Re Lokodu
[2020] VSC 759
•9 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0266
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by LOMARY LOKODU |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2020 |
DATE OF JUDGMENT: | 9 November 2020 |
CASE MAY BE CITED AS: | Re Lokodu |
MEDIUM NEUTRAL CITATION: | [2020] VSC 759 |
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CRIMINAL LAW – Bail – Aggravated home invasion – Applicant failed to attend trial in answer to bail – Delay – Importance of delay tempered by applicant’s involvement in bringing it about – Strength of prosecution case – Relevance of acquittal of co-accused – Case reasonably strong – Sentence upon conviction likely to exceed any period on remand – Exceptional circumstances not established – Unacceptable risk in any event - Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Dwyer | Leanne Warren & Associates |
| For the Respondent | Mr A Grant | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges he faces of aggravated home invasion, common assault, intentionally damaging property, and theft (the ‘informant Elliott matters’).
Briefly, the charges related to an incident on 1 September 2017, in which it is alleged that the applicant and two co-accused were amongst a large group of men who attended a residential address in Albion, armed with wooden sticks and metal poles, and assaulted one of its occupants and damaged the residence.
Aggravated home invasion is a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[1] It follows that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[2]
[1]Bail Act 1977 (Vic) (‘the Act’) sch 1, item 4.
[2]Ibid ss 4AA(1) and 4A.
Procedural history
The applicant was arrested and charged on 1 September 2017. After being twice refused bail in September and December 2017, he was ultimately granted bail on 8 March 2018 after being committed to stand trial. It was a condition of bail that he reside with his parents in St Albans. Without notifying the informant, the applicant left this address and commenced to reside with his partner in Albion.
The matter was listed for trial on 25 February 2019 in the Melbourne County Court, ending up in the reserve list. The applicant failed to appear on that day but did appear on 26 February 2019, and was re-bailed on strict conditions including a surety of $1000, a residential condition in Albion, and daily reporting at Keilor Downs Police Station. On 27 February 2019, the trial was adjourned to a new trial date of 2 September 2019, and the applicant’s bail was extended to that date.
On 29 March 2019, the applicant was charged with assault of his partner, (the ‘informant Nicholson matters’) and criminal damage, and was released on bail. A Family Violence Intervention Order (‘FVIO’) was granted on 1 April 2019 with conditions that prohibited him from residing with his partner at the address which was his bail address. After leaving the residence, the applicant failed to notify his solicitor and the informant about his change of address.
It is alleged that the applicant also failed to comply with the reporting condition of his bail on 15 occasions between March and May 2019. On 22 May 2019, the prosecution successfully applied to the Melbourne County Court for revocation of his bail. The applicant was unable to be located at either of his previous bail addresses.
The applicant failed to appear for trial on 2 September 2019, and it proceeded against his two co-accused in his absence. Both of the co-accused were acquitted. A warrant was issued for the applicant’s arrest.
He remained at large for more than six months, while the police made every effort to locate him. On 11 March 2019, the applicant was arrested following a police response to a reported family violence incident at an address in Keilor Downs between the applicant and his then-girlfriend, Veronica Bol.[3] He was not charged with the incident in relation to Ms Bol, but was charged with possessing methylamphetamine and failing to answer bail (the ‘informant Romano matters’). He was bailed in relation to the informant Romano matters, but was remanded in custody on the informant Elliott matters.
[3]An interim FVIO was issued against the applicant on 12 March 2020, protecting Ms Bol.
On 19 June 2020, an application for bail was refused by the Melbourne County Court on the basis that the applicant had failed to establish exceptional circumstances and furthermore, on the basis that he presented an unacceptable risk if released on bail.
On 27 September 2020, the applicant was charged on summons for theft of alcohol from a bottle shop in Taylors Lakes on 9 March 2020 (the ‘informant Guler matter’). The informant Nicholson, Romano, and Guler matters are all next listed before the Sunshine Magistrates’ Court on 16 February 2021 for contested hearing, guilty plea, and mention, respectively.
The informant Elliott matter is next listed on 17 November 2020 for a final directions hearing, and the trial is listed to commence on 22 March 2021 in the County Court. It is accepted between the parties that the trial date will be vacated, and that the trial will not proceed until some time in 2022.
Background and circumstances of the alleged offending
By way of brief background, Haylee Marinkovic resided at 21 Burnewang St, Albion, and was joined from time to time by her partner, Dylan Divers, and mother, Karen Morton.
On the afternoon of 31 August 2017, Ms Marinkovic and Mr Divers were at the residence and heard a knock on the door. Ms Marinkovic saw two men outside, one of whom was holding a gun, and did not open the door. Through the peep hole, Mr Divers saw that the butt of the gun was being used to knock on the door and he reported the incident to the Sunshine Police Station.
The following afternoon, on 1 September 2017, Ms Marinkovic was outside the residence talking to her grandmother. During their conversation, Ms Marinkovic observed a red car bearing a ‘P plate’ on the back window drive by them, before stopping in the middle of the road. She called to Mr Divers. The vehicle did a U-turn and drove past them again. She observed two men inside the car whom she described as being African. The driver stared at her with what she described as, a ‘creepy smile’. Mr Divers came outside and observed a red Holden Commodore driving away.
A few hours later, at about 7:30pm that night, Mr Divers was in the kitchen when he heard a loud bang and saw the front door being kicked in. It is alleged that the applicant and a large number of unknown co-offenders entered the residence. He quickly hid in the laundry room with the lights off.
Ms Marinkovic, who was in the lounge room, also heard the loud noise. She called out to Mr Divers but heard no response. As she went to investigate the loud banging, she observed a large number of men of African appearance standing in the hallway of the house holding wooden sticks and metal poles. She noticed one male in particular who was wearing what she described as a grey, loose fitting jumper with a hood. She ran away in fright.
One of her dogs tried to bite the offender in the grey jumper,[4] but another offender struck the dog with a metal pole, causing the dog to fall to the ground bleeding from his ears and nose, and seizing. As Ms Marinkovic tried to drag her dog away to safety, she was hit by another man in the chest with a wooden stick, which snapped in half.
[4]It is alleged that this was the applicant.
While in the laundry room, Mr Divers could hear smashing noises and Ms Marinkovic screaming. He started to dial 000 when a man looked into the laundry room. However, the man did not see him and, once he left, Mr Divers fled the house and hid behind the garden shed, where he called emergency services.
Inside the house, Ms Marinkovic retrieved a homemade spear, being a wooden broom stick with a kitchen knife attached to the end, from the dining room and began jabbing the male who had struck her. Another male struck the spear and broke it. She then retreated back into the dining room and closed the door behind her. While she pressed her body weight against it, the men repeatedly kicked the door until it came off its hinges, although they did not attempt to enter the dining room.
Through the broken door, Ms Marinkovic watched the offenders. The offender in the grey jumper, along with two others holding raised weapons, asked who owned the house. She said that it was a commission house and that she did not want any trouble. Ms Marinkovic observed another offender rip her large LG-brand television off its stand before carrying it outside.
She then heard several males on the front porch yelling, ‘Let’s go’. The males ran out of the house, and Ms Marinkovic followed. She then noticed a red Commodore sedan with a ‘P plate’ parked nearby, which she believed was similar to the vehicle that she had seen drive by the house earlier that day.
At approximately 7:50 pm, police officers were dispatched in response to Mr Divers’ 000 call. A Nissan sedan, driving with its lights off, was observed by two officers a short distance away from the scene. The vehicle turned from Burnewang Street into Adelaide Street. Three occupants of African appearance were observed in the vehicle. Police observed the front passenger pull his jumper over his head upon sighting the police. Police followed the vehicle, activating their lights and siren and before intercepting the vehicle. When they approached the vehicle, as well as the three male occupants, the police observed a blue coloured steel pole approximately 1 ½ metres long sitting across the centre console area, and an LG television in backseat.
The Nissan’s occupants were arrested and identified as the two co-accused, Kabito Madut, the owner and driver of the vehicle, Baroch Baroch, the front seat passenger, and the applicant, who had been sitting in the back seat. At the time of his arrest, the applicant was noted to be wearing a grey jumper and had a bleeding injury on his left middle finger.
In his police interview, the applicant claimed that he was picked up by Madut in the Nissan in Sunshine between 7:00 and 7:30pm to attend a party, and the group were intercepted close to the party’s location. He claimed that the television was already in the car when he was collected.
On the floor inside the residence, police observed a car key for a Holden vehicle which did not belong to the complainants. Fresh blood was found in different areas of the residence, but was later determined not to be human and is instead alleged to be from the complainants’ dog.
Police received information that two men had been observed sitting in a red Holden Commodore a few houses down from the residence about 30 minutes prior to the incident. The vehicle was located by police in the same location, and the officers noted that the bonnet still felt warm. Police were able to unlock the vehicle using the key found inside the complainants’ residence. Madut admitted in his police interview that he also owned both the Commodore and the Nissan, but stated that his cousin, Jan Major, had been using the Commodore that day. Upon examination of the red Commodore, the applicant’s fingerprints were found on two external areas of the vehicle, namely, the driver’s side window and front quarter panel.
A DNA swab was taken from visible blood located on the bottom of the LG television seized from the Nissan. Analysis revealed a single-source DNA profile consistent with the applicant’s. A statistical calculation indicated the profile would be 100 billion times more likely if the applicant was the source than if he was not.
Personal circumstances
The applicant is 28 years old. He was born in South Sudan and arrived in Australia under a protection visa in 2005. He was educated to year 10 at Kealba Secondary College and Sunshine College. The applicant is a qualified bricklayer, and reportedly was previously employed by Tahir’s Bricklaying and worked up to seven days per week.
The applicant reports a history of using cannabis from the age of 16, including regular use in the lead up to his arrest, as well as heavy alcohol consumption. He also reports daily use of methylamphetamine since early 2020.
Criminal history
The applicant has a limited prior criminal history. He was found guilty of a number of offences on 12 January 2012 in both the youth and adult jurisdictions, including four charges of failing to answer bail on four separate dates.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[5] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[6], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[5]Section 4A(2).
[6]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[7] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[8]
[7][2004] VSC 17.
[8]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[9]
[9]See, for example, Re Brown [2019] VSC 751 (Lasry J).
Evidence led on the application
As well as the affidavit material filed on both sides, the Court had the benefit of sworn evidence from two witnesses.
Detective Leading Senior Constable Jacinta Elliott gave evidence about a number of aspects of the evidence against the applicant. She informed the Court of efforts made to find the applicant when he failed to attend at his trial. Had it not been for the fact of the police having been called to the address where he was then living in March 2020, the applicant, as she said, would probably still be missing. The witness expressed doubt that the applicant would remain living with his mother if bailed to reside there, and indicated that she did not think he would appear at his trial in answer to his bail.
Ms Geen Wani, the mother of the applicant, gave evidence of her preparedness to have the applicant live with her should he be released on bail, and to provide a surety of $5000. When asked why, in the past, when the applicant had departed her home, she had failed to notify the police as she had undertaken to do, she said that he had told her that her would contact his lawyer to arrange the change of address. She again provided an undertaking to contact the police should the applicant fail to comply with any conditions of his bail.
Applicant’s submissions
Ms Dwyer, for the applicant, relied upon a combination of matters in proof of exceptional circumstances and in resisting the respondent’s contention as to unacceptable risk. The matters were set out in the affidavit in support and Ms Dwyer’s oral submissions. They were as follows:
(a) Delay. The applicant’s trial will not proceed when it is currently listed, by which time the applicant will already have been on remand for 564 days. In fact, as things stand, the County Court protocols would indicate that his trial will not proceed until 2022, and whether it is early or late in the year will depend on developments where the COVID-19 arrangements are concerned. The upshot of that will be that the applicant will spend between 2½ and 3 years in custody before the trial. This would be an unacceptable period of time. Ms Dwyer took me to a number of authorities in support of the contention that a delay of this order can amount to exceptional circumstances of itself, or be a strong matter pointing to such a conclusion.
(b) Strength of the prosecution case. Ms Dwyer pointed to the fact that the two co-accused were acquitted at their trial. She submitted that the cases against them were not very different from the case which the applicant would face. It was put that the result of that trial showed the jury’s conclusion as to the limited significance of the men being arrested in close proximity to the scene of the crime, in apparent possession of the television stolen during its course. Ms Dwyer submitted that the injury to the hand of the applicant was not shown by any expert or other evidence to be the result of a dog bite, and there was an innocent explanation open for the finding of the applicant’s blood on the television. As for the presence of the applicant in the car with the television, he gave an account explaining this in his police interview. Ms Dwyer would not accept that the case could be described as ‘reasonably strong’, the term used by Mr Grant, for the prosecution. Rather, I should approach the matter on the basis that there was a real prospect of the applicant being acquitted.
(c) The limited criminal history of the applicant. There were no serious matters contained in the history, and certainly nothing approaching the seriousness of the current alleged offending.
(d) Hardship brought about by COVID-19. Ms Dwyer noted that the conditions under which the applicant is being held are onerous. There are no personal visits, meaning that he has been unable to see his young children. Educational and other opportunities are restricted. Ms Dwyer referred to a number of the cases touching on COVID-19 considerations where bail is concerned.
(e) The availability of stable accommodation. Ms Dwyer submitted that the place on offer to the applicant at his mother’s home is stable and appropriate. She relied upon the evidence of Ms Wani before me, who made it clear she would report any failure by the applicant to abide by conditions of bail.
(f) Likelihood of employment. The applicant has an offer of employment as a bricklayer. It will not be full time, but is still significant.
(g) Availability of bail support services. On this score, Ms Dwyer relied on the report of CROP[10] filed in the Court. CROP would be able to make suitable referrals which would assist the applicant to seek assessment and treatment for drug abuse and mental health issues. When on bail in the past, the applicant did not have access to such supports.
(h) The availability of a surety of $5000. The mother of the applicant was prepared to act as a surety in this matter.
[10]CISP Remand Outreach Program.
In respect of the matter of risk, Ms Dwyer submitted that there is always a risk, but that in this case, with the imposition of strict conditions, the risk of the applicant reoffending or failing to appear can be reduced to a level that is acceptable. There was not a high risk of reoffending in a serious manner, as indicated by the confined nature of his criminal history. As for the risk of failing to appear, that could be mitigated by the imposition of the surety and other conditions proposed, including the involvement of CROP. As for the supposed risk of endangering the public, Ms Dwyer submitted there was little evidence in support of that.
Respondent’s submissions
Mr Grant, relying on his written outline, which was supplemented by his oral submissions before me, asserted that the applicant has failed to establish exceptional circumstances, and in the alternative, that the applicant poses an unacceptable risk.
For reasons set out in his outline at [25], he submitted that the prosecution case against the applicant is ‘reasonably strong’. Whilst it is relevant that the co-accused were acquitted, the evidence implicating each of them was less compelling than that implicating the applicant. In their cases, unlike in the case of the applicant, there was no DNA or fingerprint evidence connecting them with the events that occurred inside the house. Furthermore, neither of them had sustained injury that was consistent with the events inside.
In respect of the matter of delay, Mr Grant did not dispute the duration of likely remand relied upon by Ms Dyer, and acknowledged that this is a significant delay. However, he submitted, the delay now in prospect arose because of the applicant’s conscious decision not to attend his trial in September 2019. Had he attended as required, the matter would have been finalised. In those circumstances, submitted Mr Grant, it was ‘a little bit rich’[11] that the applicant was now complaining about a delay which he has brought upon himself.
[11]Transcript 70.
In any event, it was submitted, this is not a case where there is a risk the applicant will spend more time on remand than he would be ordered to serve as a sentence should he be found guilty. That is so because of the objective gravity of the offending and the fact that he would be required to be sentenced to a mandatory minimum of three years’ imprisonment, in the absence of a special reason.
Mr Grant raised concerns about the suitability of the proposed accommodation of the applicant with his family, noting amongst other things that when the applicant had previously been bailed to live with his mother, she had failed to notify the informant when he stopped living at the premises. As for the surety put forward, this was of little significance in this case, in light of the fact that the mother of the applicant had previously acted as surety for the applicant, and had suffered forfeiture of $1000 as a result of his failure to appear.
On the matter of the potential impact of COVID-19, Mr Grant, by reference to the decision of Kaye JA in Re Diab,[12] outlined the applicable principles. He noted that the crisis caused by the pandemic is simply one of the surrounding circumstances for a bail decision maker to take into account in considering an application for bail.
[12][2020] VSC 196.
Mr Grant submitted that the material relied upon by the applicant was not sufficient to establish exceptional circumstances.
On the question of unacceptable risk, Mr Grant submitted that the applicant, if granted bail, would pose a significant risk of endangering the public, reoffending, and failing to appear in court for his trial. He pointed to the four prior convictions of the applicant for failing to answer bail, the failure of the applicant to attend his trial on 25 February 2019, the repeated failures to report on bail in the period March to May 2019, his failure to appear at his trial on 2 September 2019 necessitating the issue of a further warrant, and the fact that he then remained at large for six months until arrested in respect of other matters.
It was submitted that the applicant has demonstrated an unwillingness or inability to comply with strict bail conditions, and most importantly, to attend court when required to do so. The Court should have no confidence that even strict bail conditions would reduce the risk of further offending and failing to appear to an acceptable level.
Analysis
The applicant is charged with offending which is exceedingly serious. The charge of aggravated home invasion attracts a maximum penalty of imprisonment for 25 years, and, pursuant to s 10AC of the Sentencing Act 1991, a non-parole period of not less than three years unless a special reason exists. The particular example of the crime with which the applicant stands charged is especially serious, involving the violent entry of a large number of armed intruders into a home at night time, in which they terrorised and violently attacked a female with the use of a weapon, and attacked a dog in cowardly fashion. They kicked in the front door to access the premises, and in the course of trying to get to the terrified occupants of the house, kicked in two internal doors. Should the applicant be eventually found guilty, it is inevitable that he will receive a significant term of imprisonment.
One of the two main matters relied upon by Ms Dwyer in proof of exceptional circumstances concerned the strength of the prosecution case, or lack of it, as she put it. On that score, centrally, Ms Dwyer pointed to the fact that the two co-accused were acquitted at their trial. She submitted that the cases against them were not very different from the case which the applicant would face. As set out earlier, she focussed on a number of aspects of the evidence against the applicant, and submitted that when looked at in its totality, the prosecution case was such that there would be a real prospect of the applicant being found not guilty. As I have indicated, Mr Grant took issue with the way in which the prosecution case was characterised by Ms Dwyer, and submitted that the case should be viewed as being ‘reasonably strong’.
The case pointing to the guilt of the accused is a circumstantial one. Notwithstanding the acquittal of the two co-accused, whilst acknowledging that the acquittal of any charged person, including the applicant, by a jury is always possible, I consider that Mr Grant’s description of the strength of the prosecution case is a realistic one. Whilst it is not necessary for me in so concluding to ponder in any detail the differences between the evidence against the two co-accused, on the one hand, and the evidence against this applicant on the other, the fact remains that I expect the applicant to be in a worse position than them when it comes to his trial. His blood was found on the television set stolen during the crime. He had the television set with him in the rear of the vehicle. His explanation for being found in that situation may be considered far-fetched. He had an injury to his finger which may have been consistent with his having been injured during the course of the crime. His finger prints were found on the exterior of the red motor vehicle which was observed in the street some time before the crime, and the keys of which were clearly dropped by one of the offenders inside the house. He was wearing clothing similar to that being worn by one of the men inside the house. He was found in a motor vehicle driving along the very street in which the home invasion occurred within a relatively short time of the crime. Also in the vehicle was a weapon consistent with being one of the weapons used during the course of the crime.
I am required to consider for myself the strength of the prosecution case. Notwithstanding the decision by the jury in the trial of the co-accused, which looked at from afar, may be considered to be a generous one, I have reached the view that the prosecution case cannot be considered, for present purposes, to be anything less than reasonably strong.
Turning to the second of the two main matters relied upon by Ms Dwyer in support of bail, that is, the question of delay, the involvement by the applicant in the cause of that delay is, to my mind, very significant. Were it not for his conduct in deliberately failing to appear at his trial in answer to his bail, this application for bail would not have been necessary. He would have stood trial in September last year, many months before the COVID-19 pandemic had reared its head and cut a swathe through the workings of the criminal justice system. I accept the submission of Ms Dwyer that the fact that he largely brought about the delay himself by his own actions is not determinative of the question of the force of the input of delay in this matter, but in my view, it would make no sense at all to consider the question of delay without it being borne in mind that the applicant had his opportunity for a timely trial, and consciously turned his back upon it.
I do take the likely delay into account, but its importance amongst the considerations relied on in proof of exceptional circumstances is tempered by the applicant’s involvement in bringing about the delay.
Insofar as the indications are that the applicant, should bail be refused, may well spend 2½ to 3 years on remand, that would clearly be a long period on remand, which in some cases would be a very powerful matter in support of bail. In this case, however, even that period would not exceed the sentence of imprisonment the applicant would be likely to receive should he be found guilty.
In respect of the criminal history of the applicant, I accept that it is limited, but it does include four separate findings of guilt for failing to answer bail, albeit that these occurred when the applicant was still young.
Of far more importance is the response of the applicant to being on bail in the current matter. His conduct, which includes, most importantly, his failure to attend the County Court in answer to his bail on 25 February 2019, and his later failure to attend his trial on 2 September the same year, when he knew he was to stand trial, shows that, even as a mature person, the applicant had absolutely no respect for the strictures and requirements of bail. He deliberately ignored the central requirement of bail to attend court when required. He also, seemingly, ignored conditions of bail requiring him to report at a police station, and reside where he had been told.
As for the personal circumstances of the applicant, including his home environment, there is nothing to indicate that these would be sufficient to ensure compliance with the requirements of bail. The support of his mother, including as a surety, has not achieved that in the past, and there is no reason to suppose, despite her best intentions, that anything would be different in future. Furthermore, the accommodation on offer, in a home in which some disruption would be caused in order for him to have a room of his own, is not ideal.
As for the availability of CROP support, there is little information before the Court about the drug and mental health issues of the applicant. There is nothing to suggest that the applicant is actually in need of support in respect of those matters, or to indicate that the provision of such supports would reduce the risk of the applicant failing to abide by the requirements of his bail.
In respect of the onerous nature of custody as a result of arrangements made to prevent the spread of COVID-19 within the custodial setting, which arrangements, it must be noted, have been extraordinarily successful in achieving precisely that, I have taken these matters into account as part of the overall material, consistent with the authorities.
Having carefully considered all of the matters relied upon in support of proof of exceptional circumstances in this case, I think they fall well short of proving that exceptional circumstances exist in this case that justify the grant of bail. For that reason, it would be necessary for bail to be refused.
For completeness, I can indicate that even had I been of a different view, I would have concluded that there was an unacceptable risk of the applicant endangering the community, reoffending, or failing to answer bail. On the first score, the offending with which he is charged, in respect of which I have concluded the case is reasonably strong, is violent and of great concern to the community. The applicant has only very modest prior convictions, but they do contain some indications of violent offending. As for the risk of failing to answer bail, which is clearly the main concern in this case, the proven conduct of the applicant in deliberately ignoring his bail and absconding when he knew he was meant to be standing trial on these offences is about as strong an indicator as possible as to his likely future conduct. The risk of the applicant again failing to answer bail should he be released from custody would very high, and unable to be ameliorated to any significant extent even by the imposition of the most stringent of conditions. For those reasons, also, it would necessary for bail to be refused.
Conclusion
For the reasons stated, this application for bail must be refused.