Re Kerbage
[2022] VSC 179
•22 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0045
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by SAMMY KERBAGE |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 March 2022 |
DATE OF JUDGMENT: | 22 March 2022 |
CASE MAY BE CITED AS: | Re Kerbage |
MEDIUM NEUTRAL CITATION: | [2022] VSC 179 |
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CRIMINAL LAW — Application for bail — Charges of trafficking in a drug of dependence, possessing a drug of dependence, possessing a prohibited weapon, breach of bail — Delay — Strength of prosecution case — Availability of treatment and bail support services — Exceptional circumstances established — Risk of flight — Risk not unacceptable with conditions — Bail granted with strict conditions — Bail Act 1977(Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Timothy Smurthwaite | SPA Lawyers |
| For the Respondent | Belinda Cowley | Victoria Police |
HIS HONOUR:
Introduction
By application dated 23 February 2022, Sammy Kerbage (‘the applicant’) seeks a grant of bail from this Court in relation to two matters, one brought by Leading Senior Constable David Burton and the other by Constable Sandeep Chauhan.
Informant Burton matter
On 5 September 2020 the applicant was arrested and charged with the following twelve offences, relating to events alleged to have occurred on 4 September 2020:
(a)Trafficking in a drug of dependence (two charges);
(b)Possessing a drug of dependence (four charges);
(c)Dealing with property suspected to be the proceeds of crime (five charges); and
(d)Dealing with proceeds of crime.
On 7 September 2020, the applicant was granted bail in the Frankston Magistrates’ Court, subject to conditions.
Informant Chauhan matter
On 3 August 2021, the applicant was arrested, charged and remanded on the following 22 charges, arising from the execution of search warrants at an apartment in Frankston on the same day:
(a)Committing an indictable offence whilst on bail;
(b)Contravening a conduct condition of bail;
(c)Trafficking in a drug of dependence (five charges);
(d)Possessing a drug of dependence (five charges);
(e)Possessing a controlled weapon;
(f)Possessing a prohibited weapon (four charges);
(g)Possessing an unregistered handgun;
(h)Being a prohibited person in possession of a firearm;
(i)Dealing with property suspected to be the proceeds of crime;
(j)Possessing ammunition without a licence; and,
(k)Possess an item for the purposes of trafficking. The Burton and Chauhan matters are next listed in Frankston Magistrates’ Court on 22 March 2022, with the former for mention and latter for contest mention.
There is one co-accused in both matters, Amanda Puyk. She is said to face similar charges to the applicant in the Chauhan matter.
The application
The application is supported by the affidavit of Richard Jakobson, solicitor, dated 23 February 2022, attaching a series of exhibits, some of which will be referred to below. The applicant filed a five page written submission and supplemented these with oral submissions on the hearing of the application, as well as calling the evidence from Mr Aaron Gilhooley, Operations Manager of The Cottage, a drug rehabilitation facility.
In response to the application, the respondent filed an affidavit sworn by Almedina Buzo, government lawyer from Victoria Police, dated 2 March 2022, also attaching a series of exhibits, including a report prepared and authored by First Constable Tyler Winkler, dated 1 March 2022. The respondent relied on this filed written material, an eight page outline of written submissions, as well as oral submissions on the application.
The alleged offending
Informant Burton matter
At 9:50am on 4 September 2020, police were undertaking routine checks in the Mornington area when they observed a motorbike and a Holden Cruze motor vehicle parked in the carpark of Norwood House Motel Park. Upon investigating further, police noticed that the numberplates of the bike were false and that the ignition barrel and storage compartment locks appeared to have been tampered with. Through the vehicle identification number, police identified that the bike registration expired in December 2019.
Police believed the bike was stolen and spoke to the hotel manager who provided a key to the room associated with the bike. Sergeant Burton gained forced entry to the room, and observed the applicant lying on a couch, with assorted drug-like substances and paraphernalia sitting on a table next to him.
Police asked about the bike and the Holden Cruze, and the applicant admitted the bike was his. The co-accused said that she had hired the Holden Cruze, and consented to a search of it. Inside the motor vehicle police located numerous clip-seal bags, three watches, including two Rolex watches, and a phone containing messages indicative of drug trafficking activity.
Police executed a search warrant in the hotel room and located and seized:
(a)27 grams of methylamphetamine;
(b)one litre of GHB;
(c)an unspecified amount of a white rock-like substance, alleged to be heroin;
(d)10 grams of cannabis;
(e)various items of drug paraphernalia, including unused clip-seal bags and sets of digital scales;
(f)a handbag containing the co-accused’s wallet, cards and identification, cash, a computer and handwritten notes listing drug weights and corresponding cash quantities;
(g)a backpack containing the applicant’s bank card, unused clip-seal bags and a spoon with white powder residue;
(h)cash, comprising of $17,920 AUD and $100 USD; and
(i)four phones and a tablet device.
The applicant and co-accused were arrested and transported to Frankston Police Station for interview. The applicant answered “no comment” to questions put to him and was charged and remanded in custody. On 7 September 2020, he was granted conditional bail in the Frankston Magistrates’ Court.
Informant Chauhan matter
Background and charges 1 and 2 – bail offences
The applicant’s bail in the Burton matter included conditions that he not associate with the co-accused Puyk and that he reside at [redacted]. At the time of the alleged offending in the Chauhan matter, it is alleged that the applicant was not residing at his specified bail address, but was instead residing with the co-accused at a two-bedroom apartment at [redacted] (‘the apartment’), which had been leased by the applicant’s brother, Fred Kerbage, in May 2021. It is alleged that SMS messages located on the applicant’s telephone provide support to the allegation he was residing at this apartment.
Charges 3 to 12 and 22 – drug related offences
At 7:05am on 3 August 2021 police executed two search warrants at the apartment. The first bedroom contained predominantly household items and appeared to be used mainly for storage purposes. In this room, police located a zip-lock bag with an unspecified quantity of methylamphetamine inside, as well as methylamphetamine scattered on the floor. The second bedroom contained clothes, documents and identification items alleged to belong to the applicant and co-accused, and a table in the corner which appeared to be a drug trafficking and storage set-up.
A number of drugs and related items were seized from the apartment, including:
(a)33.9 grams of methylamphetamine;
(b)50 grams of cannabis;
(c)one gram of ecstasy;
(d)300 ml of 1,4 Butanediol;
(e)10 grams of heroin;
(f)drug paraphernalia, including scales, deal bags, syringes, and a whiteboard with the name ‘Pasoglu’ written on it, who was marked as owing money to the applicant and co-accused; and
(g)the applicant’s phone, which contained a number of text messages indicative of drug trafficking activity.
Charges 12 to 19 and 21 – weapons offences
During the search of the apartment, police located three knives, two swords, knuckle dusters, a taser, a handgun and eight live rounds of ammunition. The applicant is said to have been a prohibited person under the Firearms Act 1996 (Vic) at the time.
Charge 20 – deal with proceeds of crime
Throughout both bedrooms, police located and seized various cards in the names of third parties, clothing with security tags still attached, and $1000 in cash.
Arrest and interview
The applicant, co-accused and seven other persons were present at the apartment when the warrants were executed. They were all arrested and transported to Frankston Police Station. The applicant answered “no comment” during interview and he and the co-accused were charged and remanded in custody. The remaining seven were released without charge, one of whom – Dennis Pasoglu – admitted to owing the applicant money and a ‘gram’.
Evidence on the application
The informant, First Constable Sandeep Singh Chauhan, gave evidence on the application, and adopted the bail report, as noted above.
The informant expressed concerns about a lack of supervision at The Cottage rehabilitation facility, although noting the presence of CCTV cameras at the premises. He agreed it was a good facility for rehabilitation, but that there would be a lack of accountability if the accused was granted bail to that location. The informant asserted there was a risk that the applicant would drift back towards his drug habit and engage in drug trafficking if granted bail, noting that the applicant is a long term drug user who is unemployed with no source of income.
The informant indicated that if the applicant’s charges don’t resolve on 22 March 2022, then a contested hearing could be held on 4 April 2022. He is preparing for that possibility. However, forensic testing, including for DNA, will not be completed by that date and there is a risk that the matter will not proceed in April 2022.
With respect to the Chauhan matters, the informant conceded that the applicant made no admissions when interviewed in relation to the allegations, either as to the possession and trafficking of drugs, the possession of the firearm, and his residence at the relevant apartment. The informant relies on a circumstantial case which includes the applicant being resident and having control of the premises, and thereby the things located at the apartment.
As above, the applicant called Aaron Gilhooley, Operations Manager of The Cottage, who explained the 16 week therapeutic based program offered at the facility. It is a facility for people who have historically had problems of substance abuse He confirmed that the applicant had been assessed as a suitable candidate for the program, and he was optimistic that the applicant is willing and able to comply with the requirements of the program. The funding is to be supported by the applicant’s brother.
In the event that the applicant breaches the program conditions, such as absconding or returning a positive drug screen, the informant and the local police station would be immediately notified. He confirmed the facility is not a locked down facility but there are CCTV cameras. He confirmed that drug testing would take place twice each week, and that if the applicant was to return a positive result from drug screening the informant would be immediately notified. He acknowledged that between 11:00pm and 8:30am the applicant had an opportunity to abscond, but confirmed that a bed check occurs at 7:00am each day.
The applicable legislation
The parties agree that, as the applicant is accused of trafficking in a drug of dependence, a schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’),[1] whilst on bail for the same schedule 2 offence, bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining whether exceptional circumstances exist, the Court must have regard to the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[3]
[1]The Act, sch 2, item 24(b).
[2]Ibid, ss 4AA(2)(c)(i), 4A(1)-(2) and sch 2, item 24(b).
[3]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[4] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[5]
[4]Ibid ss 4D(1)(a) and 4E.
[5]Ibid s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[6]
[6]Ibid s 1B(2).
Intervention orders and family violence risk
Section 5AAAA(1) of the Act requires the Court to inquire with the prosecutor whether there are any intervention orders in force against the applicant.
The respondent has identified that the applicant is the respondent to a current final family violence intervention order (‘FVIO’) listing his children, Nick and Amal Kerbage, as the affected family members (‘AFMs’). This order was made in Frankston Magistrates’ Court on 3 February 2009 and prohibits the applicant from assaulting, harassing, intimidating or threatening the AFMs, damaging their property or causing any other person to do so. The FVIO remains in effect until further order.
The applicant’s personal circumstances
The applicant is 47 years old.
Criminal history
The applicant has a lengthy and relevant criminal history dating back to 2000, with numerous court appearances for offending related to drug use, possession and trafficking, dishonesty, driving, property, weapons and violence offences. He also has numerous convictions for bail offences and contravening court orders, including suspended sentences and intervention orders.
The applicant’s submissions
The applicant relies on the following matters, in combination, in support of his application for bail.
Delay, time on remand and likely sentence
The applicant has been on remand since his arrest in August 2021 and, as at the date of the anticipated contested hearing on 4 April 2022, he will have spent 244 days in custody. It is submitted that this will likely exceed any sentence imposed for the offending, in the context of him being found guilty of all offences and considering his criminal history. This sentence may however be complicated by his entitlement to Emergency Management Days arising out of lockdowns and quarantine periods. At this point any entitlement he may have cannot be quantified.
Furthermore, the applicant accepts that if the matter is not resolved on fourth of April 2022, it may be up to a further three months before the charges are finally resolved, namely around July 2022.
The applicant accepts that his alleged offending is serious, to which is added the impact of his past criminal history. The applicant points to only one previous matter involving the possession of an unregistered firearm by a prohibited person and two past occasions of trafficking drugs, each of which are somewhat dated.
The applicant also submits that there are delays in obtaining the results of forensic analysis of items relied upon by the prosecution to support the firearm and trafficking offences against the applicant, which are charges that are to be contested.
Strength of the prosecution case
The applicant is contesting the charges in the Chauhan matter, primarily the allegations related to his alleged possession of the firearm, possession of drugs and trafficking. It is submitted that ‘the evidence in relation to the controversial charges should not be assessed as strong’ as there is uncertainty as to possession and knowledge, there are no admissions or forensic evidence linking the applicant to the drugs or weapons. It is pointed out there were nine persons present when police attended the apartment, none of whom have provided statements. Furthermore, the applicant disputes he was residing at the relevant apartment. He points to an absence of CCTV footage to prove how relevant items found their way into the premises. In short, the applicant argues that there are triable issues, and that he may be acquitted in relation to some of the key allegations.
It is argued that the prosecution case is weak as to whether the applicant was knowingly in possession of the handgun or the drugs. In the absence of any statements from the nine other persons present at the time of execution of the warrant, police cannot exclude the possibility that one or other of those persons might have brought the handgun and drugs to the premises a short period before police arrived.
It is proposed that the Burton matters are likely to resolve on withdrawal of the trafficking charges. It is conceded that this would not affect the present application being subject to the exceptional circumstances test, however it is submitted that this would not be the case had this charge not initially been filed.
Availability of treatment and residential rehabilitation
The applicant proposes to engage in residential rehabilitation at The Cottage in Shepparton. If bail is granted, the applicant will be expected to reside at the facility for a minimum of 16 weeks, during which time he would engage in psycho-social and drug addiction treatment be monitored by staff, who would report any bail breaches to police.
It is submitted that despite the applicant’s significant criminal history, he has never previously been mandated to participate in a court order involving therapeutic conditions. It is submitted that the applicant is motivated to participate in the program, and that the community has a stake in the applicant’s rehabilitation.
COVID-19 and onerous conditions of custody
It is submitted that the effects of COVID-19, including additional delays in the finalisation of matters and the more onerous conditions in custody, are factors which can contribute to a finding of exceptional circumstances that justify the grant of bail. It is pointed out that the pandemic runs an unpredictable course, and it may be that restrictions will continue. It is noted that the applicant has not had any access to personal visits during his remand, and has been subject to lockdowns.
Surety
The applicant’s brother, Fred Kerbage, proposes a surety of $10,000 in support of the bail application. It is submitted that the existence of surety is meaningful and that there is no basis on which the prosecution could properly assert that the applicant is likely to fail to attend court in circumstances where his brother would risk forfeiture of $10,000.
Unacceptable risk
In response to the alleged risk arising out of the weapons and ammunition located the time of his arrest in the Chauhan matter, the applicant submits that less weight should be given to these factors as these charges are contested.
In respect his criminal history, the applicant submits that there is nothing to suggest he would interfere with witnesses and he has previously demonstrated his ability to live in the community ‘without coming to the attention of police’ given the gap in offending between 2017 and the present allegations. Further, he has only singular convictions involving firearms and committing an indictable offence whilst on bail. Further, the applicant points out that he was last convicted of the offence of failing to answer bail in 2013.
The applicant accepts that he has a sketchy employment history, contributed to by his historical issues of substance abuse. He maintains he has the support of his family, in particular his brother, the proposed surety. Thus, it is submitted he has ties to the community, and there is not a demonstrable pattern of failing to attend court since 2013.
The applicant submits that his involvement in the criminal justice system is attributed to his drug addiction, and treatment at The Cottage would overcome this and be a circuit-breaker.
It is accepted by the applicant that a grant of bail entails accepting a risk, but that where particular conditions can be imposed, particularly involving engagement and residence at a rehabilitation facility, that risk can be ameliorated to a point where it becomes acceptable. It is submitted that the Court should be hesitant in finding the applicant is an unacceptable risk in circumstances where the applicant has demonstrated that he is motivated to overcome his drug problems.
The respondent’s submissions
The respondent opposes bail on the basis that the applicant has not demonstrated exceptional circumstances that justify a grant of bail and that he poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s submissions, the respondent refers to the bail report referred to above, prepared for the purposes of this application.
Nature and seriousness of the alleged offending
The respondent submits the allegations are serious as they involve a substantial quantity of drugs, trafficking allegations and weapons, including a loaded firearm.
Strength of the prosecution case
The respondent submits the prosecution case is a circumstantial one and is strong, there being evidence to support the elements of all alleged offences. For the purposes of a bail application, prosecution case should be taken at its highest.
In response to the applicant’s submission that the main issue in contention relates to the firearm possession, the respondent notes that the weapon was found in a bedroom amongst the applicant’s belongings, under a table specifically set up for trafficking drugs.
Further, the applicant submits that the firearm was located under a table specifically set up for trafficking activity, and that there were text messages located on the applicant’s phone that suggest he was residing at, and trafficking drugs from, the apartment. The prosecution intend to call at the trial each of the persons present to did not provide statements and employ the unfavourable witness provisions to obtain evidence of their non-involvement in the alleged offending. Further it is pointed out that evidence the applicant was residing at the apartment is corroborated by a statement from the applicant’s brother, Fred Kerbage.
Criminal history
The applicant has a criminal history with relevant priors for drug and weapon possession and contravening suspended sentences. Further, he has a history of non-compliance with court orders including orders of bail, suspended sentences, FVIOs and driving whilst disqualified or suspended, and having previously committed an offence whilst on bail. It is submitted that the applicant has a significant history of non-compliance with court orders, including convictions for failing to answer bail.
History of compliance with conditions of earlier grants of bail
The respondent submits that the applicant has 14 convictions for failing to answer bail. Further, the alleged offending in the Chauhan matter has occurred whilst he was on bail in the Burton matter and in circumstances involving contravention of the residential and non-association conditions.
Personal circumstances
The respondent submits that the applicant has a history of drug use dating back to 2004, engages in trafficking to generate income and is known to carry weapons, including firearms. Further, it is unlikely bail conditions would deter continuance of the relationship between the applicant and the co-accused. It is submitted that the applicant’s previous criminal history demonstrates that drug trafficking has been his only means of income in the past. It is submitted that the applicant’s criminal history, which involves repeated breaches of bail, parole and suspended sentences, demonstrates a blatant disregard for court orders.
Availability of treatment and support services
The respondent has made enquiries with The Cottage in relation to the proposed residential rehabilitation. The respondent notes that the applicant would be permitted to leave the facility at any time if he were to be bailed there, and would not be prevented from doing so by staff, despite the applicant’s submission that he would be monitored. The respondent submits that this arrangement places the community at risk as the applicant is a violent habitual drug-user with access to firearms and ammunition, who has demonstrated through his consistent failure to comply with court orders that he is unlikely to comply with the program at The Cottage.
Time on remand and likely sentence
Considering the nature of the allegations, the respondent submits that it is open to the Court to impose a term of imprisonment. The applicant will have spent 231 days in custody as at the next listing date, which would be the earliest opportunity for the matter to resolve.
Surety
The respondent notes that the applicant’s brother, Fred Kerbage, provided a surety on one of the applicant’s previous undertakings of bail, which has since been breached.
Unacceptable risk
Endangering the safety or welfare of another
The respondent submits that the applicant is a habitual drug user who engages in violent and unpredictable behaviour when under the influence of drugs. He was found in possession of various weapons at the time of his arrest, whilst deemed a prohibited person, and has a history of contravening intervention orders and committing violent offending, including offences of threatening to kill, recklessly causing injury and assault.
Committing an offence
The respondent submits that the applicant has a history of committing offences whilst on bail, and for contravening other court orders including suspended sentences and FVIOs. Further, the respondent submits that the applicant has contravened his most recent bail conditions by failing to reside at the designated address and associating with his co-accused.
It is submitted that the applicant presents a real and unacceptable risk of committing further offences, not complying with his conditions of bail, endangering the safety or welfare of the public, and failing to answer bail. In particular, it is submitted that given the applicant’s past history of breaching court orders, and failing to comply with previous orders, he presents with a lack of motivation to change his ways, thus amounting to an unacceptable risk as defined by the Act.
Analysis and conclusions
Both parties agree that the exceptional circumstances test applies to this application. The applicant argues that he has satisfied the test, and further, that the respondent has not satisfied the court that he is an unacceptable risk such that a grant of bail should be denied. The burden of establishing exceptional circumstances remains on the applicant. The burden of establishing the applicant is an unacceptable risk lies on the respondent.
Exceptional circumstances
In the assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been noted above. It is clear that the test can be satisfied by a combination of factors, observing that whilst each of the factors might individually be regarded as ordinary and not individually exceptional, when viewed together, may satisfy the test. Further, I have considered and applied the observations as expressed in Roberts v The Queen[7] referenced by Lasry J in Re Strachan.[8] His Honour observed:
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a)The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b)Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c)Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[9]
[7][2021] VSCA 28, at [9].
[8][2021] VSC 538, at [28].
[9]Ibid at para [27].
In determining this application I will apply the test as set out by Lasry J, as above.
The applicant submits that a combination of circumstances acts to satisfy the exceptional circumstances test.
As to the strength of the prosecution case, the prosecution mounts a circumstantial case against the applicant, against which the applicant argues there are triable issues that arise, some of which were pointed out in submissions. In particular it is argued that the charge relating to the possession of the hand gun, and the possession and trafficking of drugs, should be regarded as arguable, and it being by no means certain that the applicant will be convicted of all the alleged offences. It is pointed out that the applicant made no comment record of interview, and accordingly there are no admissions that can be relied on by prosecution. Further, the applicant places significance on the fact that when police arrived to execute a search warrant, there were at least seven other people within the premises at the time. It is argued that in light of these other persons not providing statements to the police about their non-involvement in any of the alleged offences that prosecution case is significantly weakened.
It is not the role of this court on a bail application to try the issues between the prosecution and defence, but rather to come to a broad view about the strengths and weaknesses of the prosecution case as such an assessment bears relevance to the determination of the application. In my opinion it cannot be said that the prosecution case is a weak one, but neither can it be said to be particularly strong. Seen in combination, various pieces of evidence tend to support the conclusion that the applicant and his girlfriend were in residence at the relevant apartment. However, the fact that there were a number of other persons present when police arrived at the premises is a significant factor when the case is being put on the basis of the applicant and the co-accused being jointly and severally in possession of a handgun and drugs within the premises. In my opinion it cannot be said that findings of guilt are inevitable in respect of all the charges brought against the applicant. Furthermore, there is a suggestion that at least some charges brought against the applicant may be resolved with trafficking charges being withdrawn. Whether this will occur or not, is uncertain.
As to the question of delay and sentence, it appears that some prospect exists that this case will be resolved on 4 April 2022. However, some forensic testing remains to be completed. It appears that there is a realistic prospect that these matters may not be completed until later in 2022, possibly as early as July. If that is to occur then this would mean that the applicant will have spent approximately 12 months in custody since his arrest, and will yet be required to be on remand for another three to four months. Given a degree of uncertainty as to what charges will eventually be proven against the applicant, it seems to me there is a degree of uncertainty as to whether the time he may be required to serve on remand might be more than, or equivalent to, any sentence to be imposed in respect of these matters.
In all the circumstances, I am satisfied that the applicant has met the exceptional circumstances test. In coming to this conclusion, I consider that the opportunity for the applicant to complete a 16 week therapeutic course as being the most significant factor in meeting the necessary test. In the absence of this factor, in my opinion this application would not have met the required test.
Unacceptable risk
As to the question of unacceptable risk, taking all the circumstances into account, I am not satisfied the respondent has established that the applicant represents an unacceptable risk, as set out in the Act.
The applicant has been accepted into a 16-week rehabilitation program at The Cottage, located in Shepparton. I am satisfied there is sufficient evidence from the applicant’s criminal history, as well as from the evidence of the informant and the operations manager of the Cottage, to establish he is a long-term drug user, and suffers from an ongoing addiction. I am also satisfied that the evidence reveals he has engaged in the trafficking of significant quantities of drugs of dependence, this being of course consistent with the current allegations being brought against him.
As to the question of unacceptable risk, I am not persuaded that in the event the applicant receives a grant of bail, he remains an unacceptable risk as defined by the Act. I am of the opinion that the various risks asserted by the respondent can be ameliorated by the application of stringent conditions, including a surety, attached to a grant of bail. In my opinion the greatest risk attaching to the applicant is that he may commit further offences whilst on bail. Such a risk should be ameliorated to an acceptable level by the application of strict residential requirements, ensuring that the applicant remains in residence at The Cottage. I am satisfied by evidence that the management of The Cottage will report any breaches of bail, or absconding, immediately in the event that these may become known.
The applicant’s poor criminal history is to be acknowledged, including previous breaches of bail, and other court orders. I have obvious concerns regarding the presence of a firearm and ammunition in the applicant’s apartment at the time of his arrest, along with the applicant’s regrettable history of violence. I have taken these circumstances into account in a number of ways, including as to the assessment of risk, as surrounding circumstances to that issue, as well as the determination of exceptional circumstances. I add that I was unimpressed by the applicant’s demonstrated poor behaviour and attitude during the hearing of this application, as he made it clear he has difficulty with his self-regulation, and apparent limited insight into his behaviour. Nevertheless, I conclude that these features are likely to be remnants of his addictive nature and should legitimately be part of the therapeutic process to be provided by The Cottage. It may be that mental health issues need also to be addressed. All that taken into account, in my opinion, the applicant has an opportunity to engage in a therapeutic program, apparently something which has not been mandated previously, and that this opportunity exists for a period of 16-weeks leading up to the point where it is more likely his cases will be dealt with later in this year.
It appears to me that the community has a long-term interest in providing the applicant with an opportunity to overcome his drug addiction problem. If the opportunity is not provided at this point, then there is a chance it will never occur, with the outcome that the applicant will re-emerge from a custodial sentence and fall back into the routine of his past. If The Cottage program can intervene successfully, then this should provide the applicant an opportunity to complete the program in 16 weeks, at which point it will be more clearly identified whether he can become a valued member of society, or an ongoing burden, with a wasted life. At this point, given the applicant remains under the control of a court order, there exists an acceptable level of risk to the community if he remains at The Cottage, where he may hopefully learn some life and coping skills.
Taking into account all the circumstances, the Court will admit the applicant to bail on his own undertaking, there being a surety in the amount of $10,000 provided by Fred Kerbage, and on the following special conditions:
(a)He attend the Frankston Magistrates’ Court on 6 April 2022 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 be released into the custody of a staff member at The Cottage at [redacted].
(c)He reside at The Cottage until the conclusion of the residential treatment program or until further order of a court.
(d)The applicant must not leave the premises of the Cottage except in the company of a staff member of The Cottage, and with permission of the Program Manager, or his delegate.
(e)The applicant must engage in treatment and comply with all lawful directions of the staff at The Cottage.
(f)He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(g)He provide a sample of his urine for testing if required to do so by any member of staff at The Cottage.
(h)He report every Monday to Shepparton police station between the hours of 9:00am and 6:00pm.
(i)He not contact, directly, or by any means whatsoever, the co-accused, being Amanda Puyk, for the duration of the bail period.
(j)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(k)He possess and use only one mobile phone and provide both the phone number and PIN to the informant upon request.
(l)He not leave the State of Victoria.
(m)He surrender any passport he may have to the informant within 24 hours, and not apply for another.
(n)He not attend any points of international departure.
(o)He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 28 April 2022, and any further dates this Court appoints during the course of this order.
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