Re MD
[2021] VSC 872
•22 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0305
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by MD |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 November 2021 |
DATE OF JUDGMENT: | 22 November 2021 |
DATE OF REVISED REASONS: | 6 January 2022 |
CASE MAY BE CITED AS: | Re MD |
MEDIUM NEUTRAL CITATION: | [2021] VSC 872 |
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CRIMINAL LAW — Bail — Application for bail — Charges of contravening a family violence intervention order, unlawful assault, criminal damage, reckless conduct endangering serious injury, committing indictable offence while on bail, possessing weapons and driving offending — ‘Compelling reasons’ test — Contested hearing already commenced — Strength of the prosecution case — Mental health of applicant — Onerous custodial conductions due to COVID-19 pandemic — Possibility applicant would spend more time remanded in custody than term of imprisonment imposed upon a finding of guilt — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Stephanie Joosten | Slink & Keating |
| For the Respondent | Mr Alexander Austin | Victoria Police |
HIS HONOUR:
Introduction
By application dated 3 November 2021, MD (‘the applicant’) seeks bail in this Court in relation to two separate matters, the first where the informant is Constable Chelsea Foley (‘the Foley matter’) and the second where the informant is Senior Constable Dean Mason (‘the Mason matter’).
On 4 August 2019 the applicant was arrested and charged with the following four offences by Constable Chelsea Foley:
(a) drive whilst disqualified;[1]
[1]Contrary to s 30(1) of the Road Safety Act 1986 (Vic).
(b) drive an unregistered vehicle;[2]
(c) possess a controlled weapon;[3] and
(d) parking in a disabled area without a permit.[4]
[2]Contrary to s 7(1)(a) of the Road Safety Act 1986 (Vic).
[3]Contrary to s 6(1) of the Control of Weapons Act 1990 (Vic).
[4]Contrary to r 203(1) of the Road Safety Road Rules 2009 (Vic).
On 20 April 2021, the applicant was arrested and charged by Senior Constable Sean Mason and remanded for the following 21 offences alleged to have occurred between 16 and 20 April 2021:
(a) contravene a family violence intervention order (‘FVIO’) (9 counts);[5]
[5]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
(b) unlawful assault (6 counts);[6]
[6]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
(c) commit indictable offence whilst on bail;[7]
[7]Contrary to s 30B of the Bail Act 1977 (Vic).
(d) criminal damage;[8]
[8]Contrary to s 197(1) of the Crimes Act 1958 (Vic).
(e) unlawful assault by kicking;[9]
(f) possess prohibited weapon;[10] and
(g) recklessly engage in conduct endangering serious injury.[11]
[9]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
[10]Contrary to s 5AA of the Control of Weapons Act 1990 (Vic).
[11]Contrary to s 23 of the Crimes Act 1958 (Vic).
Procedural history
On 4 August 2019, the applicant was charged in the Foley matter and issued with a summons to appear in the Latrobe Valley Magistrates’ Court on 2 December 2019. He failed to appear on this date and a warrant was issued. On 20 May 2020, this warrant was executed and the applicant was released on bail.
On 20 April 2021 the applicant was arrested by informant Mason and has been remanded since this date, which is a period of some seven months at the date of this application. His bail in the informant Foley matter was revoked at the time of his arrest and remand.
Status of matters
The applicant is contesting the informant Mason matter and is pleading guilty to the informant Foley matter. A contested hearing of the informant Mason matter commenced on 6 August 2021 in the Frankston Magistrates’ Court with the complainant giving evidence. Due to technological issues, the hearing was unable to conclude and it was adjourned to 1 October 2021. On 1 October 2021 the hearing was again adjourned to 7 December 2021 as the incorrect magistrate had been allocated by court staff.
The applicant was refused bail at applications he made in the Frankston Magistrates’ Court on both 23 August 2021 and 18 October 2021 as he failed to show any compelling reason. He was also found to be an unacceptable risk of committing a further offence whilst on bail, endangering the safety or welfare of another and interfering with a witness or otherwise obstructing the course of justice.
In the first of those applications on 23 August 2021, the presiding Magistrate apparently noted issues with the strength of the prosecution case, issues with the evidence given by the RV (‘the complainant’) at the contested hearing and the applicant’s history. However, the Magistrate was concerned about allegations the applicant had written letters to the complainant from custody seeking to continue their relationship. The applicant denies sending these letters, which were undated, and did not correspond to any prison records. The letters were not investigated further. In the present application, as I understand it the respondent does not press or rely on these allegations.
At the bail application on 18 October 2021, the delay of the contested hearing and the failure to investigate the allegations relating to the letters sent while in custody were put as new facts and circumstances. On this occasion, the Presiding Magistrate was reluctant to grant bail given another Magistrate was part-heard in the contested hearing. Further, it was noted that the delay was frustrating but not inordinate.
The alleged offending
Informant Foley matter
On 4 August 2019 police observed a motorbike parked in a disabled parking spot at a venue in Morwell and upon making enquiries determined its registration had been cancelled on 31 January 2019. Police spoke with venue staff and the applicant was identified as the rider. The applicant apparently tried to hide in an alleyway but was spoken to by police. He denied riding the bike but handed over a key. Police identified and arrested the applicant due to an outstanding whereabouts warrant and found a knife in his possession, which was seized. The applicant participated in an interview and admitted he rode the bike but claimed not to know it was unregistered.
Informant Mason matter
The applicant and the complainant have been in a relationship since 2019 and have two children together. They were living together with complainant’s child from a previous relationship at the time of the alleged offending.
On 16 April 2021, the prosecution allege that during an argument with the complainant, the applicant head-butted her several times. The complainant did not have any visible injuries but notified police of the incident.
On 17 April 2021, the prosecution allege that the applicant and the complainant had another argument during which the applicant poked the complainant in the eye, strangled her several times, grabbed her by the hair to slam her head into the wall leaving a large hole and kicked her in the face and stomach while she was lying on the ground. The complainant fled to a neighbours’ house and called 000, at which time the applicant left on his bike. Police and ambulance officers arrived a short time later and observed red marks inside the complainant’s mouth, on her face and around her eyes. There were children present during this alleged incident.
In preparation for the contested hearing, the Victorian Institute of Forensic Medicine were asked to provide an opinion about the complainant’s injuries based on ambulance records, photos of her injuries and the damage to the wall and her statement.
On 20 April 2021, the Department of Families, Fairness and Housing (‘DFFH’) asked police to conduct a welfare check on the complainant. Attending police officers found a crossbow in the master bedroom and saw the applicant jumping over the back fence. A short time later, the applicant was arrested nearby, charged and remanded in custody.
The alleged incidents on 16 and 17 April 2021 are said to have breached an intervention order in place to protect the complainant from the applicant. No copy of this order has been provided to the Court but the informant Mason’s summary of offending suggests that this order prohibited the applicant from committing family violence against the complainant and damaging her property, indicating it was a ‘safe contact’ order. This order was made on 27 May 2020 for 12 months.
Breach of a community corrections order
The applicant is also on summons for breaching a community corrections order (‘CCO’) that was imposed on 21 May 2018, initially for 12 months, due to alleged non-compliance with the CCO. This order was made in respect of convictions for speeding, driving under the influence of drugs and a breaching a family violence intervention order where the applicant’s former partner was the Affected Family Member. The applicant was ordered to participate in 150 hours of community work an comply with supervision and treatment.
This is the second alleged breach of this CCO. On 3 July 2019, the presiding Magistrate at the La Trobe Valley Magistrates’ Court found that the applicant had breached the CCO by committing further offences of drug driving and breaching the family violence intervention order. The applicant’s CCO was extended to 19 May 2020 and varied to require him to complete 95 hours of community work and the supervision and treatment conditions were removed.
This matter is next listed for guilty plea in the Frankston Magistrates’ Court on 7 December 2021.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[12]
[12]Bail Act 1977 (Vic), s 1B(2).
The parties both submit that the applicant must satisfy the court that there is a compelling reason to justify the grant of bail as he is charged with a Schedule 2 offence of committing an offence against the Act.[13] The compelling reason test will apply as long as none of the circumstances in s 4AA(2) of the Act apply, which in this case it does not appear that they do.[14]
[13]Ibid, Schedule 2, Item 30.
[14]Ibid, s 4AA(3).
In determining whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed by s 3AAA(1) of the Act.[15]
[15]Above n 12, s 4C(3).
If satisfied that compelling reasons exist, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[16] In considering whether the applicant poses an unacceptable risk, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate risk so that it is not unacceptable.[17]
[16]Ibid, ss 4D(1)(a) and 4E.
[17]Ibid, s 4E(3).
Intervention orders and family violence risk
Section 5AAAA of the Act requires the Court to inquire with the prosecutor whether there are any intervention orders in force against the applicant and, where there is a risk of the applicant committing family violence if bailed, whether that risk could be mitigated by the imposition of a bail condition or the making of an intervention order.
As I have already said, on 27 May 2020 a family violence intervention order was made for 12 months prohibiting the applicant from committing family violence against the complainant or damaging her property. Following the applicant’s remand for breaching this order, on 4 June 2021 a further order was made for five years until 3 June 2026. This order prohibits the applicant from having any contact with the complainant, their two children and the complainant’s child from her previous relationship, with the exception of contact for child-care arrangements or to participate in counselling.
According to the report provided by the informant Mason, the applicant has been the respondent in 13 previous intervention orders. The police are said to have received 14 different reports of family violence regarding the applicant made by five different complainants. Details of these reports recorded in the LEAP database, including for several where no further police action was taken, are outlined in the informant Mason’s report. Ms Joosten, who appeared on behalf of the applicant, detailed each of those incidents in the course of her submissions. There was some dispute in some cases over what had occurred. In other cases no issue was taken with these incidents as characterised by the informant Mason. Ms Joosten appeared to accept that those matters did reflect on some level a pattern of family violence.
The applicant’s personal circumstances
The applicant is 32 years old. He has four children, two from two previous relationships and two with the complainant.
The applicant had a troubled upbringing and maintains little contact with his parents, who separated when he was five years of age. The applicant initially lived with his mother, who was often unwell. The applicant’s stepfather physically abused him and once broke his arm when he was nine or 10 years old, which led to him living with his father and grandmother. The applicant experienced trauma and instability during childhood and has difficulty maintaining personal relationships. So much is obvious from the facts that have been presented. He attended seven different schools, was bullied, and alleges that he was sexually abused by a teacher in grade two. Further, he witnessed a fatality at age 11 when a person was hit by a motor vehicle.
The applicant left school in grade eight and was employed consistently until 2018 when he was seriously assaulted by three armed perpetrators and suffered head injuries, a broken jaw and eye socket. In 2019 he was again assaulted during a home invasion, which left him comatose with a broken skull. As a result, he experiences ongoing cognitive, mood and behavioural issues and has a possible acquired or traumatic brain injury.
The applicant’s father abused drugs and introduced him to cannabis at age 13. The applicant also reports using methylamphetamine for several years in his twenties.
Criminal history
The applicant has a criminal history of some significance, commencing in 2013. The applicant has several findings of guilt including for drug offending, dealing with proceeds of crime and, relevantly, recklessly causing injury to a former partner in 2013, contravening a family violence intervention order in 2018 and breaching a CCO in 2019.
The applicant’s submissions
Ms Joosten, on behalf of the applicant, relies on the following matters in support of the application for bail, suggesting that they in combination amount to a compelling reason. Ms Joosten further submitted that the respondent had not established that the applicant posed an unacceptable risk if released on bail.
Nature and seriousness of offending
It was conceded on behalf of the applicant that the charges are serious but submitted this is not the most serious example of this type of offending, particularly because the serious aspect of it was limited to a two day period. I must say, I am never sure how helpful a submission of this kind is. Any family violence offending, especially in circumstances of allegations of physical violence, is serious.
Strength of the prosecution case
It was submitted in the written material filed with the Court and to some degree in oral submissions by Ms Joosten that the prosecution case in the Mason matter is weak. The case is said to be a ‘word-on-word’ matter which relies solely on the complainant’s evidence. However, there does appear to be some other evidence that supports the complainant’s account. Family violence prosecutions often rely solely on a complainant’s evidence and, in my view, this does not make the case weak.
It was submitted that the complainant gave ‘vague and unresponsive’ evidence when the contested hearing commenced in August 2021 and made an application to refer to her statement in order to recall specific details occurring on 16 April 2021. Apparently, the presiding Magistrate declined to grant the application for the complainant to refer to her statement for reasons that are not altogether clear to me. She is yet to give evidence relating to the allegations on 17 April 2021. It was also submitted in the written material that the complainant’s injuries don’t align with her claim that she was head-butted five or six times to the face. Those matters are yet to be litigated at the contested hearing, and will no doubt be resolved by the presiding Magistrate in due course.
Criminal history
It was conceded that the applicant has a relevant criminal history, but submitted that it is limited in the sense that he only has one prior conviction for contravening a family violence intervention order from 2016, which involved a different Affected Family Member who has in fact provided him with a character reference. This incident involved the applicant contacting that Affected Family Member by text message to discuss their child, which he argued he was permitted to do under that order.
It was submitted on the applicant’s behalf that he only has one prior conviction involving violence, being recklessly causing injury to his former partner in 2013, and that the Court should take this gap in violent offending and absence of custodial penalties for his prior criminal offending into consideration. Be that as it may, the applicant should understand that his history does him no credit, especially his history of family violence offending. Further offending of this nature will result in him serving very significant prison sentences indeed.
The applicant also relies on good compliance with bail, having no prior convictions for offences against the Bail Act 1977 (Vic). Although the applicant concedes he has previously ‘disengaged’ with a CCO, it was submitted on his behalf that this related to cognitive and health complications arising out of the assault in 2019.
Special vulnerability
The applicant was assessed by psychologist Sandra Cokorilo in custody on 26 May 2021. Ms Cokorilo reported that the applicant presents with symptoms of severe post-traumatic stress disorder and generalised anxiety disorder arising from several very serious incidents to which I have already referred. Ms Cokorilo did not give evidence at this application, however the contents of her report did not appear to be in issue. The applicant has since commenced medication, slightly easing his symptoms. Ms Cokorilo’s preliminary assessment indicated presence of an acquired or traumatic brain injury given the applicant’s reported problems with memory, attention and concentration. A comprehensive neurocognitive assessment, which cannot be completed in custody, is required to clarify these matters.
Ms Cokorilo notes the applicant requires trauma focussed therapy as he is experiencing severe anxiety, hyperarousal, intrusions, cognitive and emotional avoidance, uncontrollable worry, inability to relax and sleep difficulties and these symptoms are exacerbated and are likely to continue to worsen whilst incarcerated. Since this assessment, the applicant has spent a further five months in custody without access to recommended treatment. On enquiry with counsel for the applicant, it appears there has not been any contemporary psychological assessment of the applicant.
Ms Cokorilo offered the opinion that the applicant presents a low-risk of further offending and ‘did not display criminal attitude or orientation’. Further, his offending in the Foley matter may have been impacted or influenced by his injury, having occurred nine days after he discharged himself from the hospital against medical advice following the assault in 2019.
Ms Joosten submitted that the applicant wishes to seek treatment to address his mental health. This is apparently the first time the applicant has been motivated to obtain such assistance.
Stable accommodation and family support
The applicant proposes to reside with his brother at [redacted], which is approximately 120 km from the complainant’s home.
The applicant is also supported by his mother and it is put that he is working closely with the Department of Health and Human Services to regain contact with his children, which will likely involve a drug testing requirement. The applicant is also supported by his former partner, although their relationship has terminated and will not be resumed.
Employment
It was submitted that the applicant has a good employment history has been actively seeking employment and has some potential options. The prospects of the applicant obtaining further employment seem reasonable.
Onerous conditions and limited access to support services in custody
Due to the COVID-19 pandemic, while in custody the applicant has been prevented from having personal visits and has spent extended periods of time confined to his cell. I have been informed by counsel that the applicant has, on occasion, been confined to his cell for as many as three days at a time. I appreciate we are reaching the end of the pandemic, or so we are informed by the government, and the restrictive custodial conditions necessary to curtail the virus spreading in the Victorian prison system should soon be a thing of the past. To have someone locked in their cell for three days continuously is to me an appalling state of affairs. People should not have to endure such conditions.
Despite fewer programs being available to people in custody due to the pandemic, the applicant has completed a course on methylamphetamine use and obtained a certificate II in cleaning, kitchen operations and business. It was submitted, and clearly this is so, that the applicant requires specialised treatment, particularly trauma-focussed therapy, which is not accessible in custody. The applicant has a general practitioner in Morwell and arrangements have been made for him to obtain a mental health care plan should he be granted bail.
Delay and time spent in custody
The applicant has faced delay in the conclusion of the contested hearing for the Mason matter due to technological and listing issues beyond his control. These circumstances are, on any view, unfortunate. Apparently, a Magistrate previously gave an informal sentencing indication of six months imprisonment in combination with a therapeutic CCO. It is unclear if this indication incorporated the two months he had served at the time it was given; however, as at the date of this hearing, he will have spent 215 days (seven months and two days) in custody.
It was submitted on the applicant’s behalf that, in light of that sentencing indication, the time he will spend remanded in custody will likely exceed any custodial sentence that would be imposed on him upon a finding of guilt should he not be granted bail. It was conceded that the applicant would not be entitled to any sentencing discount pursuant to s 6AAA of the Sentencing Act 1991 (Vic) should he be found guilty after the contested hearing, as he would have been had he pleaded guilty after receiving the sentencing indication. However, it was submitted that the sentencing indication remained a suitable estimate of the likely sentence as many of the migratory matters to which I have referred in these reasons were not before the presiding Magistrate when the indication was given.
Mr Austin on behalf of the responded conceded that, upon a finding of guilt, it is possible that the applicant could be sentenced to a term of imprisonment not greater than time already served in combination with a community corrections order. In my view, it is not by any means inevitable that a custodial sentence imposed on the applicant will exceed the time he has already served should he be found guilty.
Unacceptable risk
It was submitted on the applicant’s behalf that strict conditions of bail would mitigate any risk to an acceptable level. The conditions of bail proposed include the applicant residing with his brother, complying with a curfew, the family violence intervention order and a geographic area exclusion, not using drugs, reporting to a police station and engaging with mental health care and other specialists as his doctor directs.
It was put that the proposed accommodation with the applicant’s brother is a significant distance from the complainant and that the extended time he has spent on remand has reduced any risk of endangering the complainant’s safety.
The respondent’s submissions
Mr Austin on behalf of the respondent submitted that the applicant has not demonstrated any compelling reason that justifies the grant of bail. Further, it was submitted that, if granted bail, the applicant would pose an unacceptable risk of endangering the safety or welfare of any person, committing an offence and interfering with a witness or otherwise obstructing the course of justice.
Nature and seriousness of the alleged offending
It was put on behalf of the respondent that that the alleged offending is particularly serious as it is a male assaulting a female in a family violence context. It is further aggravated by the fact that it occurred in the presence of children and involved strangulation. It should not be thought that simply reciting these matters in any way detracts from the seriousness of this alleged offending. I agree with the respondent’s submissions regarding the nature and seriousness of the offending. This kind of family violence is thoroughly unacceptable, and I take those matters into account.
Strength of the prosecution case
The respondent also submitted that a complete assessment of the complainant’s evidence given during the contested hearing cannot be made until the evidence in chief and cross-examination has been completed. Of course, that is so, and the presiding Magistrate will make an assessment of the prosecution evidence in due course. It was conceded that the complainant’s request to refer to her statement, presumably to refresh her memory, was not permitted although it is presumably open for the prosecution to make a further application to enable her to do so. There are few things in life that are inevitable, although I assume it is inevitable that since the contested hearing of the Mason matter was adjourned, the complainant will have examined her statement and it can be assumed that doing so will have assisted her memory.
It was further submitted that the prosecution case is supported by a signed statement made by the complainant soon after the incident and also the assessment made by the Victorian Institute of Forensic Medicine.
Criminal history
It was submitted that the applicant’s prior criminal conviction for causing injury in 2013 also involved family violence and this conviction and associated intervention order is contrary to the applicant’s assertion in his psychological assessment with Ms Cokorilo that this relationship was not violent and ended amicably.
Personal circumstances
The informant Mason asserts that the applicant is a ‘daily methylamphetamine user with a history of self-harm and suicide threats’. One would hope that over the last seven months of the applicant being remanded in custody, that has not been the case. I do not understand from any of the material before me that either of those matters were observed by Corrections Victoria.
Special vulnerability
The respondent conceded that the applicant likely has special vulnerability.
Stable accommodation
The respondent has concerns over the applicant’s proposed accommodation with his brother, noting that the applicant’s brother also has a history of drug-related dishonesty and family violence offending. The applicant’s brother was convicted of drug-related offences as recently as 26 May 2021, and it was put that the applicant living with his brother would be inappropriate given the applicant’s own apparent issues with substance use. I understand that the applicant’s brother’s conviction of 26 May 2021 related to small quantities of drugs. Should the applicant be granted bail, he should understand that if he were to consume any drug of dependence he will be immediately returned to custody.
Availability of treatment and support services
It was submitted in the written material filed with the Court that the lack of proposed support services in place and the applicant’s history of failing to engage with services is of concern. Further, the applicant has previously been subject to therapeutic conditions as part of a CCO, which failed to deter him from further offending.
Views of the complainant
The complainant has informed police that she fears for the safety of herself and her three children if the applicant were released on bail. However, I do think this difficulty is assuaged by the applicant’s proposed bail address being some distance from where the complainant resides.
It is concerning that the complainant believes the applicant blames her for his imprisonment and that this perception would result in him inflicting serious violence on her, or even violence which might cause her death, if he was released.
Time spent on remand and likely sentence
It was submitted that the applicant will face a term of imprisonment if found guilty of the matters before the Magistrates’ Court. This is almost certainly true. The question is whether such a term of imprisonment would be the same as, less than or greater than the period of seven months he has been remanded in custody. It seems to me that the time the applicant has already served, coupled with a further CCO, might be an appropriate outcome should he be found guilty.
Unacceptable risk
Endangering the safety or welfare of any person
The respondent submitted that there is a risk of the applicant committing further family violence if released on bail given the nature of the current offending and the pattern of family violence in his past relationships and current relationship with the complainant. Further, it was put that the family violence intervention order will not sufficiently deter the applicant.
Committing a further offence
The respondent submitted that the applicant’s prior beaches of CCOs and intervention orders reflects poor compliance with court orders and is demonstrative of a risk of further offending if he were to be released on bail. Further, the applicant was on bail in the Foley matter when the informant Mason offending is alleged to have occurred.
Interfering with a witness or obstructing the course of justice
The respondent submitted there is otherwise an unacceptable risk of the applicant contacting the complainant to pressure her to withdraw her complaint.
Analysis and conclusion
As Beach JA said in Re Ceylan:[18]
[An] inquiry under s 4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. 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.
[18][2018] VSC 361, [46].
So, the question is whether a synthesis of all the matters put on behalf of the applicant compel the conclusion that the applicant’s continued detention in custody is not justified.
He has significant mental health issues which require treatment that is unavailable in custody. He has been remanded in custody at multiple prisons and during the course of that remand has spent days at a time in complete lockdown. As I understand the evidence, the applicant has come to recognise that he needs assistance with both his mental health and substance abuse problems. In my view, the treatment of the applicant for these matters is somewhat urgent.
Also of significance is the fact that the applicant has already spent some seven months remanded in custody. Should the applicant be found guilty, there is a risk that, once the presiding Magistrate has thoroughly digested all of the circumstances of the offending and any mitigating circumstances put on the applicant’s behalf, the period of time he spends remanded in custody may exceed the term of imprisonment to which he is sentenced.
In my view, these matters amount to a compelling reason justifying the grant of bail.
Turning next to the question of risk, in my view the imposition of strict conditions of bail will mitigate risk, which is obviously present in this case, to an acceptable level. I accept that the applicant residing with his brother has its difficulties. I will require, upon making orders for bail, an undertaking from the applicant’s brother to report any breaches of bail to police. In the event that the applicant was to breach bail and the applicant’s brother failed to report this to police, then both the applicant and his brother might expect to find themselves in custody.[19]
[19]Upon orders admitting the applicant to bail being made, the applicant’s brother gave an undertaking to the Court to report any breach of bail to the police.
The applicant is granted bail and I make the following orders:
1.The said MD (‘the applicant’) be admitted to bail upon his own undertaking and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’);
(b)The applicant must notify the informants Senior Constable Dean Mason or Constable Chelsea Foley or their nominee, being an authorised member of Victoria Police, at least 7 days in advance of any proposal to change to his place of residence;
(c)The applicant not leave his place of residence between the hours of 9:00pm and 6:00am;
(d)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informants or their nominee;
(e)The applicant is to report to the Officer in Charge of the Morwell Police Station, or his or her nominee, every Monday between the hours of 7:00am and 8:00pm;
(f)The applicant not commit ‘family violence’ within the meaning of the Family Violence Protection Act 2008 (Vic);
(g)The applicant comply with any current Family Violence Intervention Order in which he is the respondent;
(h)The applicant not contact or attempt to contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, except as permitted by any current Family Violence Intervention Order in which he is the respondent;
(i)The applicant must comply with any current Community Corrections Order (‘CCO’) to which he is sentenced and comply with all lawful directions of Corrections Victoria staff while engaging in a CCO;
(j)The applicant comply with all lawful directions of the Department of Family Fairness and Housing (‘DFFH’);
(k)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(l)The applicant not consume alcohol;
(m)The applicant provide a sample of his breath or oral fluid for testing upon the reasonable request of the informants or their nominee;
(n)The applicant not attend the suburbs of Cranbourne or Cranbourne West, in the State of Victoria;
(o)The applicant attend the appointment booked on 29 November 2021 with Dr Swetha Ennamaneni at Royal Medical Centre in Morwell to obtain a Mental Health Care Plan (‘MHCP’) and engage with all referrals made by Dr Ennamaneni in that MHCP;
(p) The applicant is to appear:
(i)At this Court, for the purpose of judicial monitoring, at 9:30am on 29 November 2021 and thereafter as directed by this Court; and
(ii)at the Magistrates’ Court at Frankston at 9:30am on 7 December 2021 and any such other date thereafter as directed by that Court.
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