Re Mazzitelli
[2020] VSC 288
•19 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0095
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by FRANCESCO MAZZITELLI |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2020 |
DATE OF JUDGMENT: | 19 May 2020 |
DATE OF REASONS: | 21 May 2020 |
CASE MAY BE CITED AS: | Re Mazzitelli |
MEDIUM NEUTRAL CITATION: | [2020] VSC 288 |
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CRIMINAL LAW – Bail – Family violence offences and attempting to pervert the course of justice – Some criminal history including convictions for failing to answer bail and breaching conditions of bail – Bail granted and revoked on two previous occasions in this case – Continuing use of illicit drugs by applicant in breach of conditions of bail – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Brennan | Emma Turnbull Lawyers |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail in respect of a number of charges contained on an indictment filed against him. The charges were of intentionally causing injury (3 charges), common assault (8 charges), making a threat to inflict serious injury (2 charges), attempting to pervert the course of justice (2 charges) and being a prohibited person in possession of an imitation firearm (2 charges).[1]
[1]The indictment indicated there were two charges of this offence, although only one was contained in the Summary of Statement of Offence. Both charges in the indictment were dated 18 September 2018. The body of the indictment was numbered incorrectly, showing two charges numbered as ‘14’. The Summary of Prosecution Opening referred to two events which could have been the subject of an offence of being a prohibited person in possession of an imitation firearm. One event took place on 10 September 2018 when the applicant allegedly pointed a gun at the complainant before threatening her. The other occurred on 18 September 2018 when an imitation firearm was found during the execution of a search warrant at the home of the applicant.
It was agreed between the parties that bail was required to be refused unless the applicant could demonstrate that exceptional circumstances existed that justified his release on bail. This was so for a number of reasons as set out in the affidavit in response to the application for bail. I need not refer to these now.
Having heard the application, I determined that the applicant had failed to discharge the onus resting upon him of establishing exceptional circumstances. Furthermore, I was of the view that even had the applicant succeeded in discharging the above onus, I would have concluded that the respondent had proved that the risk posed by the applicant of reoffending or endangering the community if released on bail would be unacceptable.
I therefore refused the application for bail. I indicated at the time that I would publish my detailed reasons for the decision at a future time. These are those reasons.
Procedural history
The procedural history of this matter could be well described as ‘tortuous’. It includes the following:
· 2 August 2018 – Applicant placed on a 12 month community correction order (‘CCO’) for failing to answer bail (3 charges) and theft.
· 7-8 September 2018 – Informant Sandhu arrested and charged the applicant with unrelated offences of possession of morphine, possession of two flick knives, and driving whilst suspended. Released on bail by police.
· 18 September 2018 – The respondent Senior Constable Pert (‘Pert’) charged the applicant with the bulk of the offences (‘Pert matters’). The applicant was remanded in custody.
· 18 October 2018 – Pert charged the applicant with two charges of attempting to pervert the course of justice.
· 30 October 2018 – Bail granted at Melbourne Magistrates’ Court on Pert matters. Applicant bailed to reside with his sister, Angelina Mazzitelli.
· 9 November 2018 – Informant Norris charged the applicant with failing to comply with the CCO imposed on 2 August 2018.
· 5 February 2019 – Applicant is alleged to have committed family violence offences against his sister Angelina. Charges later withdrawn when sister provided statement of no complaint. Active family violence intervention order (‘FVIO’) still in place, expiring 31 July 2020.
· 5 March 2019 – Bail revoked on Pert matters at Heidelberg Magistrates’ Court.
· 11 April 2019 – Final full no-contact FVIO made at Heidelberg Magistrates’ Court naming Melanie Pound, complainant in Pert matters, as protected person. Order expires on 10 April 2024.
· 5 September 2019 – Bail granted on Pert matters at County Court. Bail included condition to comply with all lawful directions of Amanda Brown, drug and alcohol counsellor, in relation to assessment, testing and treatment for drug and/or mental health issues.
· 17 December 2019 – Amanda Brown sent an email to Pert detailing the contact she had had with the applicant following the above grant of bail. Ms Brown indicated that there were four occasions on which the applicant had failed to attend appointments as required. The first of these was on 19 September 2019, only two weeks after the grant of bail.
· 21 January 2020 – Applicant arrested and charged with contravening a conduct condition of his bail and remanded in custody. This arose from his failure to attend appointments with Ms Brown on four occasions between September 2019 and November 2019. He also provided three positive urine screens for methylamphetamine.
· 22 January 2020 – Crown applied to revoke bail on Pert matters at County Court. Adjourned to permit time for defence to file application to vary bail.
· 31 January 2020 – Application to revoke bail adjourned to 21 February 2020. Bail varied to increase reporting conditions and insert conditions that the applicant not use any drugs of dependence and submit to spot testing for illicit drug use.
· 20 February 2020 – Letter sent by Amanda Brown to Pert stating that the applicant had provided a sample on 12 February 2020 which was positive to methylamphetamine, and had admitted drug use.
· 21 February 2020 – Bail revoked on Pert matters at County Court and applicant remanded in custody.
· 27 March 2020 – Applicant charged by Pert with contravening conditions of bail through drug use. Matter next listed on 1 October 2020 for mention at Heidelberg Magistrates’ Court.
· 24 April 2020 – Bail refused in County Court on basis of unacceptable risk.
The alleged offending
The applicant commenced a relationship with the complainant in November 2017. The relationship continued until September 2018 with a number of separations and reconciliations in that time. From February 2018, there were a number of instances of violence by the applicant towards the complainant.
On 25 February 2018, the applicant became angry because his dog had eaten a chicken that he had bought for dinner, following which he allegedly used a chain like a whip to hit the complainant. This caused bruising to the complainant’s hip.[2]
[2]Charge 1 – recklessly cause injury.
On 3 March 2018, the complainant was sitting in the front passenger seat of the applicant’s car while he was outside talking to his friends. When the complainant asked whether they were going, he allegedly pushed her out of the car causing her to graze her knees and palms. During this incident, he said words to the effect of ‘get out of my fucking car and walk, you whore’.[3]
[3]Charge 2 – common law assault.
On 31 March 2018, the two began to argue, during which he allegedly picked up a grinder and yelled ‘stay the fuck out of Lalor or I’ll cut your hands off’.[4] The complainant did not think that he would carry out the threat but she was frightened.
[4]Charge 3 – threat to inflict serious injury.
On 12 June 2018, the applicant took the complainant’s mobile phone, after yelling at her about it. He allegedly then threw a bedside table across the room, which had a burning candle on it. Hot wax from the burning candle splashed on the complainant’s hair, face and right arm.[5] When the complainant refused to leave the applicant’s house without her mobile phone, he allegedly grabbed her by the shoulders, pushed her towards the front gate and tasered her.[6] The complainant got up after being tasered, at which point it is alleged that the applicant shoved her out of the front gate and locked it behind her.
[5]Charge 4 – common law assault.
[6]Charge 5 – common law assault.
At the end of June 2018, after a period of separation, the complainant moved back in with the applicant but he was verbally abusive towards her most days. On 3 July 2018, the complainant found out that she was pregnant to the applicant.
On 14 July 2018, during an argument in the applicant’s car, he allegedly grabbed a handful of the complainant’s hair and hit her to the back of the head after yelling at her to save his dog which had jumped from the back seat into the front seat of his car.[7]
[7]Charge 6 – common law assault.
On 31 July 2018, the applicant allegedly threw drinking glasses at the complainant during an argument.[8]
[8]Charge 7 – common law assault.
On 2 August 2018, the applicant allegedly kicked the complainant hard to the stomach during another argument, while she was eight weeks pregnant.[9]
[9]Charge 8 – common law assault.
On 3 September 2018, the applicant allegedly burnt the complainant on her back with a blowtorch, leaving a burn mark. [10] He laughed and said ‘sorry, I didn’t mean to’.
[10]Charge 9 – intentionally cause injury.
On 10 September 2018, the applicant allegedly hit the complainant with a metal pole from a vacuum cleaner and pulled her hair, after accusing her of having sex with his friend.[11] He allegedly yelled at her ‘you’re fucking dead, I’ll kill you…’ and then pulled out a gun. While pointing the gun at the complainant, he allegedly said words to the effect of ‘fuck, I’m going to enjoy putting one in you, which limb should I go for?’[12] The applicant left the house and padlocked the gate behind him.
[11]Charges 10 and 11 – intentionally cause injury, alternative: common law assault.
[12]Charge 12 – make threat to inflict serious injury.
The following day, the complainant found the key to the padlock and left the applicant’s house, but she later realised she had left her keys there. She returned on 12 September 2018 to retrieve her keys. The two had another argument, during which the applicant allegedly dragged the complainant by her hair and threw various items at her.[13]
[13]Charge 13 – common law assault.
The complainant made a report to police on 14 September 2018. Police observed and took photographs of multiple bruises and marks on her body, including a burn mark on her back.
On 15 September 2018, the applicant saw the complainant and informed her that he had found out that she had reported his violence to the police. She confirmed that this was so. He then allegedly said to her, ‘You better go back and tell them that you made it all up’.[14] Having left the company of the applicant and due to her fear of him and his connections, the complainant contacted Pert at the Mernda Police Station. She told him that she was sorry she had wasted his time and that she had made the allegations up.
[14]Charge 14 – attempt to pervert the course of justice.
On 18 September 2018, police arrested and charged the applicant, and executed a search warrant at his home. They located three blowtorches, an imitation handgun[15] and a mobile phone during the search. The applicant made a no comment record of interview.
[15]Charge 15 – prohibited person possess imitation handgun.
Also on this day, the complainant was informed by Kara, a niece of the applicant, of his arrest. At 10.21 pm that night, she received a text message from a friend of the applicant whom she knew as Frank. The text read:
Hello U mother fucking low life junky skunk do U know what U have done with that dirty cum infested mouth of urs the bullshit that U spun to the cops did U get under the desk before or after the ratting happened dw even with Frank locked up U still ain’t safe ur so dumb u were safer with Frank out and before they took him he gave me ya keys and the paper that ur address was on [devil emoji, devil emoji, skull-and-crossbones emoji] see ya soon U and ya mum are going to get on your knees.
On 11 October 2018, a telephone call from the applicant to his sister, Angelina Mazzitelli was recorded on the prison phone system. During the call, the applicant directed Angelina to ‘talk to that thing and tell her she’s got to drop the charges’.
Sometime after this, Kara informed the complainant that Angelina had mentioned a couple of times that the complainant needed to go to the police and inform them that she had made up the allegations. Later still, the complainant was given a message from Angelina telling her that she had to do a believable statutory declaration to the police saying that her allegations were false.
On 16 October 2018, the complainant did indeed make a statutory declaration stating that she had fabricated the allegations. However, the complainant provided a subsequent statement and gave evidence at the committal hearing maintaining her original account and explaining why she had made the statutory declaration.
Personal circumstances
The applicant is a 42 year old man.
According to a report dated 21 April 2020 from the CISP Remand Outreach Program (‘CROP’), the applicant has had an extensive history of illicit substance use from 13 years of age and some episodes of problematic alcohol consumption. He has used cannabis, amphetamines and methylamphetamine in progressively larger quantities over the years.
The applicant reported his substance use peaked after a serious motorcycle accident in 2012. He claimed he used drugs to self-manage his mental health and pain. This accident resulted in the applicant being hospitalised for nine months and ongoing issues with his legs. The applicant reported a desire to cease using methylamphetamine but believed it would be challenging because he had not found a more effective pain medication.
The applicant reported a diagnosis of bipolar disorder, manic depressive disorder and post-traumatic stress disorder, for which he was previously prescribed medication. He reported ceasing these prescription medications and instead self-medicating with illicit substances.
Criminal record
The applicant has a relatively modest criminal history which commenced in 2003 when he was 26. Before the appearance on 2 August 2018 which resulted in a CCO for failing to answer bail (3 charges), theft and other charges, there were appearances in 2003, 2010 and 2013 for driving and street offences.
Upon breach of the CCO on 13 May 2019, the applicant received a term of 4 months’ imprisonment. He also received 2 months’ imprisonment on charges of driving whilst suspended, driving whilst disqualified, possession of morphine and possession of a controlled weapon.
On appeal to the County Court from these dispositions, the terms of imprisonment were reduced but the CCO was cancelled.
Finally, on 6 February 2020, the applicant received a term of 17 days’ imprisonment for contravening a conduct condition of bail.
A contravention summary dated 11 October 2018 prepared in respect of the CCO which commenced on 2 August 2018 indicated that the applicant did not attend the Reservoir Community Correctional Services office within two working days as required by the order, did not ever attend, and did not complete any of the requisite hours of community work. The report indicated:
In failing to engage with his order in any way and further offending during the operational period of his order, he has demonstrated total disregard for his order.
The evidence
Senior Constable Pert gave evidence before me during which he was cross-examined by Mr Brennan for the applicant. He confirmed amongst other things that the applicant has made no further attempts to contact the complainant since originally being bailed in 2018 in respect of the charges. Furthermore, other than using drugs and thereby failing to abide by bail conditions, he has committed no offences since being charged.
Angelina Mazzitelli gave evidence about a number of matters including her understanding of an inflammatory condition of lymphoedema suffered by the applicant since his motorcycle accident in 2012. She indicated that some steps had been taken to get a referral to the lymphoedema clinic at The Austin Hospital. The condition is painful and sometimes restricted the applicant’s ability to get to various appointment, including with Amanda Brown, by public transport. Ms Mazzitelli indicated she had assisted him in getting to appointments, and would do so if he was released on bail. She also indicated that she would report any breaches of bail conditions by him to the police.
The law
Section 1B of the Bail Act 1977 (‘the Act’) sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act makes plain the fact that there is generally to be a presumption in favour of the granting of bail. In a number of situations set out in the Act, however, that presumption is displaced by the requirement that the applicant establish the existence of either exceptional circumstances or a compelling reason that would justify a grant of bail.
The law dictates that the exceptional circumstances test applied in this case. Pursuant to s 4A(1A) of the Act, the Court was required to refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’.
The applicant bore the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances existed, the Court was 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 exceptional circumstances, the Court was required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act required the Court to refuse bail if satisfied that there was 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 bore the burden of proof in respect of the unacceptable risk test if that test arose 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 were any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
Exceptional circumstances
The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[16] stated the relevant principles 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.[17]
[16][2004] VSC 17.
[17]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
Further, in the recent decision of Re Brown,[18] Lasry J noted:
… the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be ‘exceptional’, it has been accepted that:
·The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
·Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
·Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[19]
[18][2019] VSC 751.
[19]Ibid [65]-[66] (citations omitted).
The applicant’s contentions
In the affidavit in support as supplemented by the oral submissions of Mr Brennan, the applicant relied on a combination of the following matters in proof of exceptional circumstances:
a. Delay. The trial date of the applicant has been vacated, and the trial would not be heard until about a year from the current time, depending on the level of priority it is afforded. Added to what Mr Brennan submitted was the period of 10 ½ months that the applicant has already spent on remand, that would bring the overall delay up to a period of two years or more. In response to the later submission of Mr Lewis that the period of time the applicant has spent in custody included some months serving sentences, and that he has actually only spent five months on remand, Mr Brennan agreed with that figure, but maintained that I should have regard to the entirety of the period he has been in custody, not just the period solely referable to this offending. In any event, even the period of 17 months or so would be a substantial delay forming at least a substantial portion, if not the entirety, of the likely non-parole period should the applicant be found guilty.
b. Onerous nature of remand due to COVID-19 pandemic. Restrictions imposed on prisoners to avoid the spread of the virus are well known. Visits have been ceased and in the case of the applicant, he has been subject to lockdowns one day a week, albeit that his hours out of his cell have remained the same for the other six days. There is the fact of anxiety and frustration as a result of the possibility of transmission inside the prison.
c. Weakness of the prosecution case. It was submitted that the case on the assault charges largely depends on the account of the complainant, whose credit, due to a number of things including the fact that she made a statutory declaration withdrawing her allegations, will be subject to strong attack. As for the perverting justice charges, whilst the case is not weak, it would fall to be determined in the context of the statutory declaration, and the numerous attempts made by the complainant to contact the applicant. As for the recorded phone call, it did not encourage any perversion of justice.
d. Absence of any contact with the complainant whilst on bail. The applicant was on bail between 30 October 2018 and 5 February 2019, and then again between 5 September 2019 and 21 February 2020. There is no allegation of the applicant having made any attempt to contact the complainant during these periods. This was a matter relied on quite heavily by Mr Brennan.
e. The availability of support through CROP. The applicant has a long history of drug use. The involvement of CROP, as outlined in the most recent report, would present the opportunity to promote longer term community protection by intervening in the applicant’s drug addiction and hence would reduce the risk of reoffending.
f. Family support and stable accommodation. The applicant would reside with his parents in Mernda. Prior to being bailed there on 5 September 2019, he had not lived there for some years. Family members including the sister of the applicant would assist him in complying with the conditions of bail.
g. The modest criminal history of the applicant. He has no convictions for violence.
h. The fact that this is his first time in custody. Mr Brennan explained that what he meant by this was that the several periods of time the applicant has been in custody since first arrested can be considered to be his first time in custody. He submitted that every time the applicant has been returned to custody during that period, ‘a lesson is learnt’. The three months that he has most recently spent on remand is critical to the awareness he now has as to the consequences of further breaches of bail.
i. There are no pending matters other than the trial. All sentences for previously pending matters have been completed.
Another matter relied upon by Mr Brennan concerned the medical condition of the applicant. It was submitted that in spite of the absence of any expert or other medical report, there is material upon which I could be satisfied that the applicant sustained an injury in a motorcycle accident in 2012 from which he suffers ongoing pain, and that his drug use has intensified since that time as a result of his resort to the use of illicit drugs to deal with his pain. It was submitted that the applicant is unable to receive satisfactory pain treatment in custody, and would be better able to receive such assistance in the community.
Turning to the question of risk, Mr Brennan submitted that the fact of there being no offences other than drug use since the release of the applicant on bail and no attempts to contact the complainant were important matters where the assessment of risk were concerned. There may be a significant risk that he would use drugs on bail, but not that he would commit other offences. The imposition of strict conditions, including one requiring the applicant to provide twice weekly urine screens, would be sufficient to moderate the apparent risk of reoffending to an acceptable level.
The respondent’s contentions
Mr Lewis for the respondent relied upon the contents of the affidavit in response and the exhibits to the affidavit, and supplemented this material with oral submissions before me.
He submitted that the major and indeed, only significant factor in the application must be delay, the other matters relied upon in proof of exceptional circumstances not amounting to much at all.
As for the delay, it may amount to one year and five months, which, whilst obviously a matter to be taken into account, was in no way a remarkable period for someone awaiting trial on serious offences to be held on remand. The delay would be far from exceptional.
This was especially so in light of the fact that the likely sentence should the applicant be found guilty would exceed any period on remand.
Turning to the asserted weakness of the prosecution case, Mr Lewis took issue with the submissions of the applicant on that score. The case is far from weak, and was by no means dependant, as many cases are, on the entirely unsupported evidence of one person against another. Here, there was supporting evidence by way of observable injuries and blowtorches and other items found at the applicant’s house. As for the perverting justice charges, there was material including the recorded prison phone call lending support to the complainant’s account. Also, insofar as there was going to be an attack upon the credit of the complainant based on her provision of the statutory declaration, she had explained on oath why that all came about.
In respect of the absence of contact by the applicant with the complainant since he was released on bail, that was hardly something that went towards proof of exceptional circumstances. Such lack of contact should be seen as the rule, not the exception.
The CROP report was similarly unhelpful in proof of exceptional circumstances. It may provide more assistance if the unacceptable risk test came into play.
The fact of there being no pending matters and a limited criminal history were also matters, so it was submitted, which would play a limited role in proof of unacceptable circumstances.
The respondent accepted that COVID-19 had caused a delay in this matter, but that did not mean the delay was a powerful matter pointing to satisfaction of the test. Furthermore, whilst the prosecution accepted that conditions on remand would be more onerous as a result of the pandemic, that was only one of the circumstances to take into account and was not of great weight in this particular case, particularly in light of the fact that the applicant, unlike many prisoners, was not subject to widespread lockdowns.
In respect of the defence submission about the pain from which the applicant apparently suffers, and the interplay between that and his drug use, Mr Lewis submitted that there was little to indicate that in the many years since the motorcycle accident, the applicant had done anything to get on top of the pain with which he had been afflicted. Furthermore, there was no evidence to justify a conclusion that he is unable to receive appropriate treatment for that pain in the custodial setting.
Turning to the issue of risk, Mr Lewis relied substantially on the treatment of that issue in the affidavit in response. He made the submission that the Court ‘is confronted with an individual with a poor bail history that doesn’t appear to be getting any better with time’. He took issue with the contention that the applicant learnt a lesson every time he was returned to custody. Rather, there was nothing to suggest that the applicant had actually learnt any lesson. As he put it:
The picture that is painted by the material before your Honour is of a person who, if they are released on bail, would engender very little confidence in terms of the ability to comply with any conditions imposed. And in particular, to refrain from taking illicit drugs during the course of any bail.[20]
[20]Transcript 67.
The prosecution concern as to risk went beyond the risk that the applicant may recommence drug use if granted bail, submitted Mr Lewis. He is a person with an anger problem, not tied 100 percent to his drug use, but exacerbated by it. The central allegations were of significant violence committed over a period of time. Furthermore, the applicant, on the prosecution case, had already made attempts to get at the witness to improve his position. And as mentioned, he had shown his willingness to ignore the requirements of bail. The Court should have a genuine concern at the prospect of the applicant reoffending or interfering with the central witness against him.
Analysis
The first matter in the non-exhaustive list of matters to have regard to in assessing whether exceptional circumstances have been established is the seriousness of the offending. In this case, the applicant did not challenge the proposition that the offending is serious. Whilst not anywhere near the higher end of the range of seriousness of offences of family violence, the alleged attacks by the applicant upon his then partner were repeated, nasty, and had some disturbing elements to them, including the use of weapons and the infliction of a kick to the abdomen of a pregnant woman.
In respect of the strength of the case, that will depend on the credit of the complainant, but it seems to me that there will be some evidence supporting her claims. Furthermore, the attack upon her credit based upon the statutory declaration she made will be hampered somewhat by the explanation she has apparently given for her conduct, and some independent evidence showing that the applicant may, indeed, have been putting pressure on her. It remains to be seen what the case will be like. For now, I could not consider the prosecution case to be a weak one.
The criminal history of the applicant is not lengthy, but unfortunately, it reveals some signs of a lack of respect by the applicant for the orders of courts.
That picture is enhanced, and not in a good way, when his performance on bail is considered. He has already been imprisoned in the past for three charges of failing to answer bail. He was imprisoned on 6 February 2020 for contravening a conduct condition of bail in respect of the current matters. Furthermore, a consideration of the background to this bail application, and why it is that the applicant found himself in custody on these matters in spite of having been granted bail in Melbourne Magistrates’ Court as long ago as 30 October 2018, does not make encouraging reading.
Within ten days of the applicant being released on bail for the first time on these matters, the applicant was charged with breaching a CCO he was on for charges including failing to answer bail. Bail was revoked for the first time in the Magistrates’ Court on 5 March 2019.
Bail was again extended to him, this time in the County Court, on 5 September 2019. There was a specific condition requiring him to attend upon Amanda Brown and accept her lawful directions in relation to matters including drug assessment, testing and treatment.
Within two weeks of that grant of bail, the applicant had commenced to fail to comply with its conditions. The Crown applied to have his bail revoked. Rather than doing that, a different judge of the County Court varied the bail to add further conditions, one of them prohibiting the applicant from using drugs of dependence and requiring that he submit to spot testing for drug use. The learned judge adjourned the hearing of the revocation application. This surely was an unmistakable shot across the bow as far as the applicant was concerned.
Sadly, he paid it no heed. Within two weeks of the variation of bail, the applicant had again shown his unwillingness to comply with conditions of his bail. At the very first session he attended with Ms Brown after the variation on 12 February 2020, he turned up in an agitated and altered state. He provided a urine sample which was positive for methylamphetamine. He later admitted having smoked the drug, and admitted he did so again on about 15 February 2020.
It is entirely unsurprising that when the revocation application came again before the County Court, the bail of the applicant was revoked, by the same judge who had earlier seen fit to vary the bail.
To my mind, the recent conduct of the applicant in respect of bail in this matter and some aspects of his criminal history, paint a picture of a person who is entirely unwilling to comply with the requirements of bail when they do not suit him. This is an important matter to take into account where the assessment of exceptional circumstances is concerned.
In addition, of course, the applicant was both on bail and subject to a CCO at the time of some of the alleged offending. This is another matter calling into question his ability and willingness to comply with the strictures of court orders.
In respect of the personal circumstances of the applicant, his claim that he uses drugs at least in part because of his need for pain relief lacks force. No evidence supports this claim, and there is a paucity of material indicating that he has ever taken serious steps since the time of his accident eight years ago to get on top of the pain he apparently experiences. It is completely unacceptable for a person to use illicit drugs for pain relief, and especially so in the case of a person who knows that to do so will put him in clear breach of a specific condition on which a grant of bail has been made in his favour.
As for the family support which the applicant is fortunate to have, it is not an important matter in the overall mix of circumstances in this case, where he was the recipient of that support at other times in his life when he has accrued prior convictions, and acted in breach of grants of bail.
Turning briefly to the view of the complainant, I took into account the fact that she is scared of the applicant, and apparently feels that if he is released on bail, she could be in some danger. A FVIO is still in place with her as the protected person, and I took that matter into account pursuant to ss 3AAA(1)(f) and 5AAAA.
In respect of the question of delay, I took into account the fact that the applicant is likely to spend a period of the order of 17 months on remand before his trial is heard. That is no small thing, but is by no means an inordinate delay and is not, on its own, or in combination with other factors, exceptional.
Finally, insofar as the specific matters in s 3AAA were concerned, I turned my mind to the likely sentence to be imposed should the applicant be found guilty. I agree with Mr Lewis that the likely sentence, even in terms of any non-parole period, would be expected to exceed the period of time the applicant would spend on remand.
Having taken into account the above circumstances, and all of the other matters drawn to my attention, I was not satisfied that the applicant had discharged the onus resting on him of proving the existence of exceptional circumstances in favour of a grant of bail in this case.
That would have been reason enough for bail to be refused.
For completeness, I indicated at the time of announcing my decision that even had I considered that the applicant had satisfied me of the existence of exceptional circumstances, I would have considered that the nature of the charges, the sequence of events since the charges were initially laid, and the other surrounding circumstances, including his continuing drug use, would have dictated that there would be an unacceptable risk of one or more of the matters set out in s 4E of the Act.
Conclusion
For the reasons stated above, the application for bail was refused.
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