Re Moody - [2023] VSC 662

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0209

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Liam Moody

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	13, 20 October 2023 (before Champion J) 10 November 2023 (before Elliott J)
DATE OF RULING:	16 November 2023
CASE MAY BE CITED AS:	Re Moody
MEDIUM NEUTRAL CITATION:	[2023] VSC 662

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CRIMINAL LAW – Bail – Applicant charged with importing and possessing border controlled drugs and related charges – Quantities far in excess of “commercial quantity” – Schedule 1 offences – Requirement to show exceptional circumstances – No exceptional circumstances – Applicant an unacceptable risk of not answering bail – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4A, 4D, 4E.

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APPEARANCES:

Counsel

Solicitors

For the applicant

L Ristivojevic

Sarah Tricarico Lawyers

For the respondent

S Ginsbourg

(13, 20 October 2023)

A Sprague

(10,16 November 2023)

Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Introduction

On 13 September 2023, an application for bail was filed on behalf of Liam Moody (“Moody”). The application originally came before Champion J on 13 October 2023. On that occasion, evidence was adduced from a number of witnesses, and submissions were made in support by Moody’s counsel and in opposition by counsel for the Commonwealth Director of Public Prosecutions. During the course of these submissions, Champion J observed that there was a lack of evidence before him as to the treatment Moody was receiving from Justice Health.[1] As a result, Moody applied for and was granted an adjournment. A subpoena was issued to Justice Health to produce Moody’s up-to-date medical records to demonstrate the extent of any treatment he was receiving as a remanded prisoner.
[1]Justice Health is a unit of the Department of Justice and Community Safety. It is responsible for the delivery of health services for prisoners in Victoria. On 21 August 2023, Moody's solicitors wrote to Justice Health and Corrections Victoria requesting urgent medical treatment and intervention on Moody’s behalf. A series of emails were subsequently exchanged, but no relevant medical evidence was available at this juncture.
The hearing of the application resumed on 20 October 2023. Further submissions were made in reference to Moody’s medical file produced by Justice Health.[2] At the conclusion of the hearing, Champion J indicated he would deliver his decision and reasons the following week.
[2]It is unnecessary to refer to these in any detail in light of the more up-to-date records provided shortly before the hearing on 10 November 2023.
For reasons that it is unnecessary to go into, his Honour subsequently decided it was inappropriate for him to determine the matter. Accordingly, the further hearing was adjourned to 10 November 2023. On that occasion, further evidence was adduced concerning Moody’s health and treatment, and further submissions were made.
Accordingly, the parties agreed this application for bail should be determined based on the evidence adduced and submissions made both before Champion J and me.[3]
[3]There is a full transcript of the 3 hearing days. I understand there is also a transcript recording the reasons why Champion J decided to recuse himself, but I have not been provided with a copy of that transcript.

B. Background

Moody was charged on 11 July 2023 with serious drug-related offences. They include importation and possession of border controlled drugs in quantities far in excess of “a commercial quantity” as defined in the schedule to the Commonwealth Criminal Code 1995 (Cth) (“the Criminal Code”) .[4]
[4]A commercial quantity of ketamine is 1 kilogram: Criminal Code Regulations 2019 (Cth), sch 1 item 146. A commercial quantity of methylenedioxymeth-amphetamine (“MDMA”) is 500 grams: Criminal Code Regulations 2019 (Cth), sch 1 item 174. The specifics of the charges are: (1) between 26 June and 11 July 2023, import a commercial quantity of a border controlled drug, namely ketamine, contrary to s 307.1(1) of the Criminal Code; (2) between 26 June and 11 July 2023, attempt to possess a commercial quantity of a border controlled drug, namely ketamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code; (3) on 11 July 2023, possess a commercial quantity of a border controlled drug, namely MDMA, contrary to s 307.5(1) of the Criminal Code; (4) on 11 July 2023, possess a commercial quantity of a border controlled drug, namely ketamine, contrary to s 307.5(1) of the Criminal Code; and (5) on 11 July 2023, intentionally deal in proceeds of crime of $100,000 or more, contrary to s 400.4(1) of the Criminal Code.
The charges in part arise out of a consignment consisting of 10 pallets, each containing 36 buckets of liquid cement, that arrived in Australia via sea freight from Spain on 26 June 2023. The consignment was intercepted by the Australian Federal Police, who ascertained that 40 of the buckets contained a total of 68.7 kilograms of pure ketamine. On 11 July 2023, the Australian Federal Police conducted a controlled delivery of a substituted consignment. It is alleged this consignment was received and accepted by 1 of Moody’s co-accused. This co-accused and another co-accused loaded the consignment into a Budget Car Rental truck. The consignment was then transported to a property in Lara (“the Lara Premises”)[5] with 1 of the co-accused driving the truck and the other driving an accompanying vehicle. They arrived at the Lara Premises at around 2.11pm.
[5]The Lara Premises were not owned or leased by Moody.
From 1.50pm and for more than 1 hour and 40 minutes, Moody allegedly spent most of his time driving around the immediate vicinity of the Lara Premises.[6] Thus, it is said this conduct was engaged in shortly before and during the period the consignment was being delivered by Moody’s co-accused. It is alleged Moody was conducting counter-surveillance to identify any law enforcement interest in the consignment. At approximately 3.35pm, Moody allegedly attended the Lara Premises where he and his co-accused are said to have transferred the buckets contained within the consignment to a large greenhouse at the rear of the Lara Premises.[7]
[6]On occasion, the vehicle Moody was driving came to a halt.
[7]Evidence of Moody’s DNA (that is, deoxyribonucleic acid) was found on the inner cuff of a glove which was located next to the substituted consignment, and where several of the substituted drug canisters had been removed from the buckets of liquid cement.
A short time later, police arrested the 3 men while they were still on site at the Lara Premises.
The Lara Premises was searched and 2 Esky “Arctic Pro Blue” cooler boxes were uncovered. The eskies had been buried in the ground at the rear of the Lara Premises. It is alleged 1 esky contained 5 large plastic bags comprising a total of 42.3 kilograms of pure ketamine. Closed-circuit television footage appears to show that Moody purchased 2 eskies from a hardware store identical to those uncovered at the Lara Premises; 1 was purchased on 4 July 2023 and the other was purchased on the morning of 11 July 2023.[8]
[8]There was no direct evidence of how these eskies were transferred to or buried at the Lara Premises.
Also on the morning of 11 July 2023, Moody allegedly deposited $1,000 in cash at a Commonwealth Bank automated teller machine, directing payment to the bank account of the freight company that held the consignment. Shortly thereafter, Moody allegedly also deposited $3,059.50 in cash with the assistance of a bank teller at the same branch of the Commonwealth Bank, again directing payment to the same freight company.[9] Within 10 minutes of the latter deposit, receipts with respect to those 2 payments were then emailed to the freight company by, it is alleged, a person using a false name.[10] This name had been given to the freight company as the consignee’s contact name, together with the name of a construction company group (which group existed but had no such employee).
[9]Both of these transactions were captured on closed-circuit television footage.
[10]There was no evidence that Moody himself sent this email or was in control of the email address from which it was sent.
Evidence of Moody’s fingerprints were allegedly found on a mobile phone that had a note attached to it which stated the name Michael Smith (being a different name to the consignee’s contact name) and the phone number of the mobile, together with the name of the company group. This mobile phone was found in the vehicle Moody had been driving,[11] together with a fraudulent Victorian driver’s licence in the name of Michael Smith. It is alleged the driver’s licence displayed an image resembling Moody.
[11]The vehicle was registered in the name of Moody’s partner.
Search warrants were also executed at 2 storage units located in Yarraville and Williamstown. These units are alleged to have been controlled by Moody.[12] One was leased in the name of Moody’s brother and the other in the name of Moody’s domestic partner. The storage units were rented from October 2020 and 3 April 2022 respectively. Approximately 25 kilograms of MDMA, 14 kilograms of ketamine, $211,110 in cash and 2 gel blaster imitation firearms were seized.
[12]There is evidence that 1 of Moody’s co-accused also visited the Yarraville storage unit.
Thus, the charges are concerned with, amongst other things, a total of 111 kilograms of ketamine. It is estimated that the “conservative street value” of this quantity of ketamine would be in the order of $20 million.
On 27 September 2023, the Australian Federal Police executed a search warrant at office premises in Sydney. Documents were seized that disclosed, amongst other things, that Moody’s brother (“Christopher”) received a payment on 27 June 2023 of $6,995.22 from a global platinum MasterCard in the name of Moody’s mother. On the same day, Christopher paid $7,649.90 into the bank account of the same freight company referred to above.
Later on 27 September 2023, the Australian Federal Police executed a search warrant at office premises in Melbourne. The documents seized revealed, amongst other things, payments since April 2023 for the email address domain used in the email sent to the freight company on 11 July 2023.[13] It is alleged that Moody or Christopher utilised his mother’s credit card to purchase the email domain name.
[13]See par 10 above.
What is set out above is only a brief summary of the facts alleged. A 34 page statement of facts (served as part of the brief of evidence) provides considerably more detail of the evidence to be relied upon by the prosecution. The body of evidence is such that there is substantial weight in the respondent’s submission that the prosecution case is very strong. Although this was not accepted by Moody’s counsel, it was acknowledged that there are triable issues. In adopting this position, it was stated that the prosecution case is not an overwhelming case and it is defendable.[14] Quite properly, it was not suggested by Moody’s counsel that the prosecution’s case is weak. The strength of the case as presented on this application must be taken into account.[15]
[14]Moody relied upon oral evidence given by the informant in the previous bail application in the Magistrates’ Court on 10 August 2023. On that occasion, the informant confirmed the case against Moody was circumstantial and that: (1) there was no evidence that Moody was the organiser of the importation; (2) once the consignment was in Australia, there was no evidence that Moody organised the importation; (3) there was no evidence to support an inference or any evidence to say what was contained in the consignment; and (4) there was no evidence Moody had any awareness or knowledge of what was contained in the consignment. Moody challenged whether there was sufficient evidence to establish that he had knowledge of, or was reckless as to, whether the containers contained a border controlled substance.
[15]For completeness, 1 of Moody’s co-accused was refused bail on 28 July 2023 and the other was granted bail on 9 August 2023.

C. Legislation and principles

The charges against Moody include offences under Schedule 1 of the Bail Act 1977 (Vic).[16] It was common ground that Moody must therefore demonstrate that exceptional circumstances exist to justify the grant of bail.[17]
[16]Sch 1 item 9.
[17]Bail Act, ss 4AA(1), 4A(1A).
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must take the case out of the normal so as to justify the admission of bail to the applicant.[18] However, it is not an impossible standard to reach. As observed in Woods v Director of Public Prosecutions:[19]
The Bail Act does not define “exceptional circumstances”. Reflecting the ordinary and natural meaning of these words, it has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”. The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances … [I]t is the (oft-cited) view of Vincent J in Moloney[20] that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”. This “appears to be a question of degree” in each individual case.
[18]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[19](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J) and the cases there cited. Substantial reforms to the Bail Act were introduced on 1 October 2018, however, the expression “exceptional circumstances” remains.
[20](Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2.
If the court is satisfied there are exceptional circumstances, it must then consider whether the applicant presents an unacceptable risk of the kind referred to in section 4E(1)(a) of the Bail Act.
If the court is satisfied there is an unacceptable risk that Moody, if released on bail, would, relevantly, interfere with a witness or otherwise obstruct the course of justice in any matter or fail to surrender into custody in accordance with the conditions of bail, then the court must refuse bail notwithstanding it is satisfied that the exceptional circumstances test has been met.[21] The burden of proving that Moody poses an unacceptable risk rests with the prosecution.[22]
[21]Bail Act, s 4E(1)(a)(iii) and (iv).
[22]Ibid s 4E(2).
In considering whether exceptional circumstances exist and whether Moody poses an unacceptable risk of the kind referred to, the court must take into account the surrounding circumstances including but not limited to those in section 3AAA of the Bail Act,[23] namely:
[23]Ibid ss 4A(3), 4E(3)(a).
…
(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;
...
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including 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;
…
In assessing the risk, the court must take into account whether there are conditions of bail that may be imposed to mitigate the risk.[24] In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[25]
[24]Ibid s 4E(3)(b).
[25]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).

The notion of unacceptable risk contained within the Bail Act does not concern merely any risk of reoffending. Rather, the question is whether such a risk is unacceptable.[26]
[26]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
Where the period of time on remand would likely exceed the sentence ultimately imposed, such a factor is of particular significance to the determination of whether both the exceptional circumstances and unacceptable risk tests are made out.[27]
[27]HA v The Queen [2021] VSCA 64, [63] (Maxwell P and Kaye JA).

D. Further facts and submissions in support

Moody relied upon a number of matters in seeking to establish exceptional circumstances. It was noted that, although the prosecution’s case must be taken at its highest, Moody disputes the charges and intends to put the prosecution to proof in respect of all the charges.[28]
[28]See also par 16 above.
It was submitted that Moody has no relevant prior criminal history. Moody has a prior conviction for recklessly causing injury, ultimately resulting in a term of imprisonment of 3 months and a 12-month community correction order.[29] He has no prior convictions concerning border controlled substances. Further, Moody has not breached any previous bail conditions.
[29]This sentence was ordered on appeal from the original sentence.
In relation to Moody’s personal circumstances, it was submitted it had been demonstrated he has a strong, loving and supporting relationship with his domestic partner who he met 6 years ago. She is a Brazilian citizen and works as a nanny. Moody is her visa sponsor.
Further, Moody’s counsel referred to the support of his family. Except for 2 of them, all members of Moody’s family were present in court on 13 October 2023. Family members have also attended the subsequent hearings in this matter.
Moody’s father works for the Young Men’s Christian Association. As part of his role, he mentors troubled young people. He gave evidence that he was in a position to provide a surety in the amount of $290,000, secured by equity in the family home, together with $20,000 in savings. He stated that Moody would be able to live in the family home if granted bail. Other friends and family have also offered sureties in various amounts. A total of approximately $360,000 has been offered as surety in support of Moody’s application for bail.[30]
[30]The husband of 1 of Moody’s cousins, offered $20,000 by way of equity in a property owned by him as surety; 7 other friends and family members of Moody offered personal savings in various amounts ranging from $2,500 to $10,000 as surety in support of Moody’s application for bail.

Also residing at the family home is Moody’s mother, who works as a school administrator, and more recently Moody’s partner. Moody’s mother has made a statement to police. In her statement, she confirmed that family members utilised her credit card. However, the transfer of $6,995.22 on 27 June 2023 was made without her knowledge.[31]
[31]See par 14 above.
Moody has others who are supportive of him. There is no suggestion that any of Moody’s family based in Australia or his partner have been anything other than cooperative with the police.
The police are not aware of Moody having had any contact with Christopher. Obviously, Christopher is a person of interest and has been identified by police as a suspect. Christopher lives in Indonesia, having departed Australia in September 2020. He has remained offshore since that time. No statement has been taken by police from him.
Moody is a 37 year old who was born in Melbourne. After leaving home at the age of 20, Moody earned a living working on a cruise ship as a professional dancer for around a year. At 21, he began working in the construction industry. He has had various jobs in that industry. However, there was no suggestion that such employment (which has been intermittent) could explain the amount of cash, or “unexplained wealth” to use the language of the informant, that was located in 1 of the storage units referred to above. He has been offered employment by the owner and managing director of a construction company should bail be granted.
Significant weight was placed upon Moody’s current mental health. His father gave evidence that on the occasions he has spoken to Moody in custody “he doesn’t seem to take in anything that I tell him”. This was said to be in stark contrast to what Moody was usually like. Moody was described as previously being switched-on and intelligent, but his father was now concerned for his mental health and wellbeing. He stated that Moody was not the person that he knows. Based on his experience in dealing with people having struggles in life, his father expressed his concern that Moody may harm himself.
Moody was assessed by a forensic psychologist, Pamela Matthews (“Matthews”).[32] She provided a report dated 27 July 2023 in which she recorded that Moody was suffering from a major depressive disorder, presenting with symptoms of depressed mood most days. Matthews stated that Moody’s symptoms were causing him significant distress and, at a minimum, impairing his social functioning. It was noted that Moody did not suffer from any schizoaffective disorder and has no history of mania or other psychological disorders. Matthews concluded that Moody’s symptoms were moderate to severe and reactive to his present situation.
[32]Matthews has been in practice for approximately 25 years.
Matthews’ report referred to a self-report scale designed to measure negative emotional states. On this scale, Moody scored in the extremely severe range for depression, moderate range for anxiety and normal range for stress.
In a further report, in the form of a letter dated 15 August 2023, Matthews again reported upon Moody suffering from a major depressive disorder.[33] This report stated that Moody’s cognitive functioning was estimated to be in the average to high average range and that insight was present. Matthews expressed her concern about Moody’s avoidance of her questioning regarding suicide and the level of his hopelessness. She stated that she had asked Moody about anti-depressant therapy, which in her opinion he required to improve his mental functioning.
[33]This report was provided to convey Matthews’ concerns to Justice Health.
In giving her evidence on this application,[34] Matthews confirmed the disorder from which Moody presently suffers was not pre-existing before incarceration. She described Moody as “almost always nearly catatonic”. As for treatment, Matthews considered Moody required close monitoring. She confirmed her view that he required both psychological and pharmacological intervention. Matthews stated that it was better to treat post-sentence inmates rather than those on remand because it was difficult to get the assistance required while on remand. She said she suspected if Moody was being more of “a bother” he might get more assistance, but because he was so withdrawn she seriously doubted whether he was bothering anybody to get the treatment he required.
[34]Her evidence was given on 13 October 2023. Matthews previously gave evidence on 10 August 2023 in support of Moody’s earlier bail application, which was refused.
Matthews’ explained to Moody that his medication may result in uncomfortable side-effects (such as headaches, nausea and sleep disturbance) that can commonly arise. Matthews’ evidence was that this was because there may be no apparent change for up to a month, as medication for depression takes time to reach therapeutic levels in the bloodstream. She referred to a need to persevere for the medication to be effective. She also stated that she had provided multiple explanations to Moody of the need for him to persevere with treatment.
Matthews referred to another psychologist’s perception that Moody was so uncomfortable with the side-effects of his medication that he was likely to stop taking it.[35] Matthews’ evidence was that, after time if he still had side-effects, he could be placed on similar but different medication. She referred to the need to engage a psychiatrist or other qualified doctor to prescribe the appropriate medication.
[35]See par 48 below.
The correspondence before the court included Moody’s solicitor recording that Moody had been seen by an employee of Justice Health who had asked Moody whether he would like to see a psychiatrist so he could be administered medication. Moody stated he wanted to obtain advice before providing a response.
Although the evidence was not entirely clear, the court was told that Moody had been prescribed Zoloft, which was dispensed for 2 days. It was not available on the third day. After this, Moody did not return to taking the medication as he described having bad thoughts and not being in a very good state.
Yet a further Matthews report, dated 9 November 2023, was tendered on the final hearing day. Matthews recorded that she had again examined Moody earlier that day over an audiovisual link. In referring to Moody’s mental state, while still presenting with a depressed mood and congruent affect, Moody’s capacity to absorb questions and answers was less impaired than had been previously observed. Moody emphasised to Matthews that it was important that he lived for his family, which was to be contrasted with the previous examination where he avoided questions about suicide.
Moody reported to Matthews that he had trialled Zoloft twice, but ceased using the medication given the continued symptoms of heightened anxiety and depressive thoughts he experienced. Moody stated that he was due to see a prescriber on that day to begin a trial of Avanza. Matthews explained that this anti-depressant acted on serotonin differently to Zoloft. Moody also reported he was due to see a forensic psychologist the following day.
The report recorded Moody was working in the kitchen at the correctional facility 6 days per week from 10am to 3pm, though at times he was unable to function. Moody reported his concentration remained impaired and that his mind went around in circles when trying to practice meditation. Moody said he had begun pulling out his hair and was trying not to do so. Matthews observed him pulling his hair frequently during the examination without an apparent awareness of his behaviour. The report continued:
[Moody] did not present with formal thought disorder, delusional constructs, perception disturbances, or other indications of psychosis. Cognition is unchanged from the last observation.
OPINION:
Apart from some progress with the fluidity of speech, [Moody] remains seriously depressed.
Matthews expressed her concern about the severity of Moody’s symptoms, particularly the impairments to his concentration and ability to formulate clear thoughts. She expressed a view that Moody’s mental state impacted his ability to instruct his legal team adequately, but did not state the basis for such an opinion beyond referring to the severity of Moody’s symptoms.
Finally, Matthews opined that Moody would require daily supervised treatment and medication if improvement to his mental health were to be achieved.
In addition to consultations with Matthews, Moody has been engaged about once a fortnight in private counselling with another psychologist employed at Matthews’ clinic. However, in light of the fact that Moody is on remand, it was contended that such treatment fell well short of what is required in the circumstances.[36]
[36]As at 13 October 2023, Moody had attended 5 or 6 60 minute sessions with this psychologist.
Moody’s counsel proposed that Moody would reside at Harmony House, a health wellness and recovery centre, if bail were granted. Evidence was led of Moody’s suitability to participate in a 90-day residential treatment program at the inpatient facility which would focus on his mental health issues. The centre has a capacity of 10 residential patients, is staffed 24 hours a day and has closed-circuit television surveillance which monitors both inside and outside the premises.[37] It was suggested that, although Harmony House was not a “lockdown unit or a correctional facility”, if an inpatient were to leave the premises they would be detected within at least half an hour because of the constant activities that occur at the centre.
[37]The footage is reviewed first thing in the morning and at about 5 o’clock in the afternoon each day, in addition to live monitoring of the cameras.
The clinical director and general manager of Harmony House gave evidence that there were 7 residential patients at the facility at that time, 2 of whom were on bail.[38] He indicated a willingness to give an undertaking to the court to report to authorities immediately if Moody were to breach any conditions of bail.
[38]The general manager has a double diploma in “alcohol and other drugs” and “mental health”. He is not qualified as a psychologist, but stated that the centre had access to psychologists and psychiatrists outside the facility.
The general manager prepared an assessment of Moody. He concluded that Moody was suffering from some high-end mental health issues. He expressed the view that an optimal period of 3 to 6 months for residential treatment applied to someone suffering from major depression. Under cross-examination, the general manager accepted that Harmony House was focused predominantly on people with mental health problems related to substance abuse and addiction. He stated that only approximately 10 percent of inpatients had health problems not related to substance abuse. There is no suggestion on the evidence that Moody has any substance abuse issues presently or has had any such issues at any time in the past.[39]
[39]There was evidence before the court of Moody’s experimental use of cannabis and ecstasy when he was younger, but he reported that he had not used any such substances since 2013.
Matthews’ evidence concerning Harmony House was that she had briefly spoken with the general manager, but had not attended at the centre herself.
The solicitor with the care and conduct of this application deposed that she had spoken to Moody approximately 10 times whilst he has been on remand. She referred to Moody’s inability to maintain eye contact, inability to focus on information provided to him and the need for her to constantly repeat information to him. Significant delays were experienced between the provision of information and Moody attempting to process that information. The solicitor observed that Moody would often “struggle to respond” to the information provided to him. The solicitor expressed real concern about her ability to obtain proper instructions in order to advance Moody’s defence if his present mental state were to remain.
In addition to raising these matters, Moody’s counsel conceded that, in light of the quantity of border controlled substances, the alleged offending was a serious example of the offences charged. However it was submitted the serious nature of the offending must be taken into account in the context of the strength or otherwise of the case against Moody.
Initially, it was proposed that the conditions of any bail would also include electronic monitoring by requiring Moody to wear an electronic monitoring anklet. Ultimately, after this proposal was categorically rejected by the respondent, it was withdrawn.
During the final day of hearing, in addition to Matthews’ further report, more up-to-date details of Moody’s health records held by Justice Health were tendered.[40] Those records included a health service request form dated 12 October 2023 in Moody’s handwriting. It stated “My Zoloft prescription is making my condition worse. I need help please.” The following day, Moody refused to take his medication before the hearing of this application on that day. On 18 October 2023, a short term review of Moody’s treatment was held. The report of that review provided a history of Moody’s medication as already touched upon.
[40]As referred to in par 1 above, earlier records were produced which showed that Moody was first seen by a psychiatric registrar on 3 October 2023.
On 24 October 2023, Moody was seen by a psychiatric registrar who had seen him previously. He was reviewed for approximately 40 minutes, and spent most of that time crying. The report recorded Moody had been taking sertraline regularly in the last few days, but had a panic episode that morning. Moody reportedly stated that he would continue with the sertraline for now, but would stop if he got further side-effects in a week.
It was strongly recommended to Moody that he engage in psychological treatment concurrently with his medication, to which Moody was recorded as being “now agreeable”. Moody was also adamant he would not suicide or harm himself, though spoke of the unbearable emotional pain he was experiencing. Under the heading “Risks”, it was stated that none were identified immediately but would be likely to escalate if bail was refused. It was also suggested such an outcome would be likely to elevate his risk of suicide.
A health service request form completed by Moody on 29 October 2023 stated: “I need to change my medication or really up my dosage please, because it’s not working. I really need help please”.
On 30 October 2023, Moody was attended upon again. The report of that attendance recorded ongoing depressive symptoms but no acute elevated risks. The plan was to increase the sertraline dosage to 100 milligrams. The report stated that Moody was willing to consider dose titration with sertraline, which he reportedly had not agreed to at the last review.
A letter addressed to Moody sent by Forensicare on 30 October 2023 was prepared after the appointment held that day. The letter noted a referral on his behalf had been made, which referral had been reviewed. Moody was informed that he had been accepted for follow-up treatment by Forensicare, but a clinician was not available at that time. Moody was placed on a waiting list and was told he would be contacted when a clinician became available.
On 3 November 2023, an attempt was made to attend to Moody, but Moody was not available because he was working in the kitchen at the correctional facility delivering meals. A further attempt was made to contact Moody later that day, but according to the report Moody was “using phones and unavailable to talk”. It was stated that the writer hoped to inform Moody that he had been allocated for psychological treatment, with a plan to contact Moody the following week.[41]
[41]There was no evidence that this had occurred, but at the time of the final day’s hearing a full week was yet to lapse.
On Saturday, 4 November 2023, Moody was again attended to by a nurse for a short term review. The report stated Moody wanted to change his medication from sertraline to Avanza. He said he had not ingested 100 milligrams of sertraline as prescribed but had snapped the tablet in half because it made him “feel worst”. According to the report, Moody stated he had stopped taking sertraline. He said that despite the doctor giving him an education about it, he did not want to take sertraline. The impression recorded in the report was that Moody was tired and of low mood in the context of non-compliance with his prescription. The report of this review concluded with a heading “Plan and Action”, under which it was noted that an appointment had been made with a “psych consultant” on 9 November 2023. It was noted that in relation to the intervention that the “Goals Review” was completed. There was no evidence before the court on 10 November 2023 as to what had occurred as a result of this appointment.[42]
[42]Moody’s counsel confirmed that the consultation had taken place, albeit it was stated from the bar table that he was seen “briefly”.
Having gone through this evidence, Moody’s counsel accepted that there had been a “stop-start” approach by which Moody had only taken medication for short periods of time. It was submitted that the upshot of this evidence was that despite the recommendations of Matthews and a psychiatric registrar of Justice Health, Moody still had not received the psychological and pharmacological treatment recommended to him.
Moody’s counsel also submitted the evidence demonstrated that “nothing” was occurring in relation to Moody’s treatment. While I accept that the situation has been far from optimal, the evidence shows that attempts have been, and continue to be, made to assist Moody and that part of the situation now being relied upon in support of bail has been created by Moody’s own unwillingness to act in accordance with the advice he has been given in relation to his medication.

E. Analysis

As outlined above,[43] the first question to address is whether or not exceptional circumstances exist.
[43]See par 17 above.
The nature and seriousness of the alleged offending, including that it is a serious example of the offences as charged, has already been referred to; as has the strength of the prosecution case and the likely sentence to be imposed if Moody were found guilty of the offences as charged.
Moody comes from a supportive family. The account he has given to others of his upbringing shows that his parents have provided a loving environment in which he was raised. If Moody were granted bail, it could be expected that he would continue to receive strong and positive support in that regard. It is also noted that numerous circumstances referred to in section 3AAA of the Bail Act which might have otherwise been adverse to Moody’s application do not exist in this case.[44]
[44]Bail Act, ss 3AAA(d)–(f), (m)–(n).
There is no real issue of inordinate or exceptional delay. This matter will be heard in the County Court of Victoria and the delays suffered in that court as a result of the pandemic no longer persist.[45] Without descending into the necessarily speculative details provided in relation to the timing of the committal hearing and any short-term adjournments that might be sought, the length of time Moody is likely to spend in custody if bail is refused is not exceptional either on its own or when considered with the other factors. On any view, if Moody is found guilty of the offences as charged it is highly probable that his sentence would far exceed any time spent in custody on remand.
[45]County Court of Victoria “Chief Judge Peter Kidd provides an update on the status of the County Court’s COVID-19 backlog of criminal jury trials” (Media release, 9 October 2023).

The critical circumstance of this application is the diagnosis that Moody is suffering from a major depressive disorder. There are a number of observations to make about this diagnosis.
First, it is a disorder that has only recently come about. Secondly, there has been insufficient time to treat the disorder as yet. Thirdly, to date the treatment available while Moody has been on remand has been unsatisfactory, including as a result of the failure of Moody to act in accordance with medical advice given to him. However, it is plain that Justice Health is now attempting to address these issues. In order to do so, Justice Health will require a greater degree of cooperation from Moody than he has shown in the past. Fourthly, although obviously a question of degree, it is far from surprising that Moody is in a depressive state in light of the situation he finds himself in. Fifthly, the most recent report provided by Matthews suggests that there has been an improvement in Moody’s condition. Sixthly, the ability of Moody to reside at Harmony House for a period of 3 months or more, and then to reside at his parents’ home are positive factors; as is the amount offered by way of surety. However, these factors cannot be considered exceptional.
Further, I am not satisfied that in due course Moody will not be capable of giving instructions to his lawyers to defend the case against him. The solicitor’s evidence reflects the “current state” of Moody’s capacity to instruct. It does not, and could not, properly go beyond that. The expert evidence on this point was far from probative. So much was effectively conceded in the submission made by Moody’s counsel that a formal assessment “by an appropriate qualified expert” may need to be made in the future. Further, the evidence discloses that for no significant period of time to date has Moody complied with the recommendations in relation to his prescribed medication. Until that is to occur, it is unlikely a proper assessment could be made as to whether Moody’s mental state is such that he is incapable of giving meaningful instructions in the future.
To summarise, having considered the circumstances relied upon individually and collectively,[46] including taking into account the surrounding circumstances, Moody has failed to discharge the burden of satisfying the court that exceptional circumstances exist that justify the grant of bail.[47]
[46]Which include the further matters referred to below.
[47]Without descending into the detail, the facts of this case are clearly and significantly distinguishable from the cases of Re SP [2022] VSC 626 and Re BLC [2022] VSC 128 relied upon by Moody.
In any event, even if I had found that exceptional circumstances existed, the prosecution has satisfied me that Moody presents as an unacceptable risk of failing to surrender into custody in accordance with any conditions of bail.
An important matter in assessing risk is that the mental condition that Moody now suffers from was not in existence at the time of the alleged offending.[48] It is not a situation where treatment would mean that the risk of reoffending would be reduced because a pre-existing mental state could be successfully addressed. In other words, successful treatment of his current major depressive disorder would not reduce the risk that Moody would have otherwise presented had he not suffered from his mental illness as a result of his incarceration.
[48]Moody was assessed by a registered psychiatric nurse on 13 July 2023 and no mental health issues were identified.
It is not disputed that if Moody were found guilty of the charges laid against him, he would face an extended period in prison that would represent a significant portion of the remainder of his years as a 37-year-old. Although there is no evidence of Moody having access to further substantial sums of money, there must be a real risk of Moody accessing sufficient funds to leave the jurisdiction if he so desired. The strength of the prosecution’s case is relevant to the risk involved. Further, the estimated value of the seized goods suggests that forfeited sureties in the total amount offered might be of little moment to Moody.[49] Furthermore, with a brother who has already departed from Australia in September 2020 and has not returned, the risk of flight is increased. It is also relevant to the assessment of Moody’s potential flight risk that his partner is a foreign citizen.
[49]Compare Re Zayneh [2023] VSC 470, [41] (Beach JA).
In addition, the evidence strongly suggests that Moody has been willing to falsify documents using his own image, and to utilise objects and services registered or recorded in the name of his partner or a member of his family for his own perceived benefit.[50]
[50]Self-evidently, these matters also go to the risk of interfering with witnesses.
In short, when these matters are considered together with the other surrounding circumstances already referred to, there is an unacceptable risk that Moody would not comply with a condition that he not leave the jurisdiction.

F. Conclusion

It follows that the application must be dismissed. Accordingly, bail is refused.