Re L M
[2021] VSC 735
•4 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0250
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by L M |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 October 2021 |
DATE OF JUDGMENT: | 4 October 2021 |
DATE OF REVISED REASONS: | 10 November 2021 |
CASE MAY BE CITED AS: | Re L M |
MEDIUM NEUTRAL CITATION: | [2021] VSC 735 |
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CRIMINAL LAW — Bail — Application for bail — Charges of contravening a nationally recognised domestic violence order and failing to comply with a direction of the Chief Health Officer — Prima facie entitlement to bail — Delay in matter finalising — Probability applicant would spend more time remanded in custody than term of imprisonment imposed upon a finding of guilt if bail not granted — Proposed that applicant reside in State of Queensland — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4E, 5AAAA; National Domestic Violence Order Scheme Act 2016 (Vic) s 4; Mental Health Act 2016 (Qld).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Sam Di Carlo | Tut & Co Lawyers |
| For the Respondent | Mr Nathan Watt | Victoria Police |
HIS HONOUR:
This is an application for bail by L M (the ‘applicant’). On 4 September 2021, Senior Constable Rachael Edgar charged the applicant with the following offences (the ‘Edgar matter’):
(a) contravening an interim family violence intervention order;[1] and
(b) failing to comply with a direction of the Chief Health Officer.[2]
[1]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
[2]Contrary to s 203(1) of the Public Health and Wellbeing Act 2008 (Vic).
The applicant was remanded in custody the same day. The applicant was refused bail on 6 September 2021 at the Bendigo Magistrates’ Court on the basis that, in the opinion of the presiding Magistrate, he posed an unacceptable risk of endangering the safety or welfare of any person; committing an offence whilst on bail; interfering with a witness or otherwise obstructing the course of justice; or failing to surrender into custody in accordance with conditions of bail.
By notice filed on 20 September 2021 the applicant now seeks a grant of bail in this Court. The Edgar matter is next listed on 18 October 2021 at the Bendigo Magistrates’ Court for mention. I am proceeding on the basis that it is unlikely the matter will finalise prior to early 2022 should it proceed to contested hearing.
The alleged offending
On 27 May 2021, a temporary protection order (‘the DVO’), which is analogous to an interim family violence intervention order,[3] was made in the Southport Magistrates’ Court in Queensland. That order varied a previous order and named the applicant as the respondent and his ex-partner (the ‘complainant’) as the aggrieved person. The DVO remains in effect until further order and, subject to limited exceptions, contains full no contact conditions including that the applicant not be within 100 metres of the complainant or her usual place of residence. It is a nationally recognised order which can be enforced in other states and territories of Australia.
[3] National Domestic Violence Order Scheme Act 2016 (Vic), s 4.
Shortly after midnight on 4 September 2021, the applicant attended his brother’s home in Echuca, where the complainant was residing. At the time, the State of Victoria was subject to lockdown restrictions under the Public Health and Wellbeing Act 2008 (Vic), which prohibited persons from leaving home other than for the five prescribed reasons. The applicant tapped on the window of the residence in an attempt to speak with his brother, stating “don’t tell [the complainant] I’m here.” The applicant’s brother contacted police to attend and the applicant left the property.
At about 1:20 am police arrested the applicant approximately 200 metres from his brother’s residence, and conveyed him to Echuca police station. The applicant stated in his record of interview that he flew from the Gold Coast to Adelaide on 2 September 2021, then flew to Mt Gambier, where he hired a car and drove to Hamilton in Victoria. The applicant stated that he was travelling from Hamilton to Echuca when his hire vehicle broke down, and he attended his brother’s address to obtain assistance. Upon realising that the complainant may have been in the house, the applicant left the property and lay in scrub where police located him shortly afterwards.
Other outstanding matters for which the applicant is on bail
At the time of the alleged offending in the Edgar matter, the applicant was subject to bail for three matters in Queensland. The matters can be summarised as follows.
Informant Bell
On 17 April 2021 the applicant allegedly stabbed his 12 month old dog, believing that it was possessed. The stab wounds were non-fatal. Two days later the applicant requested his partner’s assistance in killing the dog, which she refused. The applicant proceeded to strangle and drown the dog, causing it to die.
On 16 July 2021 the applicant was interviewed by police. The applicant admitted to killing the dog, stating that a veterinarian advised him to drown the dog following a snake bite. The applicant did not provide police with details for the veterinarian. He was subsequently charged with one count of animal cruelty and issued with a notice to appear.
Informant Young
On 20 June 2021 the applicant allegedly sent a two-page email to the complainant’s email address in breach of the DVO imposed on 27 May 2021.
On 3 July 2021 police interviewed the applicant. The applicant confirmed that the email came from his email address, however denied sending the email and stated that his account must have been hacked. The applicant was charged with one count of contravening a domestic violence order and issued with a notice to appear.
Informant Fraser
At 9:15pm on 13 July 2021 the applicant and an associate attended the Griffith University Health Facility. The applicant used an implement to force the doors open, causing the glass to break. He and his associate proceeded to the medical offices and screwed a letter and a flyer for the applicant’s film onto an office door. The letter called for the sacking of staff due to ‘wrongful incarceration’ and requests that $100,000 be deposited into the applicant’s bank account. The applicant and his associate then left the property.
On 19 August 2021 police offered the applicant the opportunity to participate in an interview. The applicant declined, and was charged with trespass and wilful damage and issued with a notice to appear.
Uncharged matter
As I understand it, Queensland police also wish to question the applicant in regard to a breach of the DVO by allegedly sending an email to the complainant on 29 July 2021.
The applicable legislation
The applicant is prima facie entitled to bail.[4] Notwithstanding this, bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) and that such risk is unacceptable.[5] In considering whether a risk is unacceptable, the Court must take into account the surrounding circumstances, including but not limited to those set out in s 3AAA of the Bail Act 1977 (Vic) (‘the Act’).[6] Further, the Court is required to consider whether that risk could be mitigated by the imposition of bail conditions.[7]
[4]Bail Act 1977 (Vic), s 4.
[5]Ibid ss 4(1)-(2).
[6]Ibid s 4E(3)(a).
[7]Ibid s 4E(3)(b).
Section s 5AAAA(1) requires the Court to make inquiries of the respondent as to whether there is in force against the applicant a family violence intervention order, a family violence safety notice or another recognised domestic violence order. As I have already indicated, the applicant is currently subject to a recognised DVO made in Queensland on 29 April 2021, and varied on 27 May 2021, which names the complainant as the aggrieved person and their children as secondary protected persons. Section 5AAAA(2) requires the Court to consider whether, if the applicant were to be released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a condition or the making of a family violence intervention order.
The applicant’s circumstances
The applicant is 43 years old. He was raised in Newcastle with his parents and eight siblings, and reports a normal childhood.
The applicant completed his schooling in Queensland before moving to Victoria in 1999 to undertake a degree in nursing. He commenced working as a nurse in 2003.
In 2006 the applicant lost his employment due to being charged with rape and theft. He spent 19 months in custody before being acquitted of the rape charge in 2009. The applicant is currently pursuing civil compensation against Victoria Police in regard to his trial and subsequent acquittal.
Following his release from custody the applicant returned to Queensland and married the complainant. They have four children together, each of whom currently reside with the complainant.
The applicant is self-employed as a writer, director and owner of Vision Pictures Pty Ltd. The business employs four full-time employees, and works with up to forty contractors and hundreds of actors whilst in production.
The applicant was reportedly diagnosed with post-traumatic stress disorder after his release from custody following his acquittal. He has previously been prescribed Valium and was involuntarily admitted to hospital on 11 August 2021, presenting with symptoms of persecutory delusions. The circumstances of his discharge are not clear.
Criminal history
The applicant has a criminal history in Victoria, Queensland and New South Wales for offences against the person, property and driving offences.
The applicant’s contentions
Mr Di Carlo, on behalf of the applicant, relied on the following matters in support of the submission that the risk of releasing the applicant on bail was not unacceptable.
Strength of the prosecution case
The full brief has not yet been served. The applicant will deny being aware that the complainant was residing at his brother’s address when he attended there. He states that the purpose of his travel between Queensland, South Australia and Victoria was ‘location scouting’ for his upcoming film production.
Previous bail compliance
The applicant has no prior history of failing to answer bail. It is conceded that, at the time of the alleged offending, the applicant was on bail for outstanding matters in Queensland.
Stable accommodation
If the applicant is granted bail he can reside at his long-term rental home at [redacted], Queensland, subject to initial quarantine requirements. As it stands, the applicant would be required to complete a ‘Queensland Entry Pass’ three days prior to entering Queensland, and would be allowed re-entry following that period on the basis of falling into an exemption category of persons complying with court orders. After re-entering Queensland, the applicant would be subject to mandatory 14-day quarantine in government accommodation, following which he could return to his residence. It is noted that the proposed address is a significant distance from where the prosecution witnesses reside. I understand that the applicant has been afforded the opportunity to complete his Queensland re-entry pass in custody. It was deposed in affidavit that the applicant has a flight booked departing Tullamarine Airport for Brisbane at 4:10 pm today, should he be granted bail.
Business hardship
The applicant’s business had been working on a new project prior to his remand, which involved the outlay of significant funds from investors. This project remains suspended while the applicant remains on remand in custody. Obviously the applicant being in custody is having an adverse effect on his business.
Special vulnerability
The applicant has a history of poor mental health, having been diagnosed with post-traumatic stress disorder. He ordinarily meets with a psychologist fortnightly and has previously been prescribed Valium by his general practitioner, although is not currently said to be on any medication.
Availability of treatment
On 11 August 2021, the applicant was made subject to a treatment authority under the Mental Health Act 2016 (Qld), which is an authority to provide treatment and care to a person who has a mental illness and who does not have capacity to consent to being treated,[8] in circumstances where there is an imminent risk of serious harm to the person or others.[9]
[8]Mental Health Act 2016 (Qld) s 18(1).
[9]Ibid s 18(3).
The authority was issued by an authorised doctor, who noted the applicant’s persecutory delusions and a lack of insight into his condition or need for treatment. The authority notes that the applicant had stabbed and drowned his own pet, due to believing it to be possessed; possessed scissors whilst in attendance at an emergency department; and made homicidal threats towards mental health staff. The issuing doctor cited serious concerns about the applicant’s risks (presumably to self and others) and mental health, and its likely deterioration if left untreated. I would endorse the need that those matters should be attended to and observe that treatment outside custody is more likely to be effective than a continuing and potentially indefinite period of remand.
On 13 August 2021, the authority was ‘confirmed with amendment’ by an authorised psychiatrist, although the nature of the amendment is not clear from the authority itself, and neither is the extant effect of the authority on the applicant if he were to be granted bail.
It is submitted on the applicant’s behalf that if granted bail he would have access to accommodation and support through the authority, referred to as a ‘community based order’, including weekly counselling. This is notwithstanding that the authority provided identifies itself as being an inpatient, not community-based, authority and does not appear to prescribe weekly counselling, or any other condition.
Delay and likely sentence
As I have indicated, the applicant has been on remand since 4 September 2021 when bail was refused in the Magistrates’ Court. I have been informed that the Magistrate who refused the grant of bail gave a sentence indication of three months’ imprisonment should the applicant plead guilty to the charges. I do not, with respect, accept that a sentence of 3 months’ imprisonment is likely to be imposed upon a plea of guilty in all the circumstances of this case.
As I have already noted, there will be some delay in the matter finalising bearing in mind that it is next listed for mention on 18 October 2021 and that the likely contested hearing date for this matter would be in the first quarter of next year, which may result in the applicant remaining remanded in custody for a period of some four or five months should he not be granted bail. This is on any view far in excess of any sentence which might be imposed on the applicant in relation to the Edgar matter.
Unacceptable risk
In the written material filed with the court on the applicant’s behalf it is submitted that any unacceptable risk can be ameliorated to an acceptable level with appropriate conditions of bail, including a residential condition, reporting, curfew, not leaving Queensland unless to attend court hearings in Victoria, not approaching domestic or international points of departure, the applicant surrendering his passport, a condition prohibiting contact with witnesses except for the informant and compliance with the DVO.
The respondent’s contentions
Mr Kibel, on behalf of the respondent, opposed bail on the basis that the applicant is an unacceptable risk of each of the matters set out in s 4E(1)(a) of the Act.
Stable accommodation
The respondent does not accept that the distance between the applicant’s and complainant’s residential addresses will prevent further breaches of the DVO. The respondent highlights that two of the alleged breaches involved the applicant contacting the complainant via email, and in the current matter the applicant made significant effort to travel to Victoria to contact the complainant. I observe that, when assessing whether the applicant poses an unacceptable risk within the meaning of the Act, it cannot be assumed that he is guilty of the offending for which he has been charged prior to those matters finalising.[10]
[10]See above n 4, s 1B(1)(b).
Availability of treatment
The respondent submits that there is no evidence to support the applicant’s compliance with any mental health treatment, and therefore the extent to which any existing treatment order mitigates risk is unclear. The respondent notes that the LEAP database shows a warrant was issued in regard to the applicant on 8 September 2021 in Queensland for an ‘authority to transport’ pursuant to the Mental Health Act 2016 (Qld). The respondent was not able to provide any further particulars in regard to that warrant.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent asserts that the allegations against the applicant are a serious example of family violence as he breached COVID-19 border restrictions to locate and attempt to contact the complainant. Further, it is submitted that the applicant’s psychiatric history increases the risk he poses to the complainant and the community generally.
Committing an offence whilst on bail
The respondent submits that the applicant has demonstrated a willingness to breach court-imposed orders, noting that the current alleged offending occurred whilst he was subject to bail and a DVO.
Interfering with a witness or otherwise obstructing the course of justice
The respondent further contends that the applicant has attempted to interfere with a witness through breaching the DVO.
Failing to surrender into custody in answer to bail
As the applicant intends to reside in Queensland if released on bail, the respondent initially submitted that the applicant poses a risk of failing to surrender into custody in accordance with bail. However, in the course of argument Mr Kibel I think accepted that the applicant returning to Queensland would substantially diminish the risk he poses to the complainant.
Analysis and conclusion
The potential delay in this matter finalising, exacerbated of course by the effect of the COVID-19 pandemic on the criminal justice system, is of considerable significance. This is especially so in circumstances the applicant is likely to spend more time remanded in custody than any term of imprisonment he would be sentenced to should he be found guilty of the charges. Delay is relevant not only to cases where an applicant is required to establish exceptional circumstances or a compelling reason justifying the grant of bail. It is also a relevant consideration in relation to the assessment of unacceptable risk pursuant to s 3AAA of the Act.
In my view, the respondent has not discharged the onus of demonstrating that the risk of releasing the applicant on bail would be unacceptable. The significance of delay, in addition to the applicant returning to reside in Queensland and the imposition of strict conditions of bail, can ameliorate risk to an acceptable level.
It seems to me appropriate to include a condition of bail requiring the applicant to attend before this Court for the purpose of judicial monitoring on one occasion to ensure that he has been able to return to Queensland and that the other conditions of bail which I will shortly impose are otherwise being complied with. The conditions of bail I will impose are subject of course to the practical realities of the applicant returning to Queensland, specifically any period of mandatory quarantine he may be required to undergo upon his return to that State.
I will make the following orders:[11]
[11]The applicant failed to attend the judicial monitoring hearing listed 11 October 2021 as a WebEx link could not be facilitated while the applicant was in hotel quarantine in Queensland. The matter was adjourned to 15 October 2021 for further judicial monitoring hearing. The applicant failed to attend the judicial monitoring hearing on 15 October 2021. A warrant was issued for the applicant’s arrest at this hearing and the matter was adjourned for further judicial monitoring hearing on 18 October 2021. The applicant attended the judicial monitoring hearing on 18 October 2021, where his counsel informed the Court that the applicant appeared before the Magistrates’ Court at Bendigo that morning and, upon pleading guilty to the offending the subject of the Edgar matter, was fined a sum of $3000. Upon being sentenced, the applicant’s grant of bail for the Edgar matter expired and the warrant for the applicant’s arrest was revoked.
1.The said LM (‘the applicant’) be admitted to bail upon his own undertaking and with the following conditions:
(a)When able to do so, the applicant reside at [redacted] in the State of Queensland (‘place of residence’) after completing any mandatory quarantine required in the State of Queensland;
(b)The applicant not leave his place of residence between the hours of 10:00 pm and 5:00 am (‘curfew hours’);
(c)The applicant present at the front door of his residence during curfew hours upon the reasonable request of the informant Senior Constable Rachel Edgar or her nominee, being an authorised member of Victoria Police, or upon the reasonable request of a member of Queensland Police.
(d)The applicant report to the Officer in Charge of the Coolangatta Police Station, or their nominee, every Monday, Wednesday and Friday between the hours of 6:00 am and 9:00 pm;
(e)The applicant not, whether directly or indirectly, contact or associate with any witness for the prosecution other than the informant;
(f)The applicant comply with all current Family Violence Intervention Orders and any other nationally recognised Domestic Violence Order in which he is the respondent;
(g)The applicant not leave the State of Queensland, except for the purpose of attending Court hearings in Victoria, without the permission of the informant or a Court in either the State of Queensland or the State of Victoria;
(h)The applicant not attend any points of international departure;
(i)The applicant surrender any current passport or travel document in his possession or control to the informant or her nominee within 72 hours of being released on bail;
(j)The applicant is not to apply for any such passport or travel document, whether directly or indirectly, or cause any other person to do so on his behalf; and
(k)The applicant appear:
(i)At the Magistrates’ Court at Bendigo on Wednesday 18 October 2021 at 9:30 am;
(ii)At this Court, for the purpose of judicial monitoring, on Monday 11 October 2021 at 9:30 am;
and thereafter as directed by each court.
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