Re McLeod
[2018] VSC 795
•18 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0305
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application by JAY McLEOD | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 & 18 December 2018 |
DATE OF JUDGMENT: | 18 December 2018 |
CASE MAY BE CITED AS: | Re McLeod |
MEDIUM NEUTRAL CITATION: | [2018] VSC 795 |
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CRIMINAL LAW – Bail application – Applicant required to show compelling reason – Charges of trafficking in a drug of dependence, knowingly dealing with proceeds of crime, receiving stolen goods, possessing a drug of dependence, failing to provide a password to a data storage device – Delay – CISP support – Drug counselling – Stable accommodation –Bail granted with conditions – Bail Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Pratt | Sarah Pratt & Associates |
| For the Respondent | Mr J Kibel | Victoria Police |
HIS HONOUR:
Introduction
On 19 September 2018, Jay McLeod (‘the applicant’) was arrested and charged with trafficking in a drug of dependence (methylamphetamine), knowingly dealing with proceeds of crime (two counts), receiving stolen goods, possessing a drug of dependence (three counts), and failing to provide a password to a data storage device.
The applicant has been in custody since his arrest, and was refused bail in the Moorabbin Magistrates’ Court on 11 October 2018. An application for bail was filed in this Court on 27 November 2018.
The matter is next listed for mention on 8 February 2018 at the Moorabbin Magistrates’ Court, after which it is anticipated the matter will be listed for a contest mention.
The alleged offending
On 19 September 2018, police executed a search warrant at the applicant’s residence, an apartment situated on East Boundary Road, Bentleigh East.
The applicant was present with the co-accused at the time, and was asked whether there were any drugs, cash or weapons that he wished to declare. The applicant responded that there were 20-25 grams of methylamphetamine in the kitchen, and another amount in his cigarette packet.
In various rooms of the apartment, police located, among other items:
·two quantities of cash ($425 and $26,950);
·illicit drugs (GHB, methylamphetamine, and cannabis);
·a quantity of the prescription medication Alprazolam, labelled with a name other than that of the applicant;
·a stolen KTM 300 motorbike; and
·three mobile phones.
The applicant refused to comply with requests to provide passwords or pin codes to the electronic devices located by police.
Both the applicant and co-accused were arrested following the search. The applicant provided no comment in his record of interview. The co-accused was interviewed and bailed to appear at Moorabbin Magistrates’ Court on the 13 December 2018.
Applicable legislation
The applicant is charged, inter alia, with two counts of a Schedule 2 offence under the Bail Act 1977 (‘the Act’), namely, trafficking in a drug of dependence.[1] Pursuant to s 4AA(3) of the Act, the compelling reason test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence.
[1]Bail Act 1977 (Vic) sch 2 item 24(b).
Therefore, pursuant to s 4C(1A) of the Act, the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The burden of satisfying the Court that a compelling reason exists rests with the applicant.[2]
[2]Ibid s 4C(2).
In considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’.[3] Regarding surrounding circumstances, s 3AAA provides that the Court must take into account all the circumstances that are relevant to the matter including, but not limited to:
[3]Ibid s 4C(3).
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c) the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged[.]
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, the Court must apply the ‘unacceptable risk test’.[4] Pursuant to s 4E(1) of the Act, the Court must refuse bail if the respondent satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail –
[4]Ibid s 4D(1)(b).
(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.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to take into account the surrounding circumstances again, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Meaning of compelling reason
In Re Ceylan,[5] Beach JA considered the inquiry required under s 4(4) of Authorised Version No. 138 of the Act as to whether an accused establishes a compelling reason. His Honour held:
For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[6]
[5][2018] VSC 361.
[6]Ibid [46].
His Honour further determined:
compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary…to show a reason which is irresistible or exceptional… ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.[7]
[7]Ibid [47].
The statutory provisions have since been amended. In Re Alsulayhim,[8] Beach JA considered the current provisions and held:
The test in Ceylan was whether there was compelling reason why an applicant’s detention in custody was not justified. Section 4C requires a compelling reason ‘that justifies the grant of bail’. While the statutory language is slightly different, the expression ‘compelling reason’ remains. Having considered s 4C in context, there is no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason’. Further, the presence of the indefinite article in s 4C before the words ‘compelling reason’ does not mandate any different approach, to the issue of whether bail should be granted, from that described in Ceylan.[9]
[8][2018] VSC 570.
[9]Ibid [28].
The applicant
The applicant is 28 years old and has a three year old daughter. At the time of his arrest, he resided in a rental apartment in Bentleigh and had been employed as a pool fence installer for approximately 12 months.
The applicant has a prior criminal history dating back to 2009, involving offences of dishonesty, drugs, violence and traffic violations. Relevantly, he also has a history of breaching court orders, including contravening a suspended sentence order in 2016, contravening a community correction order in 2015, failing to answer bail (four counts across 2014 and 2015), and contravening a family violence interim intervention order (two counts in 2014 and 2015).
The applicant has been using illicit substances since his teenage years with an escalation in his consumption since the death of his father in 2010 and the successive deaths of close friends.
Pursuant to s 5AAA(1) of the Act, the Court must make certain inquiries of the prosecutor as to any family violence risks relating to the applicant. The prosecutor indicated that the applicant does not have a family violence intervention order, family violence safety notice, or recognised domestic violence order currently in force against him.
The applicant’s contentions
In an affidavit affirmed on 27 November 2018, Sarah Pratt, the applicant’s solicitor, submitted that the following matters are established by evidence, and in combination demonstrate a compelling reason that justifies the grant of bail.
Delay
The applicant intends to contest the charges, which are next listed for a further summary case conference on 8 February 2019. By this time, he will have been on remand for a period of five months. It is submitted that if matters then resolved, the applicant would have already served more time on remand than any likely term of imprisonment that would be imposed for this type of offending, taking into account his personal circumstances and criminal history. If this matter proceeds to a contest, there will be further delay.
Criminal history
This is the applicant’s first time in custody. While acknowledging his criminal history, the applicant notes this is also the first time he has been charged with trafficking offences.
Mental health of the applicant and availability of counselling
The applicant filed a psychological report by Carla Lechner, dated 8 November 2018, in support of his application. Ms Lechner opined that the applicant has a history of drug use dating back to when he was a teenager, and currently presents with symptoms of Stimulant Use Disorder in early remission in a controlled environment, and some symptoms of depression. Ms Lechner concludes that the applicant requires considerable support, including appropriate drug and psychological counselling.
The applicant proposes that he will attend regular counselling with a psychologist who specialises in drug and alcohol counselling, as part of a mental health plan to support him in his rehabilitation. The applicant filed letters from psychologist Lisa Jackson, dated 5 October and 7 December 2018. Ms Jackson states she is available to see the applicant on a fortnightly basis, focusing on relapse prevention strategies and challenging unhelpful thought processes.
Court Integrated Services Program (CISP) availability
On 10 October 2018, CISP assessed the applicant and filed a report recommending him for case management by the Moorabbin CISP team. The Court later received an updated report, dated 17 December 2018, making the same recommendation and outlining an initial treatment and support plan.
Stable accommodation and family support
It is proposed that the applicant reside with his step-mother in Heatherton if released on bail. It is submitted she supports the applicant and they have a close relationship.
Ties to the jurisdiction
The applicant has a young daughter who he co-parents and shares custody of with his ex-partner.
Surety
The applicant submits that a moderate surety is available if required by the Court, although no amount is specified.
Unacceptable risk
The applicant submits that appropriate conditions could be attached to a grant of bail to ameliorate any risk to an acceptable level.
The respondent’s contentions
The respondent filed an affidavit in opposition to this application, dated 5 December 2018, submitting the applicant should be refused bail. It is submitted that the applicant has not shown a compelling reason that justifies the grant of bail; and that he is an unacceptable risk of endangering the safety and welfare of the public, committing an offence while on bail, and failing to surrender to his bail. In the evidence and submissions before me, the argument that there is a risk he would fail to appear on bail appears to have been abandoned.
The respondent relies on the report and viva voce evidence of the informant, Senior Constable Jenna King. In cross-examination, Senior Constable King expressed concerns as to the risk of the applicant offending while on bail, noting his previous unsuccessful attempts at drug and alcohol treatment and the link between his substance abuse and previous offending.
Conclusions
There is no doubt the allegations made against the applicant are serious. Police located a considerable amount of drugs and money in the applicant’s premises, which resulted in the trafficking charges. I am also concerned that the applicant has refused, and continues to refuse, to provide details allowing access to his electronic devices.
Considering all of the material before me and the relevant surrounding circumstances, I have determined that the applicant has established a compelling reason justifying the grant of bail, through a combination of factors. It is particularly significant that he faces summary charges, there is a potential delay of the matter being finalised, and that he will be supported by CISP and relevant counselling in the community.
As I have been informed the applicant will be contesting these charges, it appears his matters may not finalise until mid-2019. This would represent a significant period of time in custody, particularly for a matter that will be determined summarily. While these charges may resolve earlier, a precise timeline is unknown.
In my opinion, any risks of granting bail can be ameliorated to an acceptable level by the imposition of appropriate conditions. I note that the conditions imposed will be stringent, and include at least one occasion of judicial monitoring in this Court. This will allow time for the applicant to commence the CISP bail program, and for the Court to receive an update as to his progress.
The conditions of bail will be that the applicant, in summary, undertake to:
(a) attend the Moorabbin Magistrates’ Court on 8 February 2019 and then surrender himself;
(b) reside at his step-mother’s address in Heatherton in Victoria and not change that address without leave of the Court;
(c) remain at those premises between the hours of 11.00pm and 6.00am each day for the duration of bail;
(d) present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) report Monday, Wednesday and Friday to Moorabbin Police Station;
(f) abstain from the consumption of any drug of dependence;
(g) submit to drug testing if required to do so by any member of Victoria Police;
(h) report to CISP at Moorabbin Magistrates’ Court at a designated time;
(i) comply with all lawful directions of any office of CISP;
(j) attend an initial appointment with a designated general practitioner, and attend any additional appointments as directed;
(k) attend psychologist Lisa Jackson for an initial counselling appointment, and attend any additional appointments as directed;
(l) not contact, directly or indirectly, any witness for the prosecution, except the informant;
(m)not leave the State of Victoria;
(n) surrender any passport to the informant within 24 hours and not attend any points of international departure; and
(o) reappear before this Court for judicial monitoring on 24 January 2019.
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