaching court orders, including ICOs, CCOs, an intervention order and bail. He has seven outstanding warrants spread across four jurisdictions. The risk of the applicant re-offending is real, but a real risk is not necessarily an unacceptable risk.
The applicant said nothing about s 3A. Other than being cognisant of the overrepresentation of Aboriginal persons in custody, and the need to avoid compounding those incarceration rates, unless there is good cause to do so, I have no material to consider.[15]
[15]HA (a pseudonym) The Queen [2021] VSCA 64 at [59], citing Re Chafer-Smith [2014] VSC 51 at [27] per T Forrest J and noting that bail was refused in Re Chafer-Smith as the applicant was an unacceptable risk of re-offending and endangering the safety and welfare of the public.
The applicant’s conduct on his CCO is set out in the memorandum and report of Ms Scott. In the memorandum, Ms Scott states the applicant has attended most required supervision appointments. He is not always forthcoming and has limited insight into his risks of reoffending, although engages more openly when discussing topics he wishes to discuss. He completed a standard ‘episode’ of drug counselling and briefly continued on a voluntary basis. He has failed to attend any drug testing and other appointments, and makes excuses. He has resisted programs designed to reduce reoffending, although did commence a program online on 19 October. Significantly, Ms Bremner said Corrections will continue to work with the applicant if he re-engages.
The applicant has some pro-social supports in the community. Ms Wiseman is one, albeit that is a very new relationship. He is working, attending his GP and taking his medication. There is no evidence he has returned to drug use. He has engaged to some degree with his CCO, and is willing to re-engage. A condition that he comply with his CCO can be made, meaning if he fails to comply, it will not be necessary to wait for Corrections to commence breach proceedings, which can take some time. The applicant will have breached a conduct condition of bail and the informant may procced to charge him.
I have reached the conclusion that in all the circumstance, particularly the lengthy and uncertain delay before trial, that the risk presented by the applicant is not an unacceptable risk if he is released on bail with conditions.
Conclusion
The applicant is prima facie entitled to bail, and it has not been shown that the applicant is an unacceptable risk of endangering the safety or welfare of any person, committing further offences whilst on bail, interfering with a witness or otherwise obstructing the course of justice, or failing to surrender into custody in accordance with the conditions of bail.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
(a)He attend the Melbourne County Court of Victoria on 28 January 2022 at 9:00am and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b)He reside at 13 Tulloch Street, Morwell in Victoria (‘the residence’), and notify the informant within 48 hours prior to any proposed change of address.
(c)He report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Morwell, or his or her nominee, between the hours of 6:00am and 8:00pm.
(d)He not leave the State of Victoria.
(e)He attend Morwell Community Correctional Services by 4:00pm on Monday 20 December 2021, and thereafter, comply with all lawful directions of the Office of Corrections pursuant to CCO Case Number: CR-19-02482.
(f)He not possess or consume any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) unless lawfully prescribed for treatment, and obey any prescribed dose.
(g)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(h)He not contact, directly or indirectly, including electronically, the co-accused, namely John Verdesoto.
(i)He not contact, directly or indirectly, including electronically, Tracey Stephen.
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