Re Kuol
[2024] VSC 596
•11 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0229
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an Application for Bail by Alor KUOL
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2024 |
DATE OF JUDGMENT: | 11 October 2024 |
CASE MAY BE CITED AS: | Re Kuol |
MEDIUM NEUTRAL CITATION: | [2024] VSC 596 |
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CRIMINAL LAW – Bail – Charge of stalking – Applicant with long-established diagnosis of schizoaffective disorder – Ongoing treatment challenges while in custody – Limited insight into illness and need to comply with medication – Significant criminal history including bail-related offending - Availability of accommodation and supports – Plea hearing listed for 21 October 2024 - Compelling reason not established – Unacceptable risk made out in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S O’Connell | Victoria Legal Aid |
| For the Respondent | Ms N Cicchiello | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of a single charge of stalking.
It is agreed between the parties that I must refuse bail unless the applicant satisfies me that a compelling reason exists that justifies the grant of bail. This is because the applicant is charged with stalking and has within the preceding 10 years been convicted of an offence during the course of committing which he used or threatened to use violence against any person.[1]
[1]Bail Act 1977, Schedule 2, Clause 8(a).
Bail is opposed by the respondent. It is contended that a compelling reason has not been shown to exist. In the alternative, it is submitted by the respondent that the applicant poses an unacceptable risk in a number of respects.
Procedural history
The stalking charge was laid against the applicant on 19 June 2024.The applicant was arrested on 1 July 2024 in respect of this matter. He was issued with an application for a personal safety intervention order (‘PSIO’) on this date. He was released on bail on his own undertaking to appear on the stalking charge on 3 July 2024 at Werribee Magistrates’ Court. He was also, on 1 July 2024, released on bail to appear at the same court on the return date of the PSIO, also on 3 July 2024. That grant of bail was subject to conditions reflecting the full no-contact terms of the eventual PSIO. Those conditions prohibited the attendance of the applicant at his previous place of residence, which was also the residential address of the complainant in the stalking charge.
Shortly after being released on bail, the applicant attended at his home address and gained entry to his room through an unlocked window. His attendance at the address in contravention of his bail conditions was reported to police by the building manager. There is no evidence that the applicant sought to make any contact with the complainant at this time.
The applicant then failed to appear at Werribee Magistrates’ Court on 3 July 2024 and a warrant was issued for his arrest. He was arrested on 13 July 2024 and has been in custody since that time.
On 14 July 2024, the applicant applied for bail in the Bail and Remand Court at Melbourne. Bail was refused on the basis of unacceptable risk.
A second bail application was heard on 11 September 2024 at Werribee Magistrates’ Court. Bail was again refused on the basis of unacceptable risk.
It should be noted that both of the unsuccessful bail applications were conducted on the basis that the entitlement to bail contained in s 4 of the Act applied.
Summary of alleged offending
The complainant, a 21-year-old female, lived in the same building as the applicant in Werribee. Although in the filed material the building is described as an apartment complex, in reality, the building is better described as a rooming house, made up of separate bedrooms with ensuites, and a shared common area containing a kitchen and sitting room. The complainant and the applicant came to know each other as a result of living at the same address.
On 26 January 2024, the applicant was in the common area of the complex, asking neighbours if he could borrow some money. He approached the complainant and asked her to lend him some money as he had not been paid that weekend. She agreed to help him and sent him $50.00 via PayID, which meant that the applicant had access to her mobile phone number. Later that evening, the applicant called her and asked her to come to his apartment to look at his toe, because there was something wrong with it. She refused. He continued to insist she come to his apartment. She repeatedly declined, and then ended the call.
The following morning, the applicant sent a text message to the complainant, asking if she was at home. He asked to be able to come over and see her, because something was wrong. She told him that she would not be comfortable doing that, and told him to speak to one of the other males in the building or to emergency services if he needed assistance.
The applicant then called the complainant numerous times requesting that she come to his apartment and making advances towards her. She declined, clearly explaining to him that she was uncomfortable with him and what he was saying.
In the following days or weeks, there was an occasion on which the complainant left her apartment in the early morning on her way to the nearby train station. She observed the applicant in the parking lot across the road from the complex. The applicant followed the complainant to the station, and she pretended not to notice him. She was frightened of the applicant, and walked as quickly as she could to an area of the station where people were standing. The applicant then ceased following her.
The complainant raised her concerns about the applicant with the real estate agent and was informed that the applicant had moved interstate temporarily.
In fact, evidence indicates that on 5 February 2024, the applicant committed an assault upon a male in Hobart. He was charged with common assault and released on bail with a reporting condition. He failed to report on two occasions. On 12 February 2024, he was arrested in Tasmania. He remained in custody until 14 May 2024. On that date, he was sentenced on the assault charge to three months’ imprisonment, commencing on 12 February 2024. He was convicted on two charges of breach a bail condition.
Upon his release, the applicant returned to Victoria. On 15 May 2024, the complainant received a text message from the applicant enquiring whether she still lived at her previous address and indicating that he had not forgotten the money he owed her. Being fearful of the applicant, the complainant informed him that he could transfer the money directly into her bank account. He continued to enquire where she lived, at one point saying, ‘Do you want your money back or not?’.
On 16 May 2024, the applicant knocked on the complainant’s door. He asked her to open the door. She refused repeatedly. She told him to leave, and eventually he did so.
From that time, the applicant continued to live at the premises. He repeatedly approached the complainant whenever she was in the common areas. This made her very uncomfortable and anxious, causing her to return to her room.
On 21 May 2024, the complainant arrived home from work to find the applicant waiting at the door to the complex. She remained in her car, with the doors locked. The applicant stared at her. She was able to get inside when another resident approached the applicant and began talking with him.
On 24 May 2024, a friend of the complainant visited her. As the complainant and her fried talked in the carpark, the applicant came outside a number of times and stared at the complainant. She was afraid to walk inside the complex and needed to be assisted by her friend and the friend’s mother.
On 27 May 2024, the complainant arrived home from work and waited in her car in the carpark. She observed the applicant standing outside near the front door, staring at her. She was so concerned that she telephoned a friend for assistance to get into her apartment. Her friend arrived and walked her inside.
In early June 2024, the complainant was present in the common area with her boyfriend when the applicant came out and approached them. He tried to engage the complainant in conversation but she did not respond.
On 18 June 2024, the complainant was at home with two friends inside her room. The applicant approached the front door and knocked on it, asking to be let inside. The complainant told him he was not welcome and was making her feel uncomfortable. He asked her if she was still in a relationship, and where her boyfriend was. She did not answer his questions, and then commenced filming the applicant.
Later that evening, the complainant and her friends attended the Werribee Police Station to report the incidents. First Constable Jarrod Allison, the respondent, commenced an application for a PSIO.
The complainant informed the respondent that she would seek temporary refuge at an undisclosed address because she was too fearful to remain at her home while the applicant was awaiting police intervention.
On Monday 1 July 2024, the applicant was arrested by the respondent at his home address. I refer to the contents of [4]-[9] as to subsequent events.
Personal background
The applicant was born in Sudan in 1986. He was eight years old when he had to flee, due to civil war, and subsequently spent several years in a refugee camp in Kenya. He emigrated to Australia when he was fifteen, initially settling in Hobart with his half-brother. He fathered a son, who is now aged eighteen, and still resides in Hobart with his mother. The applicant later moved to Melbourne as a young adult.
The applicant has some contact with relatives in Melbourne, as well as his son, and he has expressed hope that he will build his relationship with his son in the future.
The applicant has a long history of diagnosed mental illness. He first engaged with mental health services in Victoria in 2008. Since that time he has been subject to three involuntary treatment orders, the most recent of which was revoked in September this year. He is also a participant in the National Disability Insurance Scheme (NDIS), and currently receives considerable support from his Support Coordinator, Mr Anthony (‘Tony’) Allen, of Easy Health Care.
The applicant was incarcerated for a lengthy period between 2011-2014 for an offence of which he was ultimately acquitted. Just prior to that period of incarceration, he experienced substance abuse issues with alcohol and marijuana, and ceased engaging with all forms of treatment for his mental illness. Following that period of incarceration and up until this year, the applicant was engaging with mental health services and consuming prescribed medication.
Criminal history
The applicant has a significant criminal history in Tasmania and Victoria. Disregarding several convictions in the Court of Petty Sessions in Hobart when the applicant was sentenced as a youth, he has since accrued findings of guilt and convictions for close to 30 charges arising from 11 court appearances concerning matters of violence, dishonesty, street offences, driving offences, and bail offences. The latter included three charges of failing to appear on bail, and nine of breaching a condition of bail.
On 14 May 2024, the applicant was sentenced to a term of imprisonment for assault, and convictions were recorded on two charges of breaching a condition of bail.
In Victoria, the applicant was dealt with for hindering police in 2007, and on 30 May 2011, he was sentenced to an aggregate term of 4 months’ imprisonment on charges including attempted robbery and two charges of failing to answer bail.
The law
Section 1B of the Bail Act 1977 (‘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.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[2] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4C(2).
[3]Section 4C(3).
If satisfied that a compelling reason exists, 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.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[4]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[5]
[4][2019] VSCA 214.
[5]Ibid [43].
The evidence
The respondent, who provided a detailed statement as part of the material filed in response to the application for bail, gave evidence before me. He confirmed that there were no allegations of the applicant having followed the respondent other than the one occasion referred to by the complainant in her statement, and that there was no evidence of violent or aggressive behaviour by the applicant towards the complainant. The conduct was largely constituted by unwanted advances.
Mr Allen, the applicant’s NDIS Support Coordinator, provided a letter of support and also gave evidence before me. In the letter of support, he outlined that he had arranged accommodation for the applicant at Brunswick Lodge, a Supported Residential Service. Mr Allen also summarised the types of assistance available to the applicant through his NDIS package, including treatment by way of psychology, positive behaviour support sessions and occupational therapy, and provision of support workers to escort the applicant to and from appointments. He opined that the applicant struggles to engage in the community in a socially adaptive ways, and that he is craving human interaction and friendships.
In oral evidence, Mr Allen stated that he initially provided support to the applicant in January this year, then support ceased for some time due to the applicant’s lack of engagement with the service provider, and then Mr Allen became involved with the applicant again when he was notified that he had been hospitalised a few weeks ago. He also confirmed that, if granted bail, the accommodation at Brunswick Lodge was still available for the applicant, notwithstanding that he would first need to comply with the Inpatient Assessment Order (‘IAO’). Mr Allen acknowledged that there would be no requirement for the applicant to reside and remain at Brunswick Lodge enforced by the accommodation, and no power for the staff to stop him if he attempted to leave the premises.
The psychiatric material provided by Forensicare confirmed that the applicant, if granted bail, would be subject to an IAO. As outlined in the order, the applicant is currently assessed as having an established diagnosis of schizoaffective disorder with prominent persecutory delusions. He lacks insight into his illness, and presents a high risk of both inflicting harm on others and experiencing a deterioration in his mental health. On that basis, it was assessed that no less restrictive means of treatment was appropriate in this case. In the lead up to the making of the IAO, correspondence between the applicant’s treating team detailed that he was experiencing ongoing psychiatric symptoms, and that while he remained compliant with his oral prescribed medications, he was refusing his depot medication.
After his arrest for the current charge, the applicant was transferred to Thomas Embling Hospital for psychiatric treatment, before recently being transferred back to Ravenhall Prison. In the Forensicare Discharge Summary, it was noted that the applicant had consistently engaged in psychiatric treatment in the community between 2017-2022/23. The Summary outlined that the applicant’s condition had significantly improved since his admission to Thomas Embling Hospital. When unwell, the applicant presents with sexual disinhibition. The Summary opined that the applicant likely developed threatening and aggressive behaviours as a maladaptive strategy to manage his own anxiety, and that his ongoing paranoia, low distress tolerance, and mistrust of mental health services likely increases the risk of medication non-adherence and subsequent relapse.
The applicant’s submissions
Mr O’Connell, who appeared for the applicant, relies on a combination of matters set out in his written and oral submissions in proof of the existence of a compelling reason in justification of bail. Those matters include:
a) The applicant’s mental illness, and the existence of an IAO. At the forefront of the submissions of Mr O’Connell was the longstanding mental illness of the applicant, the contention that his past offending, including the present offending, occurred when he was not being medicated or treated for his illness, and the proposition that steps have been put in place to ensure he continues to receive appropriate medication and treatment should he be released on bail. Although he has been reluctant to accept depot medication in the past, the applicant is now willing to do so. On his release, he would be taken to a designated mental health service for the purpose of an IAO. Following that, appropriate steps would be in place either through a compulsory treatment order or otherwise for the applicant to receive appropriate treatment for his illness. This would have the result of reducing the risk posed by the applicant.
b) The availability of suitable accommodation at Brunswick Lodge, geographically removed from the location of the offending. Although this is not a secure facility, it is a location at which the applicant would be supported. He does not drive a motor vehicle, and would have no reason in any event to go to Werribee and seek to contact the complainant. Furthermore, should the applicant leave the accommodation, this would be reported to the authorities.
c) The support able to be provided by Mr Allen under the umbrella of the NDIS. Mr O’Connell relied strongly upon the evidence and involvement of Mr Allen as mitigating the risk posed by the applicant.
d) The relative lack of seriousness of the offending. Whilst acknowledging that stalking is an inherently serious crime, Mr O’Connell submitted that this instance of stalking is not at the high end of the range of seriousness. The contact occurred because the applicant and the complainant lived in the same building. There was no suggestion of any violent or aggressive behaviour towards the complainant, but rather, the conduct was constituted by unwanted advances. There was only one episode of following. There was no contact sought while the applicant was in Tasmania, and the duration of the offending was not as lengthy as is sometimes the case.
e) The likely sentence. It was submitted that as at the time of the first day of the hearing, the applicant had already spent 89 days on remand. Given his intended plea of guilty and other matters in mitigation, including the long period of dead time as a result of the applicant’s incarceration on the charge of which he was acquitted, a non-custodial disposition is a possibility. In that regard, the applicant has never received a community correction order. Even if a custodial sentence is deemed necessary, it is likely that it would not exceed the duration of pre-sentence detention. Mr O’Connell submitted that for the applicant to be held in custody even for the short period of time before his plea hearing would be tantamount to preventative detention.
f) The long gap in and limited nature of the criminal history of the applicant. It was submitted that the criminal history is not overwhelming, and the long gap between 2008 and the present offending, with one exception, coincided with the applicant being appropriately medicated and treated for his illness.
Mr O’Connell relied on the above matters and other submissions in resisting the prosecution contention as to unacceptable risk.
In respect of the prospect of the applicant seeking to again contact the complainant if released on bail, whist it is true that the applicant returned to the premises after the initial grant of bail, contrary to bail conditions, he did not directly contact or approach the complainant on that occasion. Furthermore, there is now a full PSIO in place, as well as an IAO which would ensure the provision of mental health treatment were the applicant to be released. In addition, the supported accommodation at Brunswick Lodge and the services provided by Mr Allen would further serve to reduce risk. Mr O’Connell conceded that whilst there is a risk that the applicant may seek to contact the complainant, thereby endangering the complainant’s welfare, conditions could be put in place to mitigate the risk so that it would not be unacceptable.
Mr O’Connell submitted that the respondent was unable to establish a risk that the applicant would interfere with a witness or otherwise obstruct the course of justice.
As for the risk of the applicant failing to surrender into custody, Mr O’Connell acknowledged the prior offending of the applicant in this regard, but submitted this largely occurred when the applicant was untreated for his mental illness. He also relied upon some statements of Fox J in Re Boland which he submitted were pertinent to this case.[6] In the passage relied upon, her Honour noted that a real risk of something occurring may still be acceptable when regard is had to the circumstances of the case. In that case, her Honour considered that the prospect of the applicant failing to answer bail carried no risk of injury or damage to any member of the community.
[6][2024] VSC 85 [52].
It was submitted that in this case, while there is a risk that the applicant would fail to answer bail, that risk is moderated by the mental health treatment he has received since being in custody and will continue to receive, and by the supports he now has, including his solicitors and the NDIS supports available to him. Furthermore, the process of a Supreme Court bail application has also served to impress upon him the importance of complying with bail conditions in future.
Mr O’Connell submitted that any risk of the applicant failing to answer bail is not sufficient to justify his continued detention in custody, particularly with the availability of stringent bail conditions.
The respondent’s submissions
Ms Cicchiello, for the respondent, relied upon written and oral submissions in support of her position that a compelling reason has not been demonstrated to exist, and that in any event, the applicant poses an unacceptable risk.
In her original written submissions, Ms Cicchiello set out the respondent’s position as to some of the surrounding circumstances considered in s 3AAA of the Act. I will not deal with all of those matters here, but will mention some of them.
In respect of the seriousness of the offending, Ms Cicchiello conceded that this is not the most serious example of the offence, but is nonetheless serious, being, amongst other things, reasonably protracted. Even after being imprisoned in Tasmania, the applicant recommenced his contact with the complainant within a day of his release.
Ms Cicchiello emphasised the importance of the criminal history of the applicant. In particular, she noted the matters relating to bail breaches, both in Victoria and Tasmania, which she submitted are directly relevant to risk. She also relied upon the failure to appear on 3 July this year.
Turning to the likely sentence on this charge, Ms Cicchiello submitted that a term of imprisonment is within the range for the offending, taking into account the seriousness of the offending and the prior history of the applicant. She did not concede that any time held on remand would exceed the likely sentence. In any event, Ms Cicchiello drew the attention of the Court to the statement of Beach JA in Re Johnstone (No 2)[7] to the effect that the likelihood of any sentence being less than time already spent in custody is not determinative in favour of an applicant for bail who is required to satisfy the compelling reason test.
[7][2018] VSC 803.
In her oral submissions, Ms Cicchiello submitted that this is a case ‘that rises and falls on the question of risk’.[8] She then made the submission that ‘the best indicator of future behaviour is the evidence of past behaviour’.[9]
[8]In the matter of an application by Alor Kuol, Transcript of Proceedings 10 October 2024, 64.1.
[9]Ibid 64.2.
Ms Cicchiello pointed to what she submitted was clear and cogent evidence in the Forensicare material that the applicant has repeatedly expressed a distrust of medical practitioners and a reluctance to take his medication. In those circumstances, she questioned what conditions could be imposed which would effectively compel the applicant to take prescribed medication.
In respect of the support offered by Mr Allen, Ms Cicchiello noted the failure of the applicant to engage Mr Allen to be funded on an ongoing basis, and his previous refusal of support which was offered. Again, in this regard, Ms Cicchiello relied upon the principle that past behaviour is a good indicator of likely future conduct.
Ms Cicchiello submitted that ultimately the fate of the respondent would hinge on two things, namely, his continuing to take his medication, and his willingness to engage with supportive services.
In respect of Brunswick Lodge, Ms Cicchiello conceded that it is some distance away from the complainant’s residence, but noted that the applicant would be able to come and go as he pleased, and his fluctuating mental health and pattern of disinhibited behaviour are concerning. There would remain a tangible prospect that he would not engage with supports at Brunswick Lodge and would leave the premises.
In relation to the IAO, it cannot be anticipated what the presentation of the applicant may be when he is assessed. His mental health has fluctuated at different presentations. It cannot be comfortably assumed what might occur at the assessment.
In respect of the risks relied upon by the respondent, Ms Cicchiello submitted that the risk of failing to appear was the most significant, followed by the risk of endangering the public, with the risk of interfering with a witness or otherwise obstructing the course of justice being of less significance.
Analysis
Whilst it is not the case that the order in which matters appear in the non-exhaustive list of surrounding circumstances in s 3AAA(1) of the act to be taken into account by a bail decision maker is determinative of their relative importance, by a recent amendment to the Act, the legislature inserted a new part (aa) at the head of the list.
In this case, there is, to my mind, every prospect that the applicant may receive a term of imprisonment for the offending to which he intends to plead guilty. As to the duration of such a term, many considerations would be relevant to that, but I would be hesitant to conclude that the time the applicant would have spent on remand if not released on bail now would necessarily exceed such term.
Turning to the nature and seriousness of the alleged offending, I accept the applicant’s contention that this offending is not at the more serious end of the spectrum. Having said that, stalking is an inherently serious offence, as well reflected by its maximum penalty of 10 years’ imprisonment, and the status it has as a Schedule 2 offence in certain circumstances.
The particular offending in this case was not momentary or of short duration. It comprised a number of specific actions by the applicant which had the effect of causing disquiet and distress to the complainant. It is no small thing that the ongoing and very unwelcome conduct of the applicant aroused such a state of fear in the complainant that she eventually saw fit to leave her home and find alternative accommodation. She was justifiably frightened that the applicant’s persistence in approaching and contacting her, notwithstanding her clear pleas for him to desist, raised the real concern that he may physically attack her.
In terms of the strength of the prosecution case, that is a non-issue in this case, as is the requirement pursuant to s 1B(1)(b) of the Act to take account of the presumption of innocence. It is the intention of the applicant to plead guilty to the charge.
The applicant’s criminal history is significant. Not only does it show that over the years, the applicant has committed offences of varying types, but it manifests a lack of respect for the strictures of bail. He has repeatedly failed to answer bail, or breached conditions of bail. The extent to which an applicant has complied with the conditions of earlier grants of bail is one of the specific matters required to be considered under s 3AAA of the Act.
The applicant’s position on this score is not assisted by the fact that, immediately upon having been released on bail on the stalking charge on 1 July 2024, he returned to his home address, in the knowledge that this put him in breach of a condition of his bail. Then two days later, when required to appear in court in answer to his bail, he failed to appear. This was a repetition, as a mature adult, of offending he had repeatedly engaged in as a much younger person. In conjunction with his two earlier breaches of bail conditions in Tasmania in February 2024, this behaviour would tend to indicate that the applicant simply does not respect the institution of bail to the necessary extent.
Turning to the applicant’s mental illness, which, as I said earlier, was at the very heart of the submissions of Mr O’Connell, sadly, the applicant is currently in a situation of some fragility. He has a long-standing diagnosis of schizoaffective disorder, but the treatment of that disorder has been far from straightforward. That is clearly evidenced by the material before the Court emanating from Forensicare, largely contained in an email chain and discharge summary from Thomas Embling Hospital. In spite of the clear diagnosis, the applicant was resistant to treatment while in Ravenhall. He displayed clear signs of his mental illness, but refused to adhere to the risperidone provided to him.
It became necessary for the applicant to be transferred to Thomas Embling Hospital. In that strict environment, treatment including depot medication was forced upon him. Even then, his progress was slow. At the time of his discharge back to Ravenhall, according to the discharge summary dated 10 September 2024, the applicant became irritable when discussing medication with the treating doctors. He maintained that he did not need medication. He manifested paranoid ideas about the treatment he had received and suspicion towards medical staff. He had limited insight into his mental illness.
The discharge summary noted the management of the applicant while at Thomas Embling Hospital. This had initially been in seclusion due to the high risk he posed of perpetrating interpersonal violence. Sexual disinhibition was evident. The summary also noted the high risk of the applicant’s mental state deteriorating in the community.
When the applicant no longer met the criteria for an inpatient admission, he was transferred back to Ravenhall after about a month in Thomas Embling Hospital. On his arrival at Ravenhall, the applicant was found to still have paranoid and other psychotic symptoms in spite of all of the treatment he had received. He made it clear he would cease medication. During his time at Ravenhall, as indicated by the email chain, the applicant continued to be only partially compliant with medication, refusing to accept depot medication. He continued to show signs of paranoia.
The material indicates that the mental condition of the applicant is far from being under control. It is proposed that if he was released on bail, he would be taken to a hospital under the IAO. The Court, however, could have no confidence as to what the outcome of such an assessment would be. It is unclear whether he would be held as an inpatient, or whether he may be discharged into the community, with or without a treatment order in place. As for his willingness to actually receive treatment, that is something about which I could have no confidence, notwithstanding the assurances of Mr O’Connell that the applicant will now accept treatment. Clearly, that was not the applicant’s position in the recent past.
In my view, the psychiatric condition of the applicant raises real concerns about his ability to transition safely into the community at this time.
As for the availability of accommodation at Brunswick Lodge and the services potentially to be provided by Mr Allen, these are significant matters, but do not alleviate the concerns I have as to the stability of the applicant. The efforts of Mr Allen on behalf of the applicant are most admirable, but it is not clear to me that the applicant will necessarily accept and take advantage of all the supports on offer. He has refused the assistance of Mr Allen and others in the past, and there is a risk he may do so again.
In my view, there is some force in Ms Cicchiello’s submission that the best indicator of future behaviour is evidence of past behaviour. The fact of the applicant having previously rejected assistance offered to him is significant. So too is the ongoing fact of the applicant being in seeming denial of his mental illness and the need to receive appropriate treatment.
It is impossible to not feel considerable sympathy for the plight of the applicant with his significant mental illness, and the somewhat sad life he seemingly has led. However, that is not to deny that the current fragility of his mental condition and the uncertainty about his future treatment amount to substantial hurdles in the way of a grant of bail in this case.
Turning to the view of the complainant about a possible grant of bail, she has made her ongoing and understandable fear of the applicant well known to the respondent, as set out in his report at [35]-[39].
It is true that the applicant has been in custody for a significant period of time. However, he will come before Werribee Magistrates’ Court for a plea hearing on 21 October 2024, only ten days from now. Whilst every day spent in custody is significant, the fact that this case has the potential to be resolved in such a short period of time is an important consideration.
Having carefully considered all of the surrounding circumstances of this case, and the well-structured submissions of Mr O’Connell bringing the relevant matters to my attention, I remain unpersuaded of the existence of a compelling reason that would justify the release of the applicant on bail.
I do not accept the defence submission that to continue to hold the applicant in custody in the present circumstances would be tantamount to preventative detention. Rather, the fact is that the applicant has failed to satisfy the onus resting on him of proving the existence of a compelling reason that justifies the grant of bail.
My conclusion on that matter would be reason enough for bail to be refused.
For completeness, I note that even had I been persuaded of the existence of a compelling reason, I would have been satisfied that there is an unacceptable risk of the applicant endangering the safety or welfare of the public or failing to surrender into custody in accordance with the conditions of his bail. The applicant has frequently offended over the years, and has shown a lack of regard for grants of bail, including in recent times. He finds himself, unfortunately, in a fragile mental state. Quite aside from the risk he poses to the complainant, there is an obvious risk that he may fail to appear at his plea hearing on 21 October 2024. In my view, the overall risk he poses is unacceptable.
Conclusion
For the reasons I have stated, this application for bail is refused.
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