Re Lesslie (No 2)
[2024] VSC 613
•26 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0194
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by REECE LESSLIE |
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 September 2024 |
DATE OF JUDGMENT: | 26 September 2024 |
CASE MAY BE CITED AS: | Re Lesslie (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 613 |
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CRIMINAL LAW – Bail – Application for revocation of bail – Applicant granted bail on conditions that he reside at fixed premises, that he not consume drugs or alcohol, and that he not drive a motor vehicle – Applicant not residing at fixed address – Applicant arrested on allegations of driving stolen vehicle while affected by drugs – Bail revoked.
Bail Act 1977 (Vic), ss 3A and 18AE.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Karvela | Angus Cameron Lawyers |
| For the Respondent | Ms J Hotchkin | Victoria Police |
HIS HONOUR:
In this matter on 13 September last, I granted the applicant Reese Lesslie bail subject to particular conditions that included first — amongst others — that he reside at premises at 3 Simmons Court, West Wodonga, which is the home of his then partner Shae Kirchen.
Secondly, that he remain at those premises between 9:00 pm and 6:00 am, and that he present himself at the front door of those premises, if required to do so by police who attended there. Thirdly, that he not consume any drugs proscribed by the Drugs Poisons and Controlled Substances Act 1981. Fourthly, that he not drive any motor vehicle, and, fifthly, that he attend all appointments with the Court Integrated Services Program (CISP) as directed. I also made an order that the matter be subject to judicial monitoring, the first occasion of which is to be today.
The purpose of that was to ensure that Mr Lesslie had been completely compliant with all of the conditions of his bail.
The respondent has made an application to revoke bail, and has done so really on two principal bases. Firstly, based on matters relating to the non-compliance by Mr Lesslie with the condition that he refrain from consuming drugs, and that he reside at the premises at West Wodonga. And, secondly, based on the circumstances in respect of which he was arrested earlier this morning by Benalla police.
In respect of the first matter, the informant, Detective Leading Senior Constable Deverell, compiled a briefing note, which he confirmed in his evidence. In that, he reported, firstly, that on 24 September 2024 at 9:15 pm, Wodonga police members attended at the premises at West Wodonga, and that, after several minutes of knocking on the door, Mr Lesslie did not attend.
Secondly, Detective Leading Senior Constable Deverell has reported that he had a conversation with Shae Kirchen at 3:40 pm yesterday, 25 September, in which he was told — amongst other matters — the following: firstly, that the last day that Mr Lesslie had spent a night at 3 Simmons Court was on 23 September. He had attended at the address on the next day at 6:00 pm, but left shortly after that.
Secondly, that Mr Lesslie was using GHB and methylamphetamine. Thirdly, that she had, as a consequence, terminated her relationship with Mr Lesslie, had evicted him from the address, and she told Detective Leading Senior Constable Deverell that she had done so because, when he is using drugs, Mr Lesslie becomes unpredictable and that she was concerned as to the safety and wellbeing of her daughter, who was in the house.
The other matter, which was raised on this application to revoke bail concerns, as I have said, the arrest of Mr Lesslie this morning at 8:00 am by Benalla police. Detective Acting Sergeant Arrowsmith gave evidence relating to the circumstances of that arrest this morning, and, while it is not necessary to set that out in detail, a short summary is relevant.
Firstly, police allege that, at 2:00 am, Lesslie drove a white Nissan Navara into a camp site at the Winton-Lurg Road in Lurg. That Nissan Navara had been stolen from a location in Essendon on 22 September last. Mr Lesslie asked for some diesel fuel, as the Nissan Navara had apparently run short of fuel, and then he departed from the site. Police subsequently attended at that site, but they did not then establish that the Nissan Navara was stolen.
At 7:30 am on the same morning — that is today — Mr Lesslie was found asleep in a Subaru motor vehicle on a farm, which was opposite that camp site in the Winton-Lurg Road. The owner of the farm woke Mr Lesslie and he left. The subsequent examination of the vehicle revealed that the ignition barrel to the vehicle had been damaged, and there was a knife that was located nearby. At 8:00 am on the same morning, police attended again at the camp site on the Winton-Lurg Road, and at that time, Detective Acting Sergeant Arrowsmith found Mr Lesslie seated in the driver’s seat of the stolen Nissan Navara. I should also add that that vehicle had false number plates on it, and there was a stolen set of number plates inside the vehicle.
Detective Acting Sergeant Arrowsmith gave evidence that his perception of Mr Lesslie was that he was affected by drugs, and in particular to his perception, affected by the drug methylamphetamine. He described the basis on which he formed that view, including that Mr Lesslie’s pupils were dilated, and he was behaving erratically. Mr Lesslie was taken to the Benalla police station. At the time Detective Acting Sergeant Arrowsmith gave evidence this morning in this case, Mr Lesslie had not been interviewed, but it appears that he will face potential charges including the theft of motor vehicles, handling the stolen plates, and trespass on the farm.
As I have noted, one of the conditions on which bail was granted on the last occasion was that Mr Lesslie attend all appointments set for him by CISP. Ms Jocelyn Richardson, who is the case manager, gave evidence today that Mr Lesslie had properly attended the first such appointment that was set on 17 September, and he attended that appointment, which lasted for some 20 minutes.
However, the next appointment that was fixed for 11:00 am on 24 September — that is last Tuesday — Mr Lesslie failed to attend the appointment that was set at the Wodonga Court. Ms Richardson was at the court all day, so whilst the apparent explanation that Mr Lesslie was late was given, that explanation clearly does not hold.
One of the matters which of course is of concern is the question of the accommodation which might be available to Mr Lesslie if bail were continued. And in that respect, Ms Richardson gave evidence that there would be available to Mr Lesslie emergency accommodation for four nights — that is from tonight until Monday — at the Motel Wellington in Wodonga. After that, Mr Lesslie would be directed to the Salvation Army and the Beyond Housing program, but Ms Richardson did agree, in cross-examination, that there would be no guarantee that appropriate accommodation could be found for him. That matter is, of itself, a matter of some concern, because in view of the history of abuse of methylamphetamine and GHB by Mr Lesslie, Ms Richardson accepted that if he were rendered homeless, that would significantly increase the risks that he would continue to abuse those drugs, and thus pose a risk to the safety of the community.
The question then arises whether, taking into account all of those matters, I should make an order revoking the bail that was granted to Mr Lesslie on 13 September. It was recognised on that date, and today also, that Mr Lesslie has established, and did establish, the requisite exceptional circumstances justifying his release on bail.
However, the critical question is whether, if bail were continued today, there would be an unacceptable risk that he would endanger the safety and welfare of others, particularly by consuming drugs, and in that condition driving a motor vehicle, which he has an unfortunate history of doing. The conditions that I imposed on 13 September were specifically directed at risk. Each of those conditions were imposed to address that risk and to alleviate it, and when I granted Mr Lesslie bail on that day, I told him that any breach of those conditions at all would immediately lead to the revocation of his bail.
I told him that and advised him that, not as a threat, but because each of those conditions were designed to assist him to stay off drugs and stay out of motor vehicles, and not endanger the community. And also, for his own benefit to embark on a pathway, an overdue pathway, to reform and rehabilitation.
The question, then, is whether, in view of his breach of those conditions, that risk is now unacceptable.
I am satisfied, on the evidence that has been produced for the purposes of this application, that Mr Lesslie has, unfortunately, resorted again to the use of methylamphetamine and GHB. The account, given by Shae Kirchen to Detective Deverell, clearly indicates that that is the reason why their longstanding relationship was terminated. Ms Shae Kirchen was very supportive of bail two weeks ago. She, herself, has sought to address her own drug habit and, she, at that time, deposed that if Mr Lesslie did indulge in the use of drugs, she would not tolerate it.
It is most regrettable, not only because this will endanger his liberty, but it also has obviously ruined a good relationship that Mr Lesslie had with Ms Kirchen. The fact is that that evidence alone would satisfy me that he has been using drugs. That evidence is reinforced by the observations of Detective Arrowsmith and, as I remarked in the course of the hearing, my long experience in the law is, that police officers have become, regrettably, almost expert in detecting people who are using illicit substances.
That, of course, is a most important issue in this case, because, as has become absolutely plain, every time Mr Lesslie starts to engage in the use of drugs, he gets himself into trouble and endangers the community.
That risk will, of course, will be exacerbated by the fact that Mr Lesslie’s relationship with Shae Kirchen has broken down, and that he no longer has available to him stable accommodation, which, unfortunately, would aggravate the risk that if I did not revoke his bail, he would, again, resort to the use of drugs, get into more trouble, and endanger the community. That risk is further compounded by the conduct about which Detective Arrowsmith gave evidence today, on which he is now in custody in the Benalla police station involving being located in an intoxicated state, in a stolen motor vehicle at the campsite in Lurg.
That matter simply adds to the already significant risk that Mr Lesslie, if I would permit him to remain on bail, would get into more trouble and would endanger the community. The CISP program is invaluable in addressing this kind of risk. It has, in the past, and still does, proved itself to be highly effective in very many cases in alleviating the type of risk, which confronts Mr Lesslie. But it does require the persons participating in it to fully cooperate and commit himself or herself to it. It is a two-way street and, unfortunately and regrettably, Mr Lesslie has not taken advantage of that opportunity, not only now, but also on past occasions.
He did not attend at appointment on last Tuesday. He changed his telephone number without advising CISP. He has not been at his accommodation, and his past history of failing to comply with CISP simply gives me no confidence at all that he would, in some way, embark suddenly on a pathway of reform, and cooperate with CISP in its efforts to keep him on a road to recovery. Mr Lesslie has an unfortunate history of offending while on bail and also, in particular, offending while he was subject to a community corrections order that was imposed in October 2022. Those are additional matters that weigh in the balance in assessing risk.
I am, of course, required to take into account the surrounding circumstances in determining whether that risk is unacceptable. A very weighty favour that supports Mr Lesslie’s case is the long delay. He has already spent 457 days on remand, but it does seem that nearly all but one of his matters have resolved, thankfully, and that they will be dealt before the Koori Court on 1 November next. I am concerned about the prospect of delay in relation to the outstanding matter, but at the moment, hopefully that delay will not be excessive.
I am also conscious, of course, as I remarked in my reasons of 13 September, that under s 3A of the Bail Act, Mr Lesslie’s Aboriginality, his heritage, is of great importance in bail applications. It is a most important consideration, because if Mr Lesslie did take the opportunity to connect with his culture, he would end up living a very different life to the one that he has been living so far.
Unfortunately, notwithstanding those considerations, I am driven to the view and to the conclusion, that if I did not revoke Mr Lesslie’s bail, there would be an unacceptable risk that he would endanger the safety and welfare of others, particularly by indulging in the consumption of drugs and, in that state, driving motor vehicles as he has in the past.
I have reached that conclusion after anxious consideration, and it is one which I reach with considerable regret and hesitation. But, unfortunately, the circumstances of the case have given me no other option. I do hope that Mr Lesslie does ponder the circumstances which have brought this about, and which he has, again, ruined an opportunity to embark on a better life. But, unfortunately, I must conclude that the bail granted to Mr Lesslie on 13 September last be revoked and that Mr Lesslie be remanded in custody.
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