Re Lowe
[2020] VSC 584
•11 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0207
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by CHRISTOPHER LOWE |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 September 2020 |
DATE OF JUDGMENT: | 11 September 2020 |
CASE MAY BE CITED AS: | Re Lowe |
MEDIUM NEUTRAL CITATION: | [2020] VSC 584 |
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CRIMINAL LAW – Bail – Charges including armed robbery, theft, burglary, and committing an indictable offence whilst on bail – Handgun allegedly used in armed robbery – Applicant on two grants of bail at time – Significant criminal history, including breaches of court orders – Trial not likely to be heard for almost three years – Compelling reason established – Whether suitable accommodation available to applicant – No formal bail support – Lack of stability in proposed arrangements - Unacceptable risk – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4C(1A), 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H Roberts | Cahills Barristers & Solicitors |
| For the Respondent | Ms D Caruso | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges he faces of armed robbery, theft (four charges), burglary, obtaining property by deception (two charges), possessing methylamphetamine, committing an indictable offence whilst on bail, and fraudulently altering a registration label.[1]
[1]The Court was informed by the respondent during the hearing that it is proposed that the applicant will be charged with possession of counterfeit money.
It is common ground between the parties that because the applicant faces two charges contained within Schedule 2 of the Bail Act 1977 (‘the Act’), I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
Procedural history
The applicant was charged with the above offences and remanded in custody on 13 December 2019. He has remained in custody until the present time. He made an application for bail in Melbourne Magistrates’ Court. On 3 June 2020, bail was refused by a magistrate on the basis that the applicant had failed to establish a compelling reason, and further, because there was an unacceptable risk the applicant would commit an offence whilst on bail or endanger the safety or welfare of the public.
Other outstanding matters
The applicant is alleged to have committed the theft of a towbar from a business in Bendigo on 20 December 2018 (Informant Boucher). He is also alleged to have arranged to buy an Apple iPhone for $1500 through Facebook Marketplace. Upon meeting the seller and taking possession of the phone, he ran away without paying for it (Informant Simpson). The applicant was charged with both charges of theft on summons on 8 August 2019 and required to appear in the Bendigo and Ballarat Magistrates’ Courts, respectively. He subsequently failed to appear and warrants for his arrest were issued. The warrants were executed on 23 November 2019 and the applicant was granted police bail on both matters. He was subject to those grants of bail at the time of a number of the offences now alleged against him.
In addition, the applicant was charged on summons on 31 March 2020 with obtaining property by deception, namely, an Apple iPhone, on 25 November 2019. Again, he is alleged to have contacted the seller on Facebook Marketplace. Upon meeting the seller in Hawthorn and negotiating a price with him, the applicant showed the seller details of a bank transfer receipt, and was provided with the phone. The seller never received payment for the phone.
Alleged offending
The current allegations against the applicant primarily involve him stealing Apple iPhones, either from sellers he met through Facebook Marketplace or by other dishonest means. In one instance, the applicant is alleged to have pointed a firearm at the complainant in the course of robbing him.
The first incident
Between 1 and 2 September 2019, the applicant used a Facebook profile in the name of ‘Kipper Lowe’ to contact the complainant, a 17-year old male, regarding an Apple iPhone XS Max advertised for sale on Facebook Marketplace. On 3 September 2019, the applicant drove a silver Ford Territory (registered to his partner) to the complainant’s residence in Ferguson Drive, Tarneit. He parked several houses away from the complainant’s residence and had him walk to the vehicle with the phone. The complainant recognised the applicant as the same person depicted in the profile picture of the Facebook account with which he had been interacting. The applicant directed the complainant to pass the phone through the window of the vehicle for inspection and, when the complainant complied, allegedly wound up the window and drove off without paying for the phone.
The second incident
On 24 September 2019, the applicant allegedly attended a residence in Footscray in a blue utility vehicle and impersonated a tradesperson to gain access to the property. He pretended to grout the bathroom for a short period before taking an Apple iPhone XS that the occupant of the property had left in the study area. He is alleged to have later sold the phone at Prahran Cash Converters for $550.
The third incident
On 16 November 2019, the applicant, through a Facebook profile named ‘Kip Lowe’, arranged to buy an Apple iPhone XS Max from the complainant, a 17 year old female. The following day, he allegedly met with the complainant at a KFC carpark in Altona Meadows. She observed him exiting the driver’s seat of his vehicle and handed him the phone inside its box so he could insert his SIM card into the phone and confirm it was in working order. The applicant is alleged to have then put both the box and phone inside his vehicle and driven off without paying the complainant.
The fourth incident
On 4 December 2019, the applicant allegedly met with two people at Cardinia Road Railway Station in Pakenham regarding the purchase of an Apple iPhone X advertised for sale on Facebook for $800. He communicated with the sellers through a Facebook profile in the name of ‘Christopher James Murdock’ which displayed a profile picture of a Protective Services Officer’s name badge bearing the name ‘Chris Lowe’. The applicant allegedly arrived in a silver Ford Territory bearing number plates ‘1UW1SR’, which are not recorded in the VicRoads database. The registration of his partner’s vehicle, a silver Ford Territory, is ‘1GW1SR’.
Upon arriving at the station, the applicant did not exit the vehicle and waved one of the complainants over. The complainant passed the phone to the applicant through the driver’s side window and accepted a wad of banknotes in return. The applicant then immediately sped away in his vehicle.
On inspecting the bundle of banknotes, the complainant observed that the first banknote was a genuine $50 note, while the rest were $5 notes that had been altered to appear yellow in colour. The banknotes totalled $160.
The fifth incident
At 8:25 pm on 8 December 2019, the applicant allegedly met with the complainant, a 33 year old male named John Lindsay-Field, at the McDonald’s in Point Cook regarding an Apple iPhone Pro 11 that the complainant’s partner was advertising for sale on Facebook Marketplace. He allegedly arranged the meeting using a Facebook profile in the name of ‘Glen Lowe’. The applicant arrived at the McDonald’s in the Ford Territory and parked next to the drive-through area. The complainant approached the driver’s side of the applicant’s vehicle and handed him the phone through the window. The applicant allegedly gave the complainant fraudulent banknotes with his left hand and pointed a dark-coloured Glock Gen 5 handgun at the complainant with his left hand, stating ‘I’ll be taking that’. The complainant observed the words ‘Gen 5’ engraved on the right side of the firearm. The applicant then left the carpark.
Immediately after the incident, the complainant wrote down the engraving that he had seen on the firearm and later gave this information to police.
The sixth incident
On 11 December 2019, the applicant allegedly met with the complainant, a 32 year old female, in relation to the purchase of an Apple iPhone XR that she was selling via Facebook Marketplace. On that occasion, he used a Facebook profile in the name of ‘Christopher’, with a profile picture of a Protective Service Officer’s vest with the name tag ‘Chris Lowe’. He attended her residence in Dillon Street, Braybrook in the Ford Territory, and spoke to her at the front door. He exchanged an envelope containing counterfeit money for her iPhone, before returning to his vehicle and driving off at speed.
Personal background
The applicant is 35 years old. He has been in a relationship with Marnie Steed for approximately one year. The couple have one son, born on 29 May 2020, whom, as a result of his incarceration, the applicant has not met. It was asserted in the affidavit in support that the applicant acted as stepfather to Ms Steed’s two other children, aged 4 and 6 years old, before his remand.
The applicant is a trained glazier and shopfitter, who commenced working in his father’s business in Swan Hill in 1999. After a period living and working in Melbourne in 2002, he returned to Swan Hill and assisted to restore profitability to the family business. His relationship with his father and brother broke down after his father effectively forced him out of the business, although he maintains a good relationship with his mother.
The applicant was self-employed thereafter, until he suffered a prolapsed disc in 2018 that rendered him unable to work. He reports this injury is ‘feeling better’ at present.
Criminal history
The applicant has a significant criminal history, commencing with a conviction in this Court in 2004 for reckless conduct endangering life. The applicant, who was then aged 19, received a sentence of 18 months’ detention in a youth training centre for that charge. I was informed that this offending involved the driving of the applicant exposing his then-partner to the risk of death. The sentence is indicative of the considerable seriousness of the crime, about which I received no more information.
The applicant was next convicted in 2013 for assault by kicking and resisting arrest, for which he was fined. I was informed the assault charge was against his domestic partner.
In May 2014, the applicant was convicted for the first time of contravening a family violence intervention order (‘FVIO’). That was the first of four occasions on which the applicant was convicted of contravening an FVIO or an interim personal safety intervention order in the ensuing years, with conviction entered on seven separate charges. In addition, he accrued convictions for burglary, theft, dealing with the proceeds of crime, possession of a drug of dependence, failing an oral fluid test, possession of dangerous articles and prohibited weapons, hindering police, driving whilst disqualified, contravening a community correction order (‘CCO’) and failing to answer bail. On my calculation, there were no fewer than ten separate court dispositions. As well as the custodial sentence he received as a 19 year old, the applicant was imprisoned for 11 days in 2014. The CCO which was later the subject of breach proceedings had a condition requiring him to submit to assessment and treatment for drug abuse or dependency.
The applicant claims that his offending since 2014 occurred in the context of the breakdown of his relationship with his father and brother, which included his father obtaining an FVIO against him. He reports that the burglary charges from around that time arose from him seeking to retrieve his tools from the premises of the family business.
The law
In applying and interpreting the Act, the Court is required to have regard to the guiding principles set out in s 1B of the Act, which include a recognition by Parliament of the importance of matters including maximising community safety to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act dictates that a person is entitled to be granted bail ‘unless the bail decision maker is required to refuse bail by this Act’. In a number of situations set out in the Act, the law dictates that bail must be refused unless the bail decision maker is satisfied of the existence of either exceptional circumstances or a compelling reason that would justify the grant of bail.
The compelling reason test applies in this case. Pursuant to s 4C(1A) of the Act, the Court is required to refuse bail unless ‘satisfied that a compelling reason exists that justifies the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of a compelling reason. In considering whether a compelling reason exists, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of a compelling reason, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
i. endanger the safety or welfare of any person; or
ii. commit an offence while on bail; or
iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or
iv. fail to surrender into custody in accordance with the conditions of bail.
The respondent would bear the burden of proof in respect of the unacceptable risk test if that test arises for consideration. In considering the test, again, the Court would be required to take into account the surrounding circumstances pursuant to s 3AAA. The Court would also be required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
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:[2]
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.[3]
[2][2019] VSCA 214.
[3]Ibid [43].
The evidence
The respondent Detective Senior Constable Ostrowsky gave sworn evidence before me. He stated that he believed the applicant had been living with Ms Steed at the time of his arrest, on the basis of police surveillance carried out in the lead-up to the arrest, and items found in the house and car of Ms Steed. He provided some information about the fact of the children of Ms Steed having been removed from her care. In the case of her youngest child Anakie, of whom the applicant is the father, the Department of Health and Human Services (‘DHHS’) took out a protective order shortly after his birth, imposing requirements and restrictions on her conduct, including requiring her to provide drug screens. As a result of a breach, the child was taken into care. The respondent was cross-examined at length about a number of matters including the basis of his belief that the applicant had been living with Ms Steed, the strength of the prosecution case, particularly on the charge of armed robbery, and his belief that the applicant’s offending had been escalating in seriousness. He also attested to the fact that a number of the victims of the crimes had indicated their fear of the applicant in connection with a grant of bail, especially in view of the fact that he knew the addresses of a number of them.
Marnie Steed, who described herself as the partner of the applicant, also gave evidence before me. She said that she is an advanced child protection practitioner in Ballarat, employed, as I understand it by DHHS. She said that she met the applicant in July last year. Whilst he had spent some time with her at her house, he had not lived with her, residing instead in Maryborough. She had no knowledge of his criminal history until he was arrested, and no knowledge that he had been offending whilst in a relationship with her. She denied knowledge of the counterfeit money, drugs and other items found by police in her house and vehicle. She admitted having permitted the applicant to use her vehicle at his request. In the period before his arrest, the applicant had spent time with her and her two children from a previous relationship. Those children were removed from her care on 25 May 2020 and are now living with their father. She had only seen them on two occasions in June since their removal from her. She stated that her son Anakie had been born on 29 May 2020. Anakie, also, had been removed from her care, so she now lives alone. One of the things behind the removal of Anakie from her care was the Department concern that she was engaging in substance misuse. The applicant has had no contact with Anakie, and indicated that he felt no connection. He was emotional about the matter. Ms Steed indicated that she would do all she could to ensure the applicant does the right thing if granted bail. She said she would definitely benefit if he was living with her and able to share the load in her efforts to regain the care of her children.
The applicant’s submissions
Mr Roberts, for the applicant, relied upon a combination of matters in proof of a compelling reason in justification of bail. These were set out in the affidavit in support of bail, and in the oral submissions of Mr Roberts. The matters were as follows, with the first three of these being the ones principally relied upon:
a) Delay. It was submitted that on the basis of the Revised Relisting Schedule of Melbourne Criminal Trials recently published by the County Court, the trial will not be heard until at least the 3rd term of 2022, and possibly as late as the 1st term of 2023, a very long delay in view of the likely sentence should the applicant be found guilty.
b) The strength of the prosecution case. Mr Roberts submitted that the case on the two most serious charges, those of burglary and armed robbery, is relatively weak. Focussing in particular on the armed robbery charge, Mr Roberts pointed to what he submitted were some anomalous and implausible aspects of the account of the victim of that crime. I will not set out the details of these submissions, but I have taken them into account.
c) The birth of the applicant’s child and the need of his partner for his assistance and support. The applicant commenced a relationship with Marnie Steed in July 2019. She fell pregnant to him and gave birth to a son Anakie on 29 May 2020. The applicant having been in custody since December, and Anakie having been taken into the care of DHHS upon his birth, the applicant has had no contact with his son. In addition, Ms Steed’s two other children to a different partner have also been removed from her care. Ms Steed would be greatly assisted by the presence of the applicant. In addition, it would be very desirable for the applicant to be out of custody so that he may pursue attempts to commence contact with his son.
d) Seriousness of the alleged offending. Mr Roberts submitted that, other than the armed robbery, the crimes alleged, viewed objectively, are not very serious. None of the complainants with the exception of the victim of the alleged armed robbery was placed in fear or described the applicant as having behaved aggressively.
e) The criminal history of the applicant is not extensive. It comprises only ten court outcomes, it was submitted, with the majority resulting in fines, with one youth training centre disposition, and one short term of imprisonment. Mr Roberts disputed that the criminal record of the applicant could be said to disclose a history of violent offending, and disputed that the current offending represented an escalation in the seriousness of his offending, in light of the fact that after the alleged armed robbery, there was another crime of dishonesty not involving the use of a firearm.
f) The likely sentence if found guilty. It was submitted that for any of the charges other than armed robbery, the time the applicant has already spent on remand would exceed any sentence he receives. As for the armed robbery, it is likely that the period on remand pending the trial would exceed the sentence he would receive even for that crime.
g) The availability of suitable accommodation. It was proposed that the applicant would reside with Ms Steed in Wendouree. It was submitted that the residence of the applicant with Ms Steed, together with the birth of their child and the possible presence of the other two children, might in fact act as protective factors for the applicant.
Mr Roberts submitted that the period of time the applicant has spent on remand has had a salutary effect upon him. The birth of his child while he was in custody, and the fact he has been unable to have any contact with Anakie, are also significant matters. Mr Roberts relied upon the relatively small number of convictions for violence. Whilst there had been a number of charges of breaching FVIOs, these were in the context of the ongoing family breakdown. It was not known whether any of these involved any actual violence. Whilst the apparent breaches in the past by the applicant of court orders, the prior conviction for failing to answer bail, and the fact the current alleged offending occurred while he was on bail, would raise a substantial concern about whether he would be willing to comply with the conditions of bail, the nine months the applicant has now spent in custody, and the other circumstances, meant that the risk posed by him could be ameliorated so as to be acceptable by the imposition of stringent conditions.
The respondent’s submissions
Ms Caruso, for the respondent, relied on her submissions in Court and upon the contents of the affidavit in response, to which a report of the respondent was exhibited. Ms Caruso began by reminding the Court of the terms of s 1B of the Act. She took me through the matters contained in s 3AAA, starting with the seriousness of the offending. In that regard, she pointed out the high maximum penalty for armed robbery, and noted that the use of a firearm in this case was an aggravating feature.
Ms Caruso described the prosecution case as being a reasonably strong one.
As for the criminal history of the applicant, this was extensive, with convictions for an array of offences, including violent offences.
The applicant has a prior conviction for failing to answer bail, and was on two grants of bail at the time of the current alleged offending. He only stopped offending when he was apprehended and taken into custody. Furthermore, he has a history of breaching FVIOs, breaching a CCO, and driving whilst disqualified. All-in-all, he has, submitted Ms Caruso, ‘an extreme history of failing to abide by court orders’.[4]
[4]Transcript 119.
As to his personal circumstances, and the proposed home environment, Ms Steed clearly has her own personal issues to attend to. All three of her children have been removed from her, and her evidence should leave the Court in doubt that she would be able to do anything to reduce the applicant’s risk of reoffending. The proposed residence would be far from a satisfactory one.
Ms Caruso submitted that I should take into account the fact that a number of the victims of the applicant have expressed fears about him, in circumstances where he knows where they live.
Ms Caruso described the likely delay before trial as being ‘concerning’.[5] It was ‘debatable’ whether the period on remand would exceed the likely sentence upon conviction for armed robbery, but nonetheless, it was a significant delay in prospect. She acknowledged that in some cases, one of which, Re Application for Bail by Biba,[6] she drew to my attention, courts have held that delay of the order of that likely here may itself may be sufficient to prove exceptional circumstances or a compelling reason.
[5]Ibid 120.
[6][2020] VSC 536.
Ms Caruso made it clear that she was principally focussing upon the question of risk. On that score, the risk was clearly unacceptable. No bail support program had been put forward, and the residential address proposed for the applicant was unsatisfactory, in light of the challenging position of Ms Steed. She would not be able to reduce the risk of his reoffending. The pattern of offending by the applicant over the years was concerning, as was the fact that he had breached a number of undertakings and other court orders. He was on two grants of bail at the time of the current offences, and yet was undeterred from continuing to offend, with the seriousness of the offending escalating. Furthermore, he had had access to a pistol which was still outstanding. This was concerning in light of his history of some violence.
Analysis
Of the three matters principally relied upon by the applicant in proof of a compelling reason that would justify the grant of bail, there is no question that the prospective delay is by far the most weighty.
The attack mounted on the strength of the prosecution case was not, to my mind, effective, at least insofar as how I should view the strength of the case for the purposes of this bail application. The attack focussed on the two most serious charges, the burglary and the armed robbery, but mainly on the latter charge. As I pointed out to Mr Roberts during the application, it seems to me that the case on the armed robbery will hinge on the credit of the victim of that alleged crime. No issue was raised as to the identity of the offender who relieved Mr Lindsay-Field of his mobile phone, or as to the fact of that theft having occurred. What will be in issue is whether or not the offender raised and pointed a handgun at the victim. As things stand, some months as it still is before the committal hearing will proceed, all the Court has to go on is the statement of Mr Lindsay-Field, which was tendered as Exhibit A on the application and which I have read. On the face of it, Mr Lindsay-Field’s account was a cogent and reasonable one, apparently assisted by some notes he wrote down on a piece of paper immediately after the event. In the statement he made within hours of the crime, he clearly told the police that the offender raised and pointed a gun at him. As I see it at this time, whilst there may potentially be room for mistake or doubt as to the precise make and type of handgun, there would seem to be little room for uncertainty or mistake as to the production of the handgun in such close proximity to the victim of this alleged crime. If Mr Lindsay-Field is considered to be a witness of truth by the eventual tribunal of fact, then the case of armed robbery against the applicant would seem to be a strong one. I do not accept Mr Robert’s assertions to the contrary.
As to the third main matter relied upon in proof of a compelling reason, that is, the birth of the child of the applicant in May 2020, and the need of the partner of the applicant, Ms Steed, for his support and assistance during the months to come, with all due respect, and indeed, sympathy for the position of Ms Steed, she has never, in any real way, had that support and assistance. On her account, which I must say, in this respect, I found to be questionable, the applicant has never lived with her. They have only known each other for a little more than a year, and for most of that time, the applicant has been in custody. He has apparently had no contact at all with their child. As for Ms Steed, she is no longer caring for their child. Anakie has been removed from her care by an order of the Children’s Court, based in large part on her alleged unsuitability to care for her child at this time. Ms Steed is apparently in employment, and lives quite close to her mother in Wendouree. In all of these circumstances, the desirability of the applicant being free on bail to provide support and assistance to Ms Steed cannot be viewed as being an important matter going towards the proof of a compelling reason in this case.
That takes me to the first and main matter relied upon in the application, that is, the delay which is likely before the trial of the applicant for the charge of armed robbery would proceed. On the estimates that have been given to me, even taking a relatively optimistic approach to its calculation, the delay would be likely to approach three years. On the slightly more pessimistic approach represented by the second of the models recently released by the County Court, the delay may exceed three years. On any view, a delay of the order of either of those calculations would, as fairly conceded by Ms Caruso, be concerning. The authorities note that in some cases, a prospective delay will be so inordinate and unacceptable as to itself amount to exceptional circumstances or a compelling reason. I think that is the situation here. That is not to say, of course, that I would simply look at the delay in isolation. I must look at the delay in the context of all of the other circumstances, including the fact that, whilst the applicant is charged with serious offending, it is not so serious as to necessarily warrant a very substantial term of imprisonment as would be the case with other, even more serious crimes.
I am moved to conclude that in the circumstances of this case, the applicant has discharged the onus resting on him of proving that a compelling reason exists that justifies the grant of bail. I therefore move to the second step in the two-step process of bail. I observe that the second step in that process was the particular focus of the respondent in the application.
In respect of the question of risk, Mr Roberts realistically conceded that there was no doubt that the risk posed by the applicant was a ‘reasonable and identifiable’ one. In considering the risk, I of course am required to take into account all of the surrounding circumstances. Some of the circumstances which may have paled in importance relative to the great significance of delay during the first step, assume a great deal of weight when I ponder whether the respondent has discharged the onus resting on him of proving an unacceptable risk.
I note that the offending alleged against the applicant shows a combination of dishonesty, an inclination to deceive, and a willingness to resort to a significant crime of violence, namely, an armed robbery committed with the use of a handgun. This offending occurred against the background of a serious history of criminality over a number of years, including convictions for crimes of violence, dishonesty, and a number of other offences. The prior criminal history raises serious concerns as to the willingness of the applicant to not only comply with the law, but to abide by orders of courts. His criminal history cannot realistically be dismissed as simply flowing from the previous breakdown in his familial relationships. His offending has gone on for too long, and with too great an array of offending to be characterised thus.
In the lead-up to some of the current offending, including the serious charge of armed robbery, the applicant was granted bail in respect of two separate incidents of dishonest offending. That his offending would then simply continue, seemingly unabated, culminating in the serious crime of armed robbery with which he is charged, is very concerning, as is the fact that the firearm allegedly used in the armed robbery has not been recovered.
Ms Steed’s residential address in Ballarat, and the relationship with her, was advanced by Mr Roberts as an appropriate situation into which the applicant could be released on bail. I cannot accept that that is so. This could be best described as still a fledgling relationship. In the short span of the relationship before the incarceration of the application, Ms Steed was moved to contact the police and make a complaint about the conduct of the applicant, as indicated in the report of the respondent at page 10. Ms Steed has a number of challenges before her which have little to do with the applicant. Ms Steed has not known the applicant for long, and if her ignorance of his substantial criminal history and what was occurring in his life in the months before his arrest are any indication, she does not know him well. She would hardly be in a position to provide any supervision or much support to him. It seems to me that were the applicant to be bailed to her home, it would be a very unstable and undesirable situation into which to deposit him.
It is very common in bail applications for a stable home environment and professional bail supports to be on offer, such as may give the Court some comfort that the prospective recipient of bail would be closely monitored and strongly supported in a structured and consistent environment, which may substantially reduce the risk of a failure to comply with bail conditions. That, to my mind, would not be the situation for the applicant should he be bailed at this time in the current circumstances. There is no promise of real stability in the proposed home environment of the applicant. No job is on offer. No formal bail supports are in place. No drug treatment is in prospect. There is simply no reason to suppose that the applicant would be willing and able at this time to comply with the strictures of a grant of bail, the most important of which, of course, would be the requirement that he not breach the law. Should he continue with the conduct manifested by him over the last few years, I consider that there is a real risk of the community being endangered.
I acknowledge again the fact that the likely period of time on remand should bail not be granted to the applicant is certainly inordinate, and highly significant. Of course I take that matter strongly into account in considering the question whether the respondent has proved that the risk posed by the applicant is unacceptable.
In the end, after anxious consideration, I have decided that the respondent has discharged the onus resting on him. I am satisfied that as things currently stand, there is a risk that the applicant, if released on bail, would endanger the safety or welfare of the community, or commit an offence while on bail, and that that risk cannot be mitigated sufficiently by any conditions I could impose.
That is not to say that the circumstances may not change in future, such that a further application for bail may be warranted, and the obvious risk posed by the applicant may be able to be sufficiently ameliorated by the imposition of strict conditions so as to reduce the risk he poses to an acceptable one.
Conclusion
For the reasons stated above, this application for bail must be refused.
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