Re McKay
[2020] VSC 558
•1 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0196
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by SHANE McKAY |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August 2020 |
DATE OF JUDGMENT: | 1 September 2020 |
CASE MAY BE CITED AS: | Re McKay |
MEDIUM NEUTRAL CITATION: | [2020] VSC 558 |
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CRIMINAL LAW – Bail – 27 year old Aboriginal applicant - Dishonesty, assault, breach of family violence intervention order, drugs, and reckless conduct charges – Applicant on multiple grants of bail at time – Significant criminal history – Poor compliance with previous community correction orders – Strong support from former foster mother and stable residence on offer – CISP support - Exceptional circumstances not established – Unacceptable risk – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Patrick W Dwyer Criminal Law |
| For the Respondent | Mr G Carr | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of the following 38 charges laid by the informant/respondent Detective Senior Constable Young:
1.Theft of a motor vehicle;
2.Committing an indictable offence whilst on bail (six charges);
3.Contravening a family violence intervention order (‘FVIO’ – 16 charges);
4.Unlicensed driving;
5.Displaying incorrect number plates;
6.Recklessly causing injury;
7.Assault with a weapon (screwdriver);
8.Reckless conduct endangering life;
9.Criminal damage;
10.Handling stolen goods;
11.Possessing a drug of dependence (methylamphetamine);
12.Possessing a controlled weapon;
13.Stating a false name when requested; and
14.Persistent contravention of a FVIO (five charges).
The applicant was remanded in custody on these charges on 19 June 2020. On 28 July 2020, bail was refused to the applicant in the Ballarat Magistrates’ Court, the sitting magistrate being satisfied of the existence of a compelling reason in justification for bail, but being satisfied that there was an unacceptable risk that the applicant would commit an offence while on bail.
Before me, it was agreed between the parties that notwithstanding the test considered in the court below, the correct test to apply in this case is the exceptional circumstances test, because the applicant is charged with the commission of Schedule 2 offences alleged to have been committed while he was on bail for further Schedule 2 offences.
The charges the subject of this application are listed for a contested hearing on 23 and 24 March 2021.
Other outstanding charges
Important background to the charges in question is constituted by a large number of charges laid by no fewer than six individual informants, in respect of which the applicant was either on bail or subject to summons at the time of his alleged offending. These charges are as follows:
On bail
(a) Informant Senior Constable Hughes – alleged offending and charge date 16 November 2019. Bail granted in the Ringwood Magistrates’ Court on 12 December 2019 and varied 28 January 2020.
(i) Theft of a motor vehicle;
(ii) Possessing a drug of dependence (methylamphetamine);
(iii) Handling stolen goods (two counts);
(iv) Dealing with property suspected of being proceeds of crime; and
(v) Possessing a prohibited weapon (taser).
(b) Informant Constable Kiang - alleged offending on 4 May 2020; charged on 5 May 2020 and released on police bail the same day.
(i) Theft of a motor vehicle;
(ii) Handling stolen goods (three counts);
(iii) Stating a false name when requested; and
(iv) Unlicensed driving.
On summons
(c) Informant Senior Constable Day – alleged offending between 17 November 2017 and 10 January 2018; charged on summons dated 27 May 2019.
(i) Obtaining financial advantage by deception (20 counts).
(d) Informant Senior Constable Dawe – alleged offending between 12 May 2018 and 1 August 2018; charged on summons dated 23 May 2019.
(i) Obtaining property by deception;
(ii) Using a false document (two counts); and
(iii) Obtaining financial advantage by deception.
(e) Informant Senior Constable Westlake – alleged offending on 10 August 2018; charged on summons dated 15 February 2019.
(i) Obtaining financial advantage by deception.
(f) Informant Constable Learmonth – alleged offending between 4 February 2020 and 18 March 2020; charged on summons dated 26 July 2020.
(i) Theft of a motor vehicle (two counts);
(ii) Obtaining property by deception (two counts);
(iii) Supplying false identification; and
(iv) Committing an indictable offence whilst on bail.
Each of these outstanding matters returns to the Ringwood Magistrates’ Court on 11 November 2020. The matters of Informants Day, Dawe, Westlake and Hughes will resolve to a consolidated plea on that day, while the matters of Informants Learmonth and Kiang are unresolved and are listed for mention.
Alleged offending
By way of background, the applicant was in a volatile, long-term relationship with Alexander Banks, which purportedly came to an end in August 2019. A no-contact FVIO protecting Mr Banks was imposed against the applicant on 19 September 2019.
Notwithstanding the FVIO, the relationship resumed and the couple remained living together until April 2020.
On 16 June 2020, following an argument between the applicant and Banks in which Banks refused to allow the applicant to borrow his recently purchased BMW wagon, the applicant allegedly threatened Banks with a car jack and a flick knife before snatching the car keys and driving the vehicle away. Banks made several unsuccessful attempts to contact the applicant to return his car and eventually contacted police to report the vehicle stolen.
On 19 June 2020, the applicant allegedly drove his uncle, Bobby McKay, in the stolen BMW to his uncle’s residence at 3 Ohagan Place, Bacchus Marsh. Upon their arrival, the applicant and McKay argued about McKay collecting his belongings from the vehicle. The applicant allegedly proceeded to stab his uncle approximately six times with a screwdriver while still inside the car, causing stab wounds to his forehead and upper left arm.
Having witnessed the incident, the applicant’s grandfather, Kevin Kerslake, approached the vehicle and told the applicant to ‘fuck off’. In response, the applicant allegedly reversed the vehicle towards Kerslake, coming within five feet of him. It is alleged that a brick pillar at the front of the residence prevented the applicant from hitting Kerslake. The applicant then drove the BMW down the road, before performing a U-turn and driving back towards Kerslake at speed. Kerslake ran inside the residence to avoid being hit by the vehicle, which collided with the front of the house, destroying a brick pillar and causing significant damage to the veranda and front brick wall and door of the residence, and dislodging some tiles on the roof. The vehicle of Banks was seriously damaged in the impact, such that it was a write-off. Kerslake was not injured but stated that, had he not run inside the residence, he would have ended up ‘underneath the vehicle’. At the time of this incident, the applicant did not hold a valid driver licence. It is alleged that he was substantially affected at the time by his earlier consumption of methylamphetamine (‘ice’).
The applicant allegedly fled the scene on foot and was arrested a short time later in the vicinity of the Bacchus Marsh Hospital. Police located a ziplock bag containing 0.41 grams of ice and a hunting knife within a black bag carried by the applicant. When asked to provide his name, the applicant allegedly stated that it was ‘Jamie’. He was transported to the Bacchus Marsh Police Station and thereafter conveyed by ambulance to the Royal Melbourne Hospital after complaining of soreness to his neck and chest. It is alleged that he dropped a ziplock bag containing 1.11 grams of ice in the airlock of the police station when escorted to the ambulance.
When interviewed, the applicant stated that he could not remember anything about the incident, save for his arrest and transport. He denied having driven the BMW, stating that his uncle had been driving all day, including when the vehicle collided with his home. The applicant also denied stabbing his uncle. He made full admissions to possession of the ice, and explained that the ziplock bag found in the airlock had been missed in the initial search and had fallen out of the his pocket. He was remanded in custody.
Subsequent to the applicant’s remand, police discovered 326 text messages sent from the applicant’s phone to Banks in breach of the FVIO between 26 February 2020 and 19 June 2020. It is alleged that many of those text messages contain abusive language and threats directed towards Banks, including threats to harm and kill him. On 27 July 2020, Informant Young issued further charges against the applicant for offences of contravening a FVIO (15 charges) and persistent contravention of a FVIO (five charges).
At the time of the alleged offending, the applicant was on two grants of bail where the informants are Kiang and Hughes. The charges in the informant Kiang matter arose from an incident on 4 May 2020 in which the applicant was intercepted by police driving a stolen Land Rover. A search of that vehicle located stolen goods, including a wallet and cards in the names of Angie Ioannou and Mark Carroll. The charged conduct in the informant Hughes matter similarly involved the theft of a Subaru WRX and the execution of a search warrant at an address in Watsonia, which located, amongst other items, a ziplock bag containing approximately 1 gram of ice, a taser, stolen and altered identification documents and the stolen Subaru fitted with stolen number plates. The conditions of his bail included residence at 47 Barry Street in Reservoir, curfew, reporting and non-association with co-accused.
Personal background of the applicant
The applicant is 27 years old. He identifies as Aboriginal via his maternal lineage and is a member of the Yorta Yorta community. He experienced a difficult childhood characterised by family violence including sexual and physical abuse, and exposure to his mother’s drug use. He was first removed from his mother’s care at six weeks of age and was intermittently returned to her care until the age of 14 when Kylie Ponchard took over as his foster carer. He remained in Ms Ponchard’s care into his adult years.
The applicant met his father for the first time at the age of 20 and resided with him for a short time before moving in with friends. He was held at gunpoint during this period by people known to him and fled to Queensland for several months as a result. He experienced periods of homelessness following his return to Victoria.
The applicant moved schools frequently throughout his childhood. He completed a Certificate IV in Community Services following his year 12 studies and thereafter commenced work as a disability support worker. He was employed as a residential care worker at the Victorian Aboriginal Child Care Agency for 12 months at the age of 21 where he witnessed and was subjected to acts of violence. He received WorkCover assistance in 2014 following these experiences.
The applicant has a history of polysubstance abuse, comprising predominantly ice use. Gina Cidoni, a consultant psychologist, in her report dated 27 May 2019, expressed the opinion that the applicant struggles with chronic anxiety, panic disorder, post-traumatic stress disorder (incorporating hypervigilance, irritability and sleep disturbances) and moderate depression as a result of his past experiences of trauma. She expressed the view that the applicant’s substance abuse is a ‘major contributing factor’ in his offending history for which he requires intensive drug treatment, ideally by way of residential rehabilitation. He also suffers from asthma.
Criminal history
The applicant has a criminal history beginning in 2016 on his 23rd birthday. The Victoria Police Criminal Record contained in the material runs to 28 pages, but the length of the history may tend to exaggerate the extent of the applicant’s involvement in the criminal justice system. On my reckoning, there have only been six separate court dispositions over the few years of the respondent’s criminal history. That is not to say that the history is not a serious and concerning one. It includes convictions for numerous drug possession, dishonesty and driving offences, as well as many offences involving contravention of court orders. In particular, he has been convicted of four instances of contravening a conduct condition of bail, no fewer than 15 instances of committing an indictable offence whilst on bail and numerous contraventions of personal safety orders, FVIOs and community correction orders.
As indicated above, he has six outstanding matters currently before the Magistrates’ Court other than the charges the subject of this application.
The most recent court disposition of the applicant occurred at Heidelberg Magistrates’ Court on 30 May 2019, when the applicant was dealt with for an array of charges including offences of dishonesty, drug possession, committing indictable offences while on bail (3 charges) and contravening a conduct condition of bail. He received an aggregate term of 54 days’ imprisonment along with a CCO for 12 months, with conditions requiring him to abstain from illegal drug use, to submit to assessment and treatment for drug abuse as directed, including assessment and treatment at a residential facility, and to submit to assessment and treatment for mental health issues.
The Court was provided with a report from Amanda Pennacchia, an Advanced Case Manager with Corrections, in relation to the applicant’s performance on the above CCO. The report, as I will later detail, does not make encouraging reading.
Aside from all of the alleged offending the subject of this application for bail, two of the six groups of other outstanding charges are alleged to have been committed from the time the applicant was made subject to that CCO.
The law
Section 1B of the Bail Act 1977 (‘the Act’) sets out the guiding principles of the Act and reads in part as follows:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
...
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
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.
Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, 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 exceptional circumstances, the Court is 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 bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court is required to take into account the surrounding circumstances pursuant to s 3AAA. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.
Given that some of the allegations against the applicant involve family violence offences, s 5AAAA(2) of the Act requires the Court to consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.
Because of the indigenous heritage of the applicant, s 3A of the Act has application. It provides:
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including –
a)the person’s cultural background, including the person’s ties to extended family or place; and
b)any other relevant cultural issue or obligation.
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[1] 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.[2]
[1][2004] VSC 17.
[2]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
Further, in the decision of Re Brown,[3] Lasry J
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.[4]
[3][2019] VSC 751.
[4]Ibid [65]-[66] (citations omitted).
The evidence before the Court on the application
Ms Kylie Ponchard, the former foster mother of the applicant, gave evidence before me. Ms Ponchard had previously prepared a letter for the court at the time of the application in the Magistrates’ Court. This letter was exhibited to the first affidavit in support of bail. Ms Ponchard is an Aboriginal woman who is employed full-time by the Victorian Aboriginal Child Care Agency (VACCA) as a team leader. She outlined her responsibilities at VACCA, which, amongst other duties, have her linking families with services they may need.
In the letter and in her evidence, Ms Ponchard detailed her long connection with the applicant, which commenced when he was about four years of age and still in the care of his mother. She cared for the applicant when he was aged between 14 and 18, and continued to have contact with him after that time, other than for a period of a couple of years when she lost contact with him, up until he ‘reached out’ to her shortly before going into custody on these matters.
Ms Ponchard detailed some of the disrupted and sad personal history of the applicant, and outlined his needs as she saw them. Amongst other things, he needs to deal with the trauma of his childhood, address his mental health concerns, and take steps to overcome his substance abuse problem. In her letter, she described the applicant as being on an ‘on and off journey with his Aboriginal culture’ and asserted that more recently he had reconnected in this regard, which she described as a great step in his recovery. She reiterated this matter in her sworn evidence before me, describing it as a ‘vital step in his recovery’.[5]
[5]Transcript 8.
She indicated that, contact now having been resumed between them, she is willing to provide a place for the applicant to live with her in Mernda. She is prepared to do so in spite of the fact that she works full-time and also has the care of a two year old child. She also indicated that in view of her skills in assessment and referral pathways, she considered herself well equipped to support him in his journey of recovery, and was willing to do all she could in this regard. She had already spoken to the Victorian Aboriginal Health Service (‘VARS’), who have drug and alcohol programs still functioning during the COVID-19 restrictions. She proposed that the applicant would also need to have a mental health plan prepared by a general practitioner. Further, she indicated a willingness to work with the Court Integrated Services Program (‘CISP’) in creating a support plan for the applicant. She would endeavour to attend appointments with him should he be released on bail. Should the applicant fail to abide by conditions of bail, she would report him to the police.
In cross-examination, Ms Ponchard acknowledged the substantial commitments she would have to her work and family, but maintained that she would make the time to support the applicant nonetheless.
In addition to the evidence of Ms Ponchard, an up-to-date report from CISP dated 28 August 2020 was provided to the Court. The report indicated that the applicant had been assessed as suitable, and proposed a number of services to be provided should he be released on bail.
The applicant’s contentions
Mr Connolly for the applicant relied on a combination of matters set out in the affidavits in support and in his oral submissions in support of the proof of exceptional circumstances, and in resisting the respondent’s claim of unacceptable risk. The matters were as follows:
(a) The support of Kylie Ponchard, at whose home it was proposed that he would reside. This matter was very much front-and-centre in the application. It was submitted that Ms Ponchard was very well qualified to provide a high level of support to the applicant, and to assist him in engaging with the appropriate services. She had not only the professional knowledge and expertise, but the personal knowledge of the applicant to provide a very high level of supervision and support for him. Mr Connolly described Ms Ponchard as an ‘exceptional’ woman, and as being ‘exceptionally suited to facilitate such an order’.[6] She was confident in her ability to turn the applicant around, and with good reason, so it was submitted. She could assist in the applicant being provided a level of supervision and support which had not been possible in the past, even under a CCO.
[6]Transcript 29.
(b) The availability of the services of CISP. This, in conjunction with the support and expertise to be provided by Ms Ponchard, would ensure a high level of overall support, exceeding that which had been possible previously. Although the applicant had not responded well to CCOs in the past, he had never previously been given the opportunity of working with CISP.
(c) The physical ill-health of the applicant. He suffers from asthma. That condition, along with his Aboriginality, would place him at an elevated position of risk where COVID-19 was concerned. In addition, his ongoing anxiety and other psychological conditions would make dealing with the uncertainty created by the possible infiltration of the virus into the prison more difficult for him to deal with.
(d) Delay. The contested hearing of the charges would not occur until March 2021, meaning that the applicant would have been in custody for nine months by the time of the hearing. The particular aspect of delay relied upon was not so much that the period in custody would exceed the likely sentence, but rather, the fact that during that time in custody, the applicant would receive none of the sorts of support which could be provided to him should he be released on bail. It would be wasted time, which would deny him the chance to demonstrate good prospects of rehabilitation.
(e) The onerous nature of conditions on remand due to COVID-19.
(f) The views of the alleged victims as to a grant of bail. Bobby McKay has refused to make a statement and has expressed no view on the applicant being granted bail. Mr Banks and Mr Kerslake have indicated no opposition to bail being granted.
(g) The strength of the prosecution case. There would be no challenge to the charges of breaching the FVIO. The charge of theft of the motor vehicle would hinge on disclosure of text messages yet to be disclosed. The applicant did claim during the police interview that he had permission to take the car. On the charges relating to events on 19 June 2020, Mr Connolly indicated that there would be no significant point made as to the strength of the case. In respect of the reckless conduct events, there were eye witness accounts. There would be a triable issue as to whether reckless conduct could actually be made out. As for the charge of the applicant having stabbed his uncle with a screwdriver, the alleged victim had declined to make a statement or cooperate with police. Whether the injury charge could be made out would depend on the evidence of the observations of others. Causation was in issue. Having made these submissions, however, Mr Connolly said, ‘I’m not suggesting for a minute that it’s a weak prosecution case’.[7]
(h) The fact that the combined support of CISP and Ms Ponchard would provide a ‘targeted holistic plan that no other services can offer him’. It was submitted that this would ameliorate any risk posed by the applicant to an acceptable level.
[7]Transcript 25.
The respondent’s contentions
Mr Carr, for the respondent, relied on the detailed report of the respondent exhibited to the affidavit in response, on written submission filed before the hearing, and on oral submissions.
Mr Carr submitted that the combination of matters relied upon in support of bail could not establish that exceptional circumstances exist. He further submitted that the applicant clearly posed an unacceptable risk in this case.
Mr Carr emphasised the significance of s 5AAAA of the Act. Two final FVIOs and one interim order, relating to three separate affected family members, are now in place. The applicant has a history of failing to comply with such orders. He has a history of breaking up and then reconciling with his former partner, in spite of the existence of a FVIO. In the circumstances, it would be open to the Court to find that there would be a significant risk of the applicant committing further family violence if released on bail. Because the serious matters in respect of which bail was now sought had arisen during the currency of an active FVIO, in combination with the proven history of offending by the applicant, the Court should find that no bail conditions could mitigate the risk posed to an acceptable level.
Dealing with the s 3AAA circumstances, Mr Carr submitted that the offending was serious, involving allegations of family violence, dishonesty, other violence, and reckless conduct which could have resulted in significant injuries to members of the public. The case should be viewed as a strong one. The criminal history of the applicant was significant and very relevant. Previous compliance with bail had been poor. At the time of the alleged offending, the applicant was on bail and subject to summons for a large number of charges.
Mr Carr did not take issue with the appropriateness of the address being offered by Ms Ponchard, or her character and good intentions. However, he did question her ability to provide a high level of support for the applicant in view of the other commitments upon her time and attention, including her full time work and young child. The admirable support she was in a position to offer the applicant should not be viewed as exceptional, but rather, as normal.
As for the support of CISP, given the applicant’s history of non-compliance with bail and court orders, the Court should conclude he would be unlikely to comply with CISP support. The poor conduct of the applicant on his most recent CCO should be put down less to a trust issue, than to a choice issue. When he has decided he does not want to engage in culture or in services, then he has simply stopped engaging, and turned to significant and dangerous offending.
Furthermore, where it is apparent that the applicant’s drug addiction is an important issue, there is no residential or other intensive drug rehabilitation in place. The supports on offer would depend on the good will and cooperation of the applicant, which have been lacking to date. Indeed, the support and supervision on offer to the applicant under bail would be considerably less intensive than that on offer in the past under the most recent CCO. There would be no reason to suppose he would engage and comply with those supports.
Mr Carr accepted that the Aboriginality of the applicant is an important matter, but less so than would often be the case. He submitted that the Court would be entitled to consider that the engagement of the applicant with his indigenous culture has been off and on over the years, as and when it suited him. Throughout his life, he has chosen, at times, to disengage with his culture.
In respect of the period on remand in prospect relative to the likely sentence upon conviction, Mr Carr submitted that a term of imprisonment of twelve months or more would be highly likely if the applicant was found guilty. Such a term would exceed any time spent on remand.
On the question of risk, Mr Carr submitted that if released on bail, the applicant is highly likely to reoffend, and such reoffending would be likely to be serious in light of the current alleged offending which occurred following a period in custody, a CCO, and whilst the applicant was subject to grants of bail and an active FVIO. The current alleged offending involved, amongst other things, an unlicensed, drug affected person driving a motor vehicle directly towards a person, on private property, striking the side of a house. Such conduct illustrated the potential for catastrophe should the applicant be released on bail. The Court should find that no conditions of bail could reduce the obvious risk of reoffending, with the accompanying danger to the community, to an acceptable level.
Analysis
Although these matters remain in the summary stream, there is no question that some of the offending is very serious. In particular, the alleged event of the applicant, unlicensed and drug affected, having deliberately driven a stolen motor vehicle in the direction of a person in the front yard of his property, causing the intended victim to take evasive action, slamming into the front of the house, demolishing a veranda support, damaging the front wall and roof of the house, and rendering the vehicle in a written-off state, is concerning offending.
The case in respect of that alleged event, and most of the other offending, seems to me to be of at least reasonable strength.
The criminal history of the applicant, relatively short though it is, is clearly highly relevant to the question of bail. Since the age of 23, sadly, the applicant has accrued an unenviable record of offending, with many features indicative of a person who, whilst admittedly under the influence of his drug use, has shown a lack of respect for the law and for the orders of courts and an unwillingness to bring his behaviour under control.
On the particular question of the applicant’s previous performance on bail, which may be seen as being an indicator of possible future performance, the picture is very grim. The indications are that compliance with the strictures of bail has not been a priority for the applicant. If any further illustration of that is required, the alleged commission of the current offences, not long after the end of a CCO, while on no fewer than two grants of bail and subject to summons in respect of four further groups of charges, is telling.
Family violence concerns are squarely raised by the criminal history of the applicant. Beyond the matters of breaches of FVIOs there mentioned, there is further material contained in the report of the respondent as to family violence reports made against the applicant over the last ten years. The concerns flagged by Mr Carr as to the prospect of future family violence offending by the applicant are reasonable ones, especially in light of the very troubled relationship between the applicant and Mr Banks over a number of years.
Turning to the personal circumstances of the applicant, he has had a difficult past, and is very fortunate now as he was in the past to have the support of Ms Ponchard. There is no questioning her devotion to him, and her desire to assist him in any way she can. Also, she does have professional expertise in the area of the provision of services to troubled individuals and families which may assist her in supervising and supporting the applicant. The sincerity and level of motivation of Ms Ponchard were not called into question before me. It is the motivation of the applicant to effect change in his unsettled and unsatisfactory life that is in issue.
I previously touched on the report of Ms Pennachia from Corrections, which I indicated did not make encouraging reading. Ms Pennachia was the case manager for the applicant on his most recent CCO which commenced on 30 May 2019. The overall poor performance of the applicant on that CCO came against the background of two previous CCOs which were both subject to breach due to reoffending by the applicant. During this CCO, on occasions the applicant engaged briefly as required, but a pattern emerged of instability and deliberate disengagement by the applicant, in spite of the best efforts of those whose job it was to supervise and assist him. One of the critical features of the CCO was the assessment and treatment on offer to the applicant in respect of his drug abuse. Whilst there were occasions of compliance, essentially, the applicant relapsed into daily use of ice and failed to attend ongoing appointments which were made for him. He resisted attempts by the authorities to reengage him. He was described as being ‘pre-contemplative’ in seeking assistance.
The position was no more encouraging where assessment and treatment for mental health issues were concerned. He made no attempt to engage in psychological counselling and was described as being ‘resistant to engaging with mental health supports’, and not being ‘treatment ready’.
In recommending that the CCO be cancelled and the applicant re-sentenced, Ms Pennachia stated:
Mr McKay’s compliance with his order has been unsatisfactory with the last appointment he successfully attended being 16 October 2019. Mr McKay made some positive steps in the infancy of his order, attending the majority of his supervision appointments, and accepting referrals for both mental health and drug and alcohol treatment. However, it is noted that Mr McKay failed to engage with services and was unable to consistently demonstrate commitment to engaging in treatment directly linked to his offending.[8]
[8]Report of Ms Pennachia, page 3.
There was no material before me which would give me any comfort that the poor attitude of the applicant as revealed in this breach report has now changed to the extent that he would now be prepared to engage and accept the supports which might be available to him were I to grant him bail. With the best will in the world, the good and supportive conduct of Ms Ponchard cannot compel better conduct from the applicant unless he has reached a firm intention to modify his own behaviour. There is nothing to indicate that he has yet reached that position in his life.
I take into account, as is of course specifically required of me by s 3A of the Act, the Aboriginal heritage of the applicant. Ms Ponchard expressed a view as to the critical importance of the applicant reconnecting with his culture. I accept that evidence, and express the hope that in future, with the assistance of Ms Ponchard, the applicant might willingly go on the journey of which she spoke. I do not believe I can have any confidence that he is yet ready and willing to do so. Having said that, it is clear that there are still supports available to the applicant if and when he chooses to avail himself of them.
I take into account the delay that will occur before the final resolution of the charges, assuming they do proceed to contest. I also take into account the conditions under which that period on remand would be spent should bail be refused. Like all people held in custody, the applicant is currently denied the personal visits which would normally be available to him. Nonetheless, contact with family and friends by means of Skype and other calls is still open to him. Fortunately, the applicant is not being confined to his cell for more than the normal hours, unlike many other detainees. I acknowledge the submission of Mr Connolly that he is not able to receive the sort of supports which would be available to him in the community, and that his time in custody is, in effect, wasted time. That may well be so, but at least he is in a situation where he is apparently remaining drug free, which he has not been able to do in the community. At this time, the reality is that I am not confident that he would avail himself of any of the services which might be on offer to him outside the confines of the prison in any event. He did not engage with such services in the past. I am not, at this stage, confident that he would do so in future.
As things currently appear, should bail be refused and the matters proceed to contested hearing, the applicant would spend in excess of nine months on remand. This is a very significant period, which I take into account. On the other hand, the offending is serious, the criminal history of the applicant is significant, and the indications are that if he was found guilty, he may receive a term of imprisonment of that duration or more.
Having carefully considered all of the circumstances of this case, I do not consider that the applicant has discharged the onus resting upon him of proving, to the satisfaction of the Court, the existence of exceptional circumstances that would justify the grant of bail. The combination of circumstances relied upon could not be realistically described as being ‘right out of the ordinary’, to use the words of Kaye J. Indeed, I consider that the applicant fell well short of overcoming the high barrier represented by the first step in the two-step bail process. For that reason, it would be necessary for bail to be refused.
For completeness, I should indicate that even had I been of the view that exceptional circumstances had been shown to exist in this case, I would have considered that the respondent had made good his contention that no conditions of bail could be imposed which would ameliorate the obvious risk posed by the applicant of endangering the safety or welfare of the public, reoffending, or interfering with a witness to a level that is acceptable. In my view, there would remain an unacceptable risk of those eventualities. I reach this view on a consideration of all of the circumstances, including the serious offending the subject of this application, the criminal history of the applicant, his as-yet untreated drug dependence, his poor history of compliance with bail, his substantial history of family violence offending, his poor compliance with his most recent CCO, the fact that he was on multiple grants of bail at the time of the current offending, and his deliberate and repeated breaches of a FVIO in place at the time of the offending.
For this reason, also, it would be necessary for bail to be refused.
Conclusion
For the reasons I have stated above, this application for bail must be refused.
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