Re Kelly
[2022] VSC 232
•12 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0087
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by Joshua KELLY |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 May 2022 |
DATE OF JUDGMENT: | 12 May 2022 |
CASE MAY BE CITED AS: | Re Kelly |
MEDIUM NEUTRAL CITATION: | [2022] VSC 232 |
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CRIMINAL LAW – Bail – Contraventions of family violence intervention order, breaches of bail, driving whilst disqualified and other offences – Applicant subject to a number of grants of bail at the time – Alleged offending flagrant and repeated – 39 year old applicant with relevant prior convictions – Poor history of compliance with bail and other orders of courts – Exceptional circumstances test – Bail not opposed by respondent – A matter for Court to determine if exceptional circumstances established – Likely sentence may be exceeded by time on remand - Substantial risk posed by applicant of reoffending – Exceptional circumstances not established - Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Barreiro | Gallant Lawyers |
| For the Respondent | Mr J Kibel, solicitor advocate | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applies for bail on a 24 charges laid by Detective Senior Constable Benjamin Ryan on 14 February 2022 (‘Second Ryan matter’).
The charges are as follows:
· Contravene family violence intervention order (‘FVIO’) (four charges).
· Persistent contravention of FVIO.
· Contravene a conduct condition of bail (12 charges).
· Commit an indictable offence whilst on bail (two charges).
· Drive whilst disqualified (two charges).
· Use an unregistered motor vehicle (two charges).
· Possess a drug of dependence.
The charges were laid in the context of numerous charges already faced by the applicant arising from a number of separate incidents.
The parties are in agreement that the Court must refuse bail unless the applicant satisfies me that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of Schedule 2 offences under the Bail Act 1977 (‘the Act’) while subject to a number of undertakings of bail for charges including Schedule 2 offences.[1]
[1]Sections 4AA(2) and 4A(1A).
Pending charges at time of current alleged offending
Leading Senior Constable Rachelle Maher matters (‘Maher matters’)
The applicant was charged by summons on 14 October 2020 with a number of offences allegedly committed on 15 August 2020 when he was intercepted by police driving in Wangaratta. He was a disqualified driver at the time. He provided an oral fluid sample which was found to be positive to methylamphetamine (‘MA’). When asked his reasons for drug driving,[2] the applicant said, ‘I don’t have one’. As for his reason for driving whilst disqualified, he stated that he had picked his car up from around the corner and was taking it home for repairs. The applicant’s vehicle was impounded for 30 days pursuant to the Road Safety Act provision. The applicant was bailed by police on the above matters on 20 April 2021.
[2]Driving a motor vehicle while having more than the prescribed concentration of a drug in his oral fluid, pursuant to s 49(1)(bb) of the Road Safety Act 1986
.
The matters will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to drug driving and driving whilst disqualified.
Senior Constable Shane Hughes matters (‘Hughes matters’)
On 20 October 2020, the applicant was observed by police to exit his workplace in Benalla in a white Mazda utility. He was intercepted driving north on the Hume Freeway at Winton. He was found to have an open stubby of beer, which he admitted having been drinking while driving. He underwent an oral fluid test which was positive to MA. He was disqualified at the time. He was charged by summons with driving whilst disqualified, drug driving and other offences.
The matters will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to drug driving and driving whilst disqualified.
Senior Constable Graeme Weldon matters (‘Weldon matters’)
On 9 December 2020, the applicant was intercepted by police while driving in Wangaratta. He underwent an oral fluid test which was positive to MA. He was a disqualified driver at the time. He was charged by summons on 5 May 2021.
The matters will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to drug driving and driving whilst disqualified.
First Detective Senior Constable James Nelson matters (‘First Nelson matters’)
On 4 June 2021, police executed a search warrant at the applicant’s home in Wangaratta. They located 12 cannabis plants in a hydroponic set-up, some MA, and three imitation firearms. They sought access to the applicant’s mobile phone, which he refused. The applicant was charged with offences on 4 June 2021 and remanded in custody. He was released on bail on 7 June 2021 with conditions including a curfew and that he not drive a motor vehicle.
The matters will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to cultivating cannabis, possession of MA, possession of imitation firearms, and failing to comply with a direction to assist.
First Constable Timothy Jones matter (‘Jones matter’)
On 3 March 2021, a final family violence intervention order (‘FVIO’) was made against the applicant to protect his partner LH. On 11 June 2021, the applicant attended LH’s home. During a dispute between them, he took her phone and refused to return it. A scuffle occurred in which the applicant sustained scratch marks to the head and neck. LH sustained no injuries. The applicant allegedly walked away with the phone and went through the messages. He then returned the phone to LH. The applicant was arrested. He was charged by summons on 6 September 2021 with contravening a FVIO.
Constable Benjamin Bell matters (‘Bell matters’)
On 15 November 2021, the applicant was intercepted by police in Wangaratta driving his white Mazda utility. He admitted he did not hold a licence and database enquiries indicated he had previously been a disqualified driver, and that his motor vehicle was not registered. He was released pending the issue of a summons, and was charged by summons on 3 March 2022 with unlicensed driving and using an unregistered motor vehicle.
Constable Aidan Hogan matter (‘Hogan matter’)
On 22 November 2021, the applicant was bailed from Wangaratta Magistrates’ Court with conditions including a curfew condition requiring him to be at his residence between the hours of 10 pm and 5 am. On Sunday 28 November 2021, he was observed by police in Wangaratta at 2.27 am to be riding an e-bike in Phillipson Street with no lights and no helmet. He was stopped by police, who made enquiries and confirmed the existence of the bail with the curfew condition. Police spoke to the applicant who confirmed his awareness of being on bail, but claimed to be unaware of the conditions of bail. When asked his reason for breaching the curfew condition, he said, ‘It’s my birthday mate. I wanted to have a few drinks’. The applicant was cautioned by police and directed to return home, having been informed he may receive a summons. On 3 January 2022, he was charged by summons with contravening a conduct condition of bail.
The matter will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to contravening a conduct condition of bail.
Second Detective Senior Constable James Nelson matter (‘Second Nelson matter’)
On 24 January 2022, the applicant was stopped by police whilst driving in Wangaratta. He was a disqualified driver at the time. He was charged by summons with driving whilst disqualified on 25 January 2022.
The matter will proceed as a plea of guilty at Wangaratta Magistrates’ Court on 7 July 2022 to driving whilst disqualified.
First Detective Senior Constable Benjamin Ryan matters (First Ryan matters’)
Between December 2021 and January 2022, the applicant and LH were in communication via telephone calls and text messages, in contravention of a full non-contact FVIO in force at the time. Call charge records showed them to be in contact on a daily basis. On 7 February 2022, police located the applicant at LH’s address, and he was arrested. He made a no comment interview. He was charged on 7 February 2022 with contravening a FVIO (5 charges), persistent contravention of a FVIO, and committing an indictable offence whilst on bail.
First Constable Joshua Stafford matters (‘Stafford matters’)
On 27 January 2022, police observed the applicant’s vehicle parked outside LH’s address. Police spoke to LH who informed them that the applicant had been at the address working on his car. She was not willing to provide a statement to police. Police returned an hour later and observed the applicant reversing his car out of the driveway. He was a disqualified driver. Upon noticing police, the applicant drove forward into the driveway then ran away from the police into the Wangaratta Showgrounds where he was apprehended. He denied having driven the vehicle or contravened the FVIO. When asked to indicate who had been driving the vehicle, he said, ‘Santa Clause’. He was charged with contravening a FVIO, driving whilst disqualified, and contravening a conduct condition of bail.
On 7 February 2022, the applicant was charged with the first Ryan matters and the Stafford matters and remanded in custody. On 8 February 2022, he appeared at Wangaratta Magistrates’ Court and was released on bail by her Honour Magistrate Altman on conditions including a curfew between 10.00pm and 5.00am, that he comply with the FVIO which was in place in respect of LH and that he not drive a motor vehicle unless licensed to do so.
Alleged offending (Second Ryan matters)
On 12 February 2022 at 1.40pm, Senior Constable Thomas Lonsdale observed the applicant’s car parked discretely in a dirt car park in close proximity to LH’s residence. Approximately five minutes later, he took photographs of the applicant walking from LH’s address. The applicant retrieved an item from his car and then returned to the address.
Later that day, the same police officer took photographs of the applicant and LH walking from her address together, and entering the applicant’s car. LH drove the car off.
The police officer again observed the applicant leaving the address around 6.00pm, and filmed the applicant driving his car away. At the time, he was disqualified from driving and the car’s registration was suspended.
At 1:30am on 13 February 2022, police attended the applicant’s home address to conduct a bail compliance check. The applicant’s sister answered the door and stated that he was not there and she did not want to get involved. Approximately 1 hour later, the applicant contacted the police and advised that he had been sleeping in a caravan at the rear of the property.
On 14 February 2022 at 11.50am, police observed the applicant driving his vehicle on Greta Road, Wangaratta. They intercepted the vehicle and arrested the applicant for contravening a conduct condition of bail. Police searched the car and located a small quantity of MA in his wallet. When the drugs were shown to the applicant, he stated, ‘I forgot that was in there’. The applicant’s vehicle was impounded.
The applicant provided mostly no comment in his police interview, although he denied being at LH’s address on 12 February 2022 and stated he was with a friend on that date. He described the allegation that he had been there as ‘ridiculous’ and ‘a joke’. In relation to his licence status, he said, ‘I’m not sure what my licence is but I’m not allowed to drive. I’m not sure if the car is registered’. In relation to the charge of possessing a drug of dependence, he responded ‘No comment’.
Personal circumstances
The following brief summary of the applicant’s personal circumstances is largely based upon the contents of the report dated 1 April 2022 from Lisa Jackson, psychologist, exhibited to the affidavit in support.
The applicant is 39 years old. He was raised in Wangaratta and reports an unremarkable childhood. His father died in 2010 which deeply affected the applicant. He remains close with his mother. The applicant has a daughter with a previous partner.
The applicant completed a plumbing apprenticeship, following which he travelled around Australia working and playing football. The applicant reports having worked as a plumber with stable work until he developed substance use issues. He was employed prior to his remand.
In 2001, he witnessed a friend die in a road accident, and the following year he was involved in attempting to assist someone who had been fatally injured in a car accident. The applicant returned to Victoria after these events.
The applicant was the victim of a physical assault in 2019 resulting in significant injuries. He reports ongoing cognitive issues. The applicant subsequently commenced a relationship with LH, but states her father tried to interfere in their relationship.
The applicant commenced using cannabis on a daily basis from 2016, and MA at least five days a week from about 2018. The applicant reported to Ms Jackson that his drug use ceased in 2019 following the assault, although he has been found since that time to have MA in his system while driving and during the course of his community correction order (‘CCO’) in 2020.
Criminal history
The applicant’s criminal history commenced when he was dealt with by the Children’s Court for assault in company in 2000. There were then two appearances in the Magistrates’ Court for assault and street offences in 2001. After a long gap, the history resumed in January 2018. The applicant was fined for assault, driving an unregistered motor vehicle and driving at a speed dangerous.
On 20 February 2019, he received a CCO for driving whilst disqualified (2 charges), failing an oral fluid test, possessing MA and committing an indictable offence whilst on bail. He breached the CCO which was cancelled on 24 January 2020.
On 3 September 2019, the applicant was dealt with again for failing an oral fluid test.
On 24 January 2020, he was convicted of driving whilst disqualified, persistent contravention of a FVIO, committing an indictable offence whilst on bail, handling stolen goods, and other offences. He was placed on a 9 month CCO with conditions as to assessment and treatment for drug abuse and mental health issues.
The applicant again breached this CCO. Breach proceedings have yet to be heard. The breach report dated 10 March 2021 makes for somewhat discouraging reading. By way of background, reference was made to the previous CCO of the applicant which was cancelled due to breaches of conditions and further offending. As for the most recent CCO, the applicant failed to attend his initial appointment. When he did attend, throughout his supervision he was found to continue to deny and minimise his offending. He stated that he had been aware of the FVIO but found it inconvenient. He was reluctant to address his views regarding his offending. At times he failed to engage in a satisfactory manner and displayed poor compliance. He received a formal warning on 28 July 2020. He was advised that any further failures to comply would result in his being breached. Whilst the applicant did take part in drug counselling, the report indicates that he continued to use substances throughout the order. On five occasions, he failed to attend for urine screens as ordered. He did provide two urine screens, both being positive to MA. Whilst referred for psychological counselling pursuant to CISP, he never engaged in any treatment or counselling to address his mental health issues. On 14 October 2020, the applicant was offered the option of completing a one-day Zoom offending behaviour program. He declined to engage, citing work commitments and short notice. He was reminded that it was a requirement of his order to complete the program, but he refused to take part. In conclusion, the author of the report described the applicant’s compliance during the CCO as ‘less than satisfactory’, noting he had accrued no fewer than 12 unacceptable absences.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
As already indicated, the exceptional circumstances test applies in this case. The applicant bears the burden in respect of that test. In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J[4] in DPP v Muhaidat[5] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[6]
[4]As he then was.
[5][2004] VSC 17 (‘Muhaidat’).
[6]Ibid [13]; See also Re Sipser [2019] VSC 362 [43]; Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81 [39] (‘Re Reker’).
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]
[7]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The application
The affidavit material filed by the respondent indicated opposition to a grant of bail on the basis that unacceptable risk would not be established, and that in any event, the applicant would pose an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, or interfering with a witness. The informant’s report exhibited to the affidavit expanded on the reasons for opposition to bail.
At the commencement of the application, Mr Kibel who appeared for the respondent, indicated that having reviewed the written submissions for the applicant that morning, he would now concede that in the circumstances it would be open to the Court to find that exceptional circumstances exist. The change in position was said to be based on a consideration of all of the factors, but primarily due to an acceptance of the applicant’s contention that the period spent on remand may exceed the eventual sentence passed. On the matter of unacceptable risk, Mr Kibel conceded that it would be open to the Court to find that the risk posed could be ameliorated to an acceptable level by the conditions proposed, including a CISP condition. When asked whether bail was still opposed, Mr Kibel indicated that it was not, but, ‘the basis is still a matter for the Court to accept what we concede as being correct’.[8]
[8]Transcript 4.
Mr Barreiro for the applicant acknowledged what he described as the ‘generous concessions’ of Mr Kibel, but conceded it was still a matter for me whether I find that there are exceptional circumstances.
The evidence
The applicant gave sworn evidence during the application. When asked the status of his relationship with LH, he indicated that they have decided that it would best for them to be just friends, and that they would have no contact unless there was a variation in the FVIO. When asked what would be different now compared with previously when he has continued to have contact with LH in spite of bail conditions prohibiting this, the applicant said that now they are not in a relationship, and he has his daughter to worry and think about. He cannot afford to go back to gaol, and cannot go back into a relationship which is no good for him.
The applicant described his time in custody as probably the hardest three months of his life. He has learnt a lesson, he said. He put himself in this position by driving when disqualified from doing so. He freely admitted such offending, but claimed it was only ever to get to work.
As for occasions on which he had in the past failed to attend at court as required, the applicant claimed that he has a poor memory as a result of the past assault upon him and forgot to attend.
As to why he had failed to comply with the most recent CCO he had received, the applicant claimed that he had been assigned five different corrections officers, each of them telling him different things. He did all that was required of him, so he claimed, until the last thing he was asked to do which involved a half-day course. He claimed that he told the officer that he had some machinery booked for a work job which he could not cancel, and asked for the requirement to be delayed. He was told it could not be, and he told the authorities that he would not attend. He claimed that he was breached on the order solely as a result of that failure to attend.
The applicant stated that if he was released on bail on conditions, he would consider the court orders to be a priority over anything else. There would be no chance he would breach bail. He did not ever want to see a gaol cell again in his life.
In keeping with the position Mr Kibel had announced to the Court, Mr Kibel did not challenge any of the contentions of the applicant in any real way. During cross-examination, the applicant acknowledged that he had been driving whilst disqualified in Wangaratta. He would no longer do so, and indicated it would be inevitable he would be seen by the police if he did. He claimed that when he drove, it was principally in connection with work. When someone called in sick, for example, he would drive to work that day, which he described as a ‘silly mistake’.[9]
[9]Ibid 13.
In respect of the FVIO, the applicant claimed not to have been aware of it until ‘not long before I ended up in here’.[10]
[10]Ibid 13.
As for the occasion on which Magistrate Altman had released him on bail, the applicant acknowledged that she had told him that if he continued offending, it would leave the court with little choice but to remand him in custody.
Applicant’s submissions
Mr Barreiro relied on a combination of matters set out in his written and oral submissions in support of the existence of exceptional circumstances that justify the grant of bail. They were as follows:
a) The age and limited criminal history of the applicant. He is 39 and his criminal history ‘commenced in earnest in 2018’[11], in the context of his life, to a large degree, having fallen apart following the assault upon him in. In spite of his criminal history, he has never been imprisoned before.
[11]Defence outline [11].
b) The relative lack of seriousness of the offending and likely sentence. No violence is alleged in the contraventions of a FVIO. The order was taken out against the complainant’s wishes and she has expressed a clear desire to have the order varied to enable contact with the applicant. Breaches in such circumstances would ordinarily be dealt with by way of a CCO, potentially in combination with ‘time served’. As for the driving offences, Mr Barreiro submitted that ‘it takes a lot in the Magistrates’ Court for someone to be gaoled purely for driving while disqualified’.[12] Mr Barreiro submitted that there is a real possibility that the applicant will not receive a gaol sentence at all, or that if he does, it will only be a small one. Mr Barreiro highlighted this fact as an important one where exceptional circumstances and unacceptable risk are concerned.
[12]Transcript 21.
c) Delay. Mr Barreiro submitted that the 82 days already spent in custody by the applicant at the time of the hearing is a significant period, and the contested hearing would not necessarily proceed this year. The applicant faces the prospect of spending a year on remand. Given the nature of his offending, it is highly unlikely that the applicant will be required to serve a term of imprisonment exceeding the time already spent on remand, not to mention the time he would spend on remand pending a contested hearing. It could be said to amount to preventative detention for the applicant to be detained in custody in those circumstances.
d) The time he has now been in custody has been a salutary lesson for the applicant. He now fully understands the consequences of breaching court orders.
e) Substantial family and other supports in the community. The applicant would live with his mother in her home, which would be of great support to him.
f) The availability of employment to keep him busy.
g) CISP support. The applicant has been assessed by the Court Integrated Services Program Remand Outreach Program (CROP) as recommended for case management. The report dated 3 May 2022 was relied upon. In the report, an initial treatment and support plan is outlined, including attendance at a clinic for the purpose of the preparation of a Mental Health Care Plan, an assessment for an acquired brain injury, and referral for counselling from the Men’s Referral Service in respect of men’s behaviour change.
h) The inevitability of the applicant being detected if he chose to drive. It was pointed out by Mr Barreiro that the applicant is so well known in the local community that the chance of him getting away with driving for any significant period would be slim.
i) The availability of stringent conditions to reduce any risk posed by the applicant. When asked about the particular risk of the applicant driving whilst disqualified and with MA in his system, Mr Barreiro submitted that at the time of the recent remand, the applicant was not using drugs. There have been no recent instances of drug driving. The matters concerning Maher, Hughes and Weldon ‘are considerably dated’.[13]
j) The lack of opposition by the respondent to a grant of bail. This matter was relied upon implicitly by Mr Barreiro whilst not specifically addressed.
[13]Ibid 26.
On the matter of risk, it was submitted on behalf of the applicant that any risk posed by him could be ameliorated to an acceptable level by the imposition of stringent conditions of bail.
Respondent’s submissions
Mr Kibel conceded that breaches of bail by the applicant would be more readily detected than usual in light of his geographical location and the knowledge police have of him. He also conceded that the family violence offending alleged against the applicant is at the lower end of seriousness. Overall, the offending with which he is charged, if established, would result in no more than a relatively short term of imprisonment. He submitted that the prospect of a further CCO should not be discounted, notwithstanding the applicant’s poor compliance with the previous CCO.
Analysis
As indicated earlier, Mr Kibel conceded that in the circumstances of this case, it would be open to the Court to find that exceptional circumstances exist. That fact, of course does not absolve me of the responsibility of determining whether the applicant has discharged the heavy onus resting on him of satisfying me of the existence of exceptional circumstances. As the authorities make clear, the threshold is a high one. It is for the Court to decide whether that threshold has been surpassed.
In considering the question of whether the applicant has discharged the onus resting on him of proving that exceptional circumstances exist that justify the grant of bail, I am of course required to have regard to the surrounding circumstances, as set out in the non-exhaustive list of matters in s 3AAA(1) of the Act.
I turn, now, to the first of these. Whilst I acknowledge that the contraventions of the FVIO charged against the applicant are by no means at the more serious end of such offending, these are repeated and flagrant contraventions of conditions the applicant knew full well applied to him, and should not be disregarded, in circumstances where he had a number of prior convictions for intervention order contraventions, and had, within a matter of days before his alleged offending, been reminded of the need to comply with the FVIO and conditions of bail imposed on 8 February 2022. As for his driving whilst disqualified, it is alleged that the applicant took steps to conceal his driving. He had numerous prior convictions for driving whilst disqualified, and undoubtedly knew that a term of imprisonment would be a possible if not the likely outcome of further offending, and yet, as is alleged, thumbed his nose at the authorities. In my view, the overall offending was of a reasonable degree of seriousness. I note in this regard that the maximum penalty for persistent contravention of a FVIO is five years’ imprisonment, and that for driving whilst disqualified is two years’ imprisonment.
Turning to the strength of the prosecution case, it was not asserted on behalf of the applicant that the case is a weak one. Rightly so. The case appears to be quite a strong one.
The criminal history of the applicant is much to his disadvantage in this application. He has accrued numerous convictions for relevant charges including three for driving whilst disqualified, two for failing an oral fluid test, and two for committing an indictable offence whilst on bail, and convictions for contravening, and in one case, persistently contravening, a FVIO. He has been given the opportunity, on two occasions, of being supervised in the community on a CCO. Each time, he has comprehensively breached the requirements of those dispositions.
The appearance seems unfortunately to be of a person who has shown a lack of respect for the law, and the orders of courts made against him, including orders disqualifying him from driving, FVIOs, CCOs and grants of bail.
At the time of the current alleged offending, the applicant was subject to a number of grants of bail with curfew and other conditions, and also had a large number of charges laid by summons hanging over his head.
On 7 February 2022, only five days before the current offending, the applicant was charged with six charges of contravening a FVIO, one of persistently contravening a FVIO, contravening a conduct condition of bail, and committing an indictable offence whilst on bail. He was remanded in custody. When brought before Wangaratta Magistrates’ Court the next day, the applicant was told in no uncertain terms what the result would be should he again offend.
Four days later, the current alleged offending occurred. The offending involved repeated contraventions of the FVIO hanging over the applicant’s head, driving whilst disqualified in circumstances where the applicant had no good reason at all to be driving and sought to conceal his offending, and numerous offences of contravening conduct conditions of bail in many respects, including by driving, by breaching the FVIO, and by disregarding the curfew condition. The grant of bail made on 8 February 2022 was made on conditions which were fashioned to control the behaviour of the applicant so that he would abide by the FVIO in place and otherwise comply with the criminal law. The failure of the grant of bail to achieve those ends was stark.
The litany of charges presently faced by the applicant, aside from those which are the subject of this application, does little to dispel the concern raised by the proven recent criminal history of the applicant that he has little respect for the law, and even less for orders of courts, including FVIOs and bail.
The fact of there being a FVIO in place is one of the matters specifically required to be taken into account as part of the surrounding circumstances under s 3AAA of the Act. Furthermore, s 5AAAA(2) of the Act requires a court in considering the release on bail of a person charged with a family violence offence to consider whether upon release of the person there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a condition.
There is nothing about the personal circumstances of the applicant which would do anything to alleviate the concerns the Court might harbour as to the relatively dim prospect of the applicant being willing to abide by any conditions of bail imposed upon him. Aside from the fact that he has now spent some time in custody and claims to be no longer in a relationship with LH, the former of which undoubtedly could be expected to have had some impact upon him, and the latter of which should reduce his desire to be with her, his living and working situations would seem to be the same as those which applied at the time of his previous offending in recent times.
The applicant has shown a lack of respect for FVIOs in place to control his behaviour. He has breached such orders at will. As for the fact that he is, and has been for years, a disqualified driver, he has quite simply shown little if any regard for that fact. Those court orders, in place to protect the community, have been flagrantly and repeatedly breached by him whenever it has suited him to do so. Furthermore, at least twice in the past, as indicated by his criminal convictions, and on no fewer than three separate occasions in mid to late-2020, as indicated by charges to which he will apparently plead guilty on 7 July 2022, his driving whilst disqualified has been accompanied by the disturbing fact of his having MA in his system, a matter which raises a real concern as to community safety. That is not a concern which featured specifically in the answering affidavit of the respondent in this case, or the informant’s report exhibited to it, but it is, to my mind, a very significant factor where risk is concerned.
The matter at the heart of the applicant’s submissions, which was also central to the respondent’s changed position in the application, namely the contention that the period that the applicant would spend on remand pending resolution of these charges may exceed any sentence eventually passed upon him, is, of course, an important matter. It is not, however, determinative of this application. The contention is based upon the combination of the matters referred to in s 3AAA(1)(k) and (l) of the Act. These are two, only, of the many circumstances set out in the non-exhaustive list of matters in s 3AAA(1) of the Act which are required to be taken into account. I am required to take into account all of the surrounding circumstances. I have set out many of these in this judgment. Most of them have nothing to do with the relativity between the likely sentence and the likely period of remand.
As was noted by the Court of Appeal in El Nasher v DPP,[14] albeit in the context of the question of unacceptable risk:
There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[15]
[14][2020] VSCA 144.
[15]Ibid [51].
I have some reservations about accepting the contention, made effectively by both sides in the application, that at most the applicant may receive a short term of imprisonment. He has significant and very relevant prior convictions. In the sixteen months leading up to the current alleged offending, he embarked and continued upon a veritable spree of criminal offending, persistently refusing to be controlled by the various grants of bail which were made to him on the same sort of strict conditions proposed before me, and repeatedly ignoring the strictures of the FVIO hanging over his head. The current offending may be viewed, in that context, as being of a type that would require effect to be given to the requirements of just punishment, denunciation, general deterrence, and specific deterrence by any sentence passed upon him. The view may be formed that the relatively lenient sentences which have been imposed upon the applicant in the past have entirely failed to control his unacceptable, and sometimes dangerous behaviour.
In any event, even accepting at face value the contentions as to the likely relativity between time on remand and sentence likely to be imposed, that, as I have said, is only part of the picture.
The applicant has repeatedly shown himself to be entirely contemptuous of the institution of bail. He claimed in his evidence that his attitude has now changed because of the effect upon him of having been in custody for some time now. I do not accept that evidence. Indeed, the somewhat cavalier evidence of the applicant, in which he blithely admitted his preparedness to drive whilst disqualified whenever it suited his needs to do so, and blamed the authorities rather than himself for his breach of his most recent CCO, misrepresenting what had actually occurred, did nothing to assist his cause in the application.
The risk posed by the applicant of any of the eventualities referred to in s 4E(1) of the Act is one of the surrounding circumstances of this case. In some cases, the absence of any real risk may be an important matter that would tend towards a grant of bail. In this case, in my view, the risk posed by the applicant of reoffending is very substantial. Indeed, I would see little prospect that the applicant would be willing to abide by any conditions of bail which I might impose. That is an important matter tending against a grant of bail.
Having considered the surrounding circumstances of this case, which include, of course, the notable fact that bail is not opposed by the respondent, I am unpersuaded that exceptional circumstances exist that justify the grant of bail.
Conclusion
For the reasons I have stated, this application for bail must be refused.