Re Morrison
[2023] VSC 643
•27 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0227
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an application for bail by JOSHUA MORRISON
BETWEEN:
| JOSHUA MORRISON | Applicant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2023 |
DATE OF JUDGMENT: | 27 October 2023 |
DATE OF REASONS: | 24 November 2023 |
CASE MAY BE CITED AS: | Re Morrison |
MEDIUM NEUTRAL CITATION: | [2023] VSC 643 |
---
CRIMINAL LAW — Application for bail — Exceptional circumstances test — Charges of abduction or detention for a sexual purpose, administration of an intoxicating substance for a sexual purpose, grooming for sexual conduct with a child under the age of 16, sexual assault of a child under the age of 16 — Criminal history related to driving offences, possession of weapons and drugs — Applicant subject to Community Corrections Order — Complex health issues — Intervention Orders in force — Delay — Exceptional circumstances — Unacceptable risk not shown — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4D, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L McPhie | McFarlane Criminal Lawyers |
| For the Respondent | P Pickering | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Joshua Morrison [‘the applicant’] seeks bail on the following charges, which are alleged to have occurred on 3 September 2023:
(a) abduction or detention for a sexual purpose (two charges);
(b) administration of an intoxicating substance for a sexual purpose (two charges);
(c) grooming for sexual conduct with a child under the age of 16 (two charges);
(d) sexual assault of a child under 16 years old; and
(e) committing an indictable offence whilst on bail.
Procedural history
At the time of the alleged offending, the applicant was serving a community correction order [‘CCO’] for various offences (including offences against the Bail Act 1977 (Vic) [‘the Act’]). He was also on bail for unrelated matters [‘the bail matters’].
On 6 September 2023, the applicant was arrested and remanded into custody.
On 8 September 2023, the applicant applied for and was refused bail at the Latrobe Valley Magistrates’ Court. The Magistrate was satisfied that exceptional circumstances were made out, but was of the view the applicant posed an unacceptable risk of endangering the safety or welfare of any person; and interfering with a witness or otherwise obstructing the course of justice in any matter.
The same day, two personal safety intervention orders [‘PSIOs’] were made in respect of the two complainants:
(a) the first naming EH as the protected person and the applicant as the respondent; and
(b) the second naming ES as the protected person and the applicant as the respondent.
Each of the orders includes full no‑contact conditions and will last until 7 September 2027, unless extended or varied prior to that date.
On 3 October 2023, the applicant was sentenced in relation to the matters for which he had been on bail at the time of the present alleged offending. He was convicted of possessing methylamphetamine, possessing a prohibited weapon without exemption or approval, and possessing a controlled weapon without excuse, and sentenced to an aggregate fine of $1,200. It is of some note that these offences did not relate to offending of a sexual nature.
Having been refused a grant of bail in the lower court, on 4 October 2023, the applicant filed a notice of application for bail in this court.
The applicant’s matters are next listed on:
(a) 9 November 2023 in the Latrobe Valley Magistrates’ Court, for judicial monitoring of the applicant’s progress with his CCO; and
(b) 1 December 2023 for committal mention in the Latrobe Valley Magistrates’ Court, in respect of the matters which are the subject the present application.
The applicant has remained in custody since 6 September 2023, a total of 44 days at the time of the bail hearing.
The alleged offending
Overview
On the evening of 2 September 2023, the applicant, aged 29, invited two girls, EH and ES [‘the complainants’], aged 13 and 14 years old respectively, to stay at his house for the night. At his house, he allegedly gave them cannabis, showed them knives, and sexually assaulted EH. When they went to leave, he tried to stop them by locking the front door, and then followed them outside with a knife. The complainants called police at 6:00am the next morning and were located around the corner from the applicant’s home. On 6 September, the applicant was arrested and interviewed. He admitted that the complainants had stayed the night at his home, but denied the alleged offending.
The prosecution case
At 8:20pm on 2 September 2023, EH and ES boarded a bus. The applicant was also on the bus. He overheard the complainants discussing their uncertain sleeping arrangements for that night, and approached them with an offer to stay at his house. The complainants accepted the applicant’s offer, and went with him to his house in Moe.
At the applicant’s house, the applicant gave the complainants food and cannabis. When the complainants started smoking the cannabis, the applicant informed them that it was laced with other drugs.
It is alleged that as the evening progressed into the early hours of the morning, the applicant:
(a) showed the complainants a large quantity of knives;
(b) threw knives at walls within the house;
(c) made sexual remarks towards the complainants;
(d) rubbed EH’s inner thighs and groped her breasts; and
(e) attempted to covertly film his interactions with the complainants, by concealing his mobile phone behind a piece of paper.
At 12:21am on 3 September, the applicant called EH’s mobile phone twice.
At some point, ES went to use the bathroom. Once alone with EH, the applicant spread her legs, laid on top of her, and began to grind against her, saying they should have sex. EH refused, repeatedly telling the applicant that she was 13. He replied “No, I think you are 17”. ES returned to the room, saw the applicant lying on top of EH and grinding against her, and noticed EH’s distress. The complainants then decided to leave the address.
As the complainants collected their belongings, the applicant locked the front door. The complainants distracted the applicant, unlocked the door, and fled the address. The applicant followed them outside, took his shirt off, tied a blue blood‑stained bandana around his head, and stabbed the fence with a knife.
At 6:00am on 3 September, EH called police. Police located the complainants shortly after, at an address around the corner from the applicant’s house, and brought them to Moe Police Station.
Social media posts, search, arrest and interview
Later that day, on 3 September, the complainants’ parents made social media posts about the alleged offending. Police called the applicant and he agreed to attend Moe Police Station at 7:00pm for interview.
At 5:15pm, police executed a search warrant at the applicant’s house and seized various items, including three kitchen knives, a blue and white bandana, a homemade bong, unmarked pills, an audio recording wristband, and other digital devices. A friend of the applicant who had been couch‑surfing at the house was present; the applicant was not.
At 7:00pm, the applicant failed to attend Moe Police Station as agreed upon.
On 6 September, the applicant was located in Morwell, arrested, and transported to Morwell Police Station for interview. During the interview, the applicant admitted that he had met the complainants on the bus to Moe, that they had gone to his house in Moe with him, and that he understood their ages to be 14. He denied the alleged offending, stating that the complainants stayed in a spare room and left at 6:00am the following morning.
Uncharged matters
On 6 September, EH’s father alleged that the applicant had contacted students at EH’s school and attempted to have her assaulted in retaliation for her disclosures to police. This allegation has not yet been investigated and the applicant has not been charged, and as such the allegations are not yet established.
The applicable legislation
When interpreting and applying the Act, the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Because the applicant is accused of a Schedule 2 offence[2] within the meaning of the Act, which is alleged to have been committed during the period of a CCO made in respect of the applicant for another Schedule 2 offence,[3] bail must be refused unless he satisfies the court that exceptional circumstances exist that justify the grant of bail.[4] This threshold is high, and the applicant’s case must be “out of the normal”.[5] In considering whether exceptional circumstances exist, the court must take into account all of the relevant surrounding circumstances, including those set out in section 3AAA of the Act.[6]
[2]Namely, an offence against section 47(1) of the Crimes Act 1958 (Vic) (abduction or detention for a sexual purpose); see the Act, sch 2, item 12.
[3]Namely, an offence against this Act; see the Act, sch 2, item 30.
[4]The Act, ss 4AA(2)(c)(iv) and 4A(1)–(2).
[5]Re Brown [2019] VSC 751, [65] (Lasry J).
[6]The Act, s 4A(3).
If satisfied that exceptional circumstances exist, the court must then consider the unacceptable risk test.[7] Bail must be refused if the court is satisfied by the respondent that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such a risk is unacceptable.[8] In considering whether a risk is unacceptable, the court must again take into account the surrounding circumstances and consider whether any conditions of bail may mitigate the risk so that it is no longer unacceptable.[9]
[7]Ibid ss 4A(4), 4D(1)(a).
[8]Ibid ss 4D(2)–(3), 4E(1)–(2).
[9]Ibid s 4E(3).
Further, in considering the release of the applicant on bail, the court must make inquiries of the prosecutor as to whether there is in force a family violence intervention order [‘FVIO’], family violence safety notice or recognised domestic violence order made or issued against the applicant.
The applicant’s personal circumstances
The applicant is 29 years old. He usually resides in a unit in Moe with his dog, and proposes to return to this address if granted bail.
He has a five year old son, which he says resulted from an isolated encounter with his best friend. It is not stated whether the applicant is contact with his son or whether he has any role in his care.
The applicant is currently subject to a full no‑contact FVIO (with limited exceptions) protecting his mother, which expires on 2 February 2024. It is suggested that the FVIO is connected to violence allegedly perpetrated against her. Nonetheless, the applicant states that he has a positive relationship with his parents and that they are supportive of him.
Background
The applicant was born premature (at 30 weeks) and as a result experiences various health issues, including abnormalities and weaknesses of the spine, Klippel Feil syndrome (two or more vertebrae in the neck fused together from birth), and issues with cognitive development.
At age three, the applicant was engaged with a specialist intervention service to support his cognitive development and communication skills. At age five, he was diagnosed with attention deficit hyperactivity disorder [‘ADHD’] and oppositional defiant disorder.
The applicant attended school until year 10, following which he has had limited employment in the areas of warehousing, plumbing, plastering, labouring and forklift driving. The applicant receives a disability support pension [‘DSP’]. A DSP medical report dated 2013 has been provided to the court, however it is not stated whether the applicant was still in receipt of the DSP prior to his remand in custody. The applicant’s representative submitted that the applicant has been in receipt of the DSP for between eight and nine years.
At age 19, the applicant began using methylamphetamine. He has used methylamphetamine on an ongoing basis since, and has self‑reported his use in recent years as once per month.[10] He reports having previously entered residential drug rehabilitation on a voluntary basis, resulting in short‑term abstinence.
[10]He also reports historic use of cannabis and ecstasy.
At age 23, the applicant attempted suicide and was admitted to a psychiatric unit.
In August 2021, at age 27, the applicant was the victim of a kidnapping and serious assault in relation to a drug debt. Following this attack, the applicant has suffered in an enduring way, including social isolation, ongoing physical pain from serious injuries sustained during the attack, deterioration of his mental health including post‑traumatic stress disorder [‘PTSD’], increased levels of anxiety and depression, and increased suicidal ideation. The court has been provided with a copy of the sentencing remarks of his Honour Judge Johns in the proceeding against one of the offenders who assaulted the applicant. The remarks provide relevant context illuminating the significant degree of brutality inflicted on the applicant by those that assaulted him.[11]
[11]See DPP v Tuckerman [2022] VCC 879 and DPP v Whittaker [2023] VCC 880. A pseudonym has been used in place of the applicant’s name in both judgments.
The applicant also relies on a psychological assessment by psychologist Sandra Cokorilo dated 6 July 2022. Noting that the report appears to have been written for the purposes of a sentencing hearing faced by the applicant, it nevertheless identifies some important matters concerning the applicant’s mental health. Ms Cokorilo assessed the applicant as meeting the criteria for PTSD; experiencing moderate anxiety levels, moderately severe depression levels, and thoughts of suicide and self‑harm, as well as having a stimulant use disorder. She further stated that, despite the applicant’s significant psychopathology, he has received virtually no therapeutic interventions as an adult, and that this should be prioritised.
Furthermore, it is evident from the available material that the applicant suffers from a cognitive impairment.
Suicide risk in custody
On 7 September 2023, the applicant disclosed that he was having suicidal thoughts and planned to self‑harm and commit suicide should he remain in custody. The Mental Health Advice and Response Service assessed the applicant the same day and recommended that:
(a) should the applicant be granted bail, he follow up with his GP and maintain his medication regime; or
(b) should the applicant remain in custody, he be assessed for suicide and self‑harm risk, undergo a mental health assessment, and be given appropriate medications.
On 17 October 2023, the applicant informed Court Integrated Services Program [‘CISP’] case manager Traci Hammond that he is now in receipt of Olanzapine, and that he does did not have any current suicidal ideations or intent. He stated that his risk of suicide may increase, should he remain in custody.
Criminal history
The applicant has appeared before the courts for sentencing on five prior occasions, beginning in 2016, at age 22.
His criminal history predominantly relates to driving‑related offences, however he also has multiple convictions for bail‑related offences, possessing weapons and possessing methylamphetamine.
The applicant has been sentenced to a CCO on two occasions, in 2018 and on 2 February 2023. He has no prior history of contravening the CCOs.
The applicant has limited prior convictions in relation to violent offending and contravening a court order. On 2 February 2023, the applicant was convicted of contravening an FVIO and threatening to inflict serious injury, which, in combination with other matters, resulted in his first and only sentence of imprisonment. The duration of the sentence was 65 days, which was taken as time served. His second CCO was also imposed on this date.
As noted above, the applicant has no prior history for sexual offending.
The applicant remains subject to the 12‑month CCO made on 2 February 2023. That order contains the following conditions:
(a) be supervised by the Secretary to the Department of Justice and Community Safety;
(b) undergo assessment and treatment for drug abuse or dependency as directed;
(c) undergo mental health assessment and treatment as directed;
(d) undergo behaviour programs as directed;
(e) undergo programs to reduce offending as directed; and
(f) attend judicial monitoring.
Intervention orders in force
The applicant is the respondent to:
(a) two PSIOs protecting the complainants, EH and ES, made in the Latrobe Valley Magistrates’ Court on 8 September 2023. These orders contain full no‑contact conditions and expire on 7 September 2027; and
(b) an FVIO protecting his mother, KM, made in the Latrobe Valley Magistrates’ Court on 2 February 2023. This order contains full no‑contact conditions, with limited exceptions, and expires on 2 February 2024.
The applicant’s contentions
Exceptional circumstances
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Nature and seriousness of the alleged offending and strength of the prosecution case
The applicant accepts that the alleged offending is serious in nature, but submits that it is difficult to assess the strength of the prosecution case whilst only in possession of the remand brief. Nevertheless, the applicant’s counsel submits that:
(a) the prosecution case is based almost entirely on the complainants’ versions of events and otherwise has circumstantial aspects;
(b) the police did not locate drugs, knives or other evidence at the applicant’s house that would support the complainants’ version of events;
(c) the applicant strongly denies the alleged offending; and
(d) CCTV footage, which the applicant alleges will exonerate him, has not yet been obtained.
Criminal history, bail compliance and outstanding matters
The applicant highlights that he has no previous convictions for offending of a sexual nature.
He acknowledges that he has a history of failing to answer bail, namely:
(a) on 7 June 2016, he was convicted of seven charges of failing to answer bail; and
(b) on 16 March 2020, he was convicted of one charge of failing to answer bail.
The applicant acknowledges that he was subject to a CCO and a bail undertaking at the time of the alleged offending. He submits that he was not in contravention of the CCO.
Circumstances of the applicant’s arrest
The applicant accepts that he missed the scheduled interview with police on 3 September 2023. He submits that he contacted his solicitor to re‑schedule the interview immediately after, and that his solicitors reached an agreement with police that he would attend an arrest by appointment on 8 September 2023.
In an email to the applicant’s solicitor on 6 September 2023, Detective Acting Sergeant Christian Mellican stated:
I confirm the arrangement to attend Morwell Police Station at 9:00am on Friday the 8th of September 2023 but reiterate our position explained to your office yesterday – that this will not prevent efforts to locate and arrest Mr Morrison in the interim.
The applicant was arrested on 6 September 2023 after attending an appointment with his Corrections case manager. The applicant states that the prosecution has produced no evidence to support the informant’s claim that the applicant was going to abscond before his meeting with police on 8 September 2023. Although an email from the applicant’s Corrections worker, dated 7 September 2023, advised the police that the applicant was planning to ”go on the run”, the applicant highlights that this was received after the applicant’s arrest and played no role in the decision to apprehend him.
Stable accommodation and family support
The applicant proposes to return to his home at Moe, if bail is granted. It is noted that he maintains a good relationship with his father, who is currently paying the applicant’s rent until he leaves custody. Further, although an FVIO is currently in force prohibiting the applicant from visiting his mother, the applicant’s mother has indicated that she plans to have the order varied so that the applicant is only prevented from visiting her if he is drug or alcohol‑affected. The applicant submits that both of his parents are very concerned about his mental health and wish to support his rehabilitation.
The applicant also has a two‑year‑old dog, Luna, to which he is very attached. It is submitted that, if bail is denied, the applicant will likely lose custody of Luna and that this will affect his mental health significantly.
Special vulnerability
The applicant suffers from complex health issues, many of which stem from his premature birth at 30 weeks. His health issues include:
(a) a cognitive impairment since birth;
(b) Klippel Feil syndrome, abnormalities and weaknesses in his spine;
(c) epilepsy;
(d) developmental delay;
(e) oppositional defiance disorder;
(f) ADHD;
(g) low cognitive and neurological function;
(h) anxiety;
(i) depression; and
(j) PTSD.
The applicant also submits that he is particularly vulnerable given his history as a victim of crime. He points to the serious assault and kidnapping he suffered in 2021 in relation to a drug debt, noting that he has suffered ongoing physical pain and mental trauma as a result. The applicant puts forward that when he was previously in custody, he was the victim of attacks by prisoners after they became aware that he was a prosecution witness. Consequently, during his current period on remand, the applicant has kept to himself to avoid possible confrontations. However, despite this, the applicant reports that he was assaulted at the Metropolitan Remand Centre by another prisoner after that person became aware that the applicant’s charges involved underage female complainants. It is put forward that this resulted in the applicant being placed into isolation for approximately two weeks until he was moved to Ravenhall Correctional Centre.
Availability of treatment or bail support services
The applicant relies upon CISP. Two CISP assessments have been received, dated 7 September and 18 October 2023, both written by CISP case manager Traci Hammond.
In each report, Ms Hammond assesses the applicant as presenting with substance dependence and mental health issues. She notes that the applicant previously engaged with his GP for support with substance dependence, but that he has not attended an appointment within the last six months.
The applicant’s doctor’s office confirmed that he was prescribed an antidepressant, mood stabiliser and antipsychotic at his last appointment in April 2023, however noted these prescriptions would have expired in July 2023 (prior to his remand in custody).
As part of the assessment, Ms Hammond also liaised with the applicant’s Corrections case manager, Amber Mactaggart. She indicated that, prior to the applicant’s remand in custody, his engagement with treatment and support via the CCO was mixed. Namely:
(a) on 28 February 2023, the applicant was requested to attend his GP to complete a mental health treatment plan, with the view of supporting him to access counselling. This request remains outstanding; and
(b) on 27 July 2023, the applicant attended his first appointment for drug and alcohol counselling with his Caraniche clinician. However, he failed to attend subsequent appointments on 3 and 10 August 2023.
For his part, the applicant expressed that he wanted to maintain long‑term abstinence from illicit substances and was willing to re‑engage with his GP, seek a review of his medication, complete a mental health treatment plan, engage with psychological counselling, and seek support for his substance dependence issues.
The CISP assessment dated 7 September 2023 recommended the applicant for community referral. Ms Hammond concluded on that occasion that CISP case management was not required, due to the applicant’s ability to receive treatment and support through re‑engagement with his CCO and his GP.
Since that report, the applicant’s Corrections case manager has provided an update that, due to extensive waitlists for offending programs and treatment services via the CCO, the applicant may not be able to complete these prior to the CCO’s expiry, if he were to be granted bail now. Therefore, Ms Hammond’s updated recommendation is that the applicant engage in a CISP case management episode, alongside his CCO, to assist him in developing linkages for treatment and support. Ms Hammond’s supervisor, Joanne Carte, gave brief evidence to the court on this point. The applicant submits that this is a significant change in circumstances since the Magistrates’ Court denied him bail, and that it tips the balance in favour of a grant of bail.
Should the applicant be granted bail, CISP have arranged the following appointments:
(a) on 23 October 2023 at 9:30am, the applicant is to meet with his CISP case manager, Traci Hammond; and
(b) on 30 October 2023 at 1:50pm, the applicant is to meet with his GP, Dr O’Donoghue.
Complainant’s view on bail
The applicant acknowledges that the complainants are not supportive of bail.
Surety
The applicant’s parents have agreed to put up a surety of $1,000 in the event he is granted bail.
Delay and likely sentence
The applicant submits that he will likely spend a significant period on remand if bail is refused.
It is noted that the informant is seeking a six‑week extension to file and serve the brief of evidence in relation to the applicant’s matters. As a result, the next committal mention listed on 1 December 2023 is expected to be delayed until February 2024.
The applicant also submits that the prosecution has not indicated when evidence — including CCTV footage, visual and audio‑recorded evidence, forensic analysis of samples taken from the applicant’s house, and drug testing results — will be available. The applicant’s counsel therefore contends that, if denied bail, the applicant will spend a significant amount of time in prison before the strength of the prosecution case can be appropriately assessed.
Finally, the applicant submits that, based on listing availability, he is likely to face an 18‑month delay until the matter proceeds to trial.
Unacceptable risk
With regard to any risk of offending whilst on bail, the applicant submits that his previous convictions were driven by drug use, and that any risk of reoffending can be allayed by stringent bail conditions. It is also submitted that the applicant has, overall, complied with his CCO, including attending judicial monitoring hearings in the Magistrates’ Court. Counsel for the applicant contends that these ongoing judicial monitoring hearings and the conditions of the CCO will act as a protective factor against any future offending.
As to the risk that he will abscond on bail, the applicant submits that upon missing the scheduled interview with police on 3 September 2023, he immediately contacted his lawyer to arrange another. As for the respondent’s allegation that the applicant was seeking to flee the area by finding alternative accommodation, the applicant points to evidence that threats had been made against him by a group of males. He submits that he was merely trying to preserve his own safety, and that seeking alternative accommodation for a couple of nights was entirely consistent with his rescheduled appointment at the police station on 8 September 2023.
With regard to risk of endangering the safety and welfare of the complainants, the applicant highlights that he does not know where either of the complainants live, having never met them prior to the night of the alleged offending. He further highlights that PSIOs have now been made with respect to each complainant, prohibiting him from making any contact with them.
Regarding the risk of interfering with witnesses and obstructing the course of justice, the applicant states that he is not alleged to have attempted to contact either of the complainants directly since the alleged offending, and highlights that no evidence has been produced to support the allegation by EH’s parents that he made threats via text to EH’s friends. He further highlights that he has no history of attempting to pervert the course of justice or harassing witnesses.
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of stringent conditions of bail, including:
(a) the applicant must reside at his unit in Moe, Victoria;
(b) the applicant must not leave his place of residence between 10:00pm and 6:00am;
(c) the applicant must present himself to the front door of his address during curfew hours at the request of a member of Victoria Police;
(d) the applicant must not make any attempt to contact the complainants or their families; and
(e) the applicant must abide by the conditions of invention orders P11920874 and P11920863.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of establishing exceptional circumstances, and that he is an unacceptable risk of:
(a) committing an offence while on bail;
(b) interfering with a witness or otherwise obstructing the course of justice in any matter; and
(c) failing to surrender into custody in accordance with his bail conditions.
The respondent submits that the imposition of bail conditions would not alleviate the risk alleged to an acceptable level.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Exceptional circumstances
Strength of the prosecution case
The respondent highlights that sexual offence cases often depend significantly upon the evidence of a complainant, or complainants. It is submitted that the prosecution case is therefore a strong one, as there are two complainants, each of whom have no discernible motive to lie and whose accounts corroborate each other.
Complainant’s views on bail
The respondent submits that EH is fearful of the applicant and did not attend school until he was remanded in custody.
Delay
The respondent concedes that the prosecution will apply for a six‑week extension for service of the brief, due to the complexity of forensically examining the applicant’s electronic devices. However, it is submitted that there is little to no backlog in the courts, and that the case is likely to be prioritised given it involves sexual offences against minors. The respondent contends that the trial is likely to proceed within 12 to 18 months, and that this does not amount to an exceptional period of delay.
Special vulnerability
While the respondent concedes that the applicant has various health conditions, it takes issue with the applicant’s self‑imposed isolation in prison. It is noted that persons accused of sexual assault are often targeted by other prisoners, such that self‑isolation is common and does not constitute an “exceptional circumstance”.
Surety
The respondent submits that a surety of $1,000 is insufficient to ensure the applicant’s compliance with conditions of bail. It is also submitted that the applicant’s parents are not in a position to closely monitor the applicant’s compliance with any such conditions.
Circumstances of the applicant’s arrest
The respondent confirms that on 6 September 2023, an arrangement was made for the applicant to attend an arrest by appointment on 8 September 2023.
The respondent states that, on the same day, 6 September 2023:
(a) EH’s father alleged that the applicant had sent threatening text messages to EH’s school friends, in retaliation for her reporting the offending; and
(b) the applicant’s Corrections case manager informed police that the applicant had suggested he would “go on the run” due to the allegations against him.
The respondent states that on the basis of this information, police decided to arrest the applicant prior to the scheduled arrest by appointment.
Unacceptable risk
The respondent is primarily concerned the applicant will commit offences whilst on bail, particularly offences of a similar nature. The respondent highlights that the applicant has prior convictions for committing indictable offences whilst on bail and contravening a conduct condition of bail, as well as having a prior conviction for contravening an intervention order; namely, contravening an FVIO protecting his mother in 2023. As to the applicant’s submission that the CCO, stable housing and his relationship with his dog will be deter any future offending, the respondent highlights that these factors were in place at the time of the alleged offending and did little to deter the applicant.
As to the risk that the applicant may try to interfere with the complainants, the respondent points to the messages in which the applicant asked his friend for “help” with the complainants. It is submitted that no court order can sufficiently guard against the risk that the applicant will seek to contact the complainants, either directly or indirectly.
The respondent’s secondary concern is that the applicant will fail to appear whilst on bail, due to his prior history of non‑compliance with bail conditions; failure to attend several appointments for his current CCO; and information police received from the applicant’s Corrections case manager, prior to his arrest, that he might abscond.
The respondent highlights the applicant’s prior convictions for failing to answer bail. The respondent further submits that the applicant has previously been subject to 24 warrants.
The respondent further submits that since the applicant commenced his 12‑month CCO on 2 February 2023, he has been absent on 11 occasions and failed to attend drug testing on six occasions.
In addition, the respondent states that initial analyses of the applicant’s phone indicate he has been seeking an alternative place to stay. A series of images were provided to the court, showing the applicant contacting two friends on 5 September 2023.
Finally, the respondent concedes that the applicant has been receiving threatening messages via social media from JL, but notes that the applicant has not yet made a statement regarding this.
Analysis
As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail. He must show that the surrounding circumstances, either individually or in combination, take the case out of the ordinary. If he succeeds in doing so, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated to an acceptable level by the imposition of any bail conditions. Again, the surrounding circumstances must be taken into consideration.
Further, in considering both the exceptional circumstances and unacceptable risk tests, the court must be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
In putting his case forward, the applicant relies on a combination of circumstances justifying a grant of bail, as he is entitled to do.
With all these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
Firstly, as to the nature of the alleged offending, I accept the respondent’s submission that the allegations are objectively serious. The detention of persons for a sexual purpose; the grooming of children (along with possible introduction of drugs); and the sexual assault of minors, are serious crimes. Each carries a maximum penalty of 10 years’ imprisonment, and the applicant has been charged with multiple counts of some of these offences, involving two young persons.
The above accepted, the alleged conduct must be weighed against a broad assessment of the strength of the prosecution cases. While it is not the role of this court to reach final conclusions about the charges faced by the applicant, it is necessary to form some broad views about whether each prosecution case should be regarded as strong or weak. This is somewhat difficult to do in the present circumstances, as the police are yet to finalise and fully disclose the brief of evidence, and accordingly reliance must be placed on police summaries of the allegations. On an analysis of the material presently before the court, the cases against the applicant comprise both direct and circumstantial aspects, but are of course heavily reliant on the versions of events provided by the two complainants. The testimony of the complainants is to be given considerable weight, given that sexual offending of this nature typically occurs in private and in circumstances where it is difficult to source corroborating evidence. In the present case, it should be observed that the testimony of the complainants is likely to support each other.
On the other hand, the applicant has strenuously denied the offending and has presented an alternative explanation as to why he invited the complainants to stay at his address, namely that having experienced homelessness himself, he felt sorry for their plight. I also take into account that the applicant has no prior findings of guilt for sexual offending. It is also of some significance that, on searches being conducted, the police did not locate drugs, knives or clothing at the applicant’s address that supported the complainants’ versions of events.
The prosecution case against the applicant is not so weak as to be foredoomed to fail and appears to be a viable one. At the same time, it is also open to reasonably conclude there are likely to be some triable issues to be explored at the committal and subsequent trial.
Secondly, there is the matter of delay. Although the next committal mention is listed on 1 December 2023, it is of note that the prosecution has not yet disclosed key audio‑visual evidence and forensic samples to the applicant, nor provided an estimate for doing so. There is also the investigation into the allegations that the applicant attempted to intimidate the complainants, which is ongoing and could well result in further delay. The six‑week extension sought by the informant for filing and serving the brief of evidence means the applicant will spend a significant amount of time in custody on remand before the strength of the prosecution case can be assessed in detail.
Thirdly, and of considerable importance in this case, I accept the applicant’s submission that he suffers from a special vulnerability. His health issues are complex and chronic, having persisted from a young age. The seriousness of these multiple conditions is likely to make any time the applicant spends in custody especially burdensome. Moreover, in my opinion, his vulnerability is heightened by the fact that he is alleged to have been the victim of attacks in custody, both during his previous prison sentence and during his present time on remand. These assertions have not been challenged by the respondent. I note that these attacks have resulted in the applicant becoming isolated from others, both under the directions of prison authorities, and also at his own instigation. Again, any time spent in these conditions is likely to weigh very heavily upon the applicant.
Fourthly, having considered the evidence, I am satisfied that, if released on bail, the applicant has sufficient supports in place to ensure he will receive the medical and psychological assistance he requires. He presently has stable accommodation and the steadying influence of his dog, Luna. If he is not released on bail, it is likely he will lose both his accommodation and custody of the dog, both of which are likely to have a negative impact on his mental health. I note he also has the support of his parents, who appear ready to assist him where they can. In forming views about these factors, I do acknowledge that some of these supports were likely to have been available to the applicant at the time of his alleged offending. I have considered this aspect in evaluating the combined effect of all of the relevant factors bearing on this application.
In my opinion, it is particularly significant that CISP have supported this application for bail, and have put in place appointments to assist the applicant to receive psychological help to assist in complying with the terms of his CCO. As noted above, the most recent recommendation is that the applicant engage in a CISP case management episode, alongside his CCO, to assist him in developing linkages for treatment and support. I accept this evidence and note the willingness of CISP to provide assistance to the applicant. In relation to treatment objectives, I also note the evidence provided in the report of Ms Cokorillo that the applicant meets the criteria for PTSD, experiences moderate anxiety levels, moderately severe depression levels, and thoughts of suicide and self‑harm, as well as having a stimulant use disorder.
Having considered all of the material bearing on the question of exceptional circumstances, in the end I am satisfied that a number of supports can be placed around the applicant that strengthen his argument that the exceptional circumstances test has been met.
For the above reasons, I am of the opinion that the applicant has shown that, in combination, the present circumstances are exceptional so as to justify a grant of bail. In forming this view I have taken into account the surrounding circumstances, as I am required to do.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Having formed the view that the exceptional circumstances test has been met; that is not the end of the matter. The court is required to consider whether the respondent has established that the applicant represents an unacceptable risk as defined by the Act. In this regard I am required, again, to have regard to the surrounding circumstances.
With respect to the risk posed by the applicant, I have considered the submissions of the parties and all the relevant factors. In my opinion, the question of unacceptable risk is not easily answered in this case, such that this application is finely balanced. The respondent has raised numerous issues that, in my view, show there exists a risk in granting bail to the applicant. It has been said, on many occasions, that a grant of bail nearly always involves a risk. That said, the question is not whether risk can be eliminated, but rather, whether it can be reduced, or ameliorated, to a level that is acceptable.
As to the prospect that the applicant will attempt to interfere with the complainants, it has been alleged that the applicant has already attempted to do this. Evidence has been put before the court in the form of photographs of messages showing the applicant contacted a friend, telling her he needed her “help” with something. When the friend asked what the issue was, the applicant replied “two 14 year old girls that put a false allegation in about me”. While the tenor of this conversation is concerning, no further messages were provided to the court, so in my opinion it remains unclear as to what, if anything, the applicant asked the friend to do. In this respect, I also note that the respondent has yet to interview the friend and seek that person’s understanding of the conversation.
The father of EH has also alleged that the applicant sent threatening text messages to EH’s school friends, in retaliation for her reporting the offending. The respondent has not interviewed EH or her father about this, nor has any evidence been provided to the court to substantiate the allegation. However, I note that the complainants believe the applicant poses a risk to them, with EH reportedly refusing to attend school until the applicant was remanded in custody.
I therefore accept that the prosecution and complainants hold reasonable concerns that the applicant will contact the complainants if released on bail. As observed, a grant of bail almost inevitably involves a degree of risk, and the matter for consideration is whether risk can be ameliorated to a level that becomes acceptable in all the circumstances by the imposition of conditions. In my view, the risk in the case of this applicant can be reduced to an acceptable level. First, the evidence presently before the court does not show the applicant has taken meaningful steps towards interfering with the complainants, beyond asking his friend for “help”. Second, two PSIOs currently remain in force, prohibiting the applicant from directly contacting the complainants. There is no indication the applicant has breached these orders. Given his compliance with these orders, I consider that imposing stringent conditions of bail prohibiting the applicant from interfering (or causing others to interfere) with the complainants will be sufficient to reduce the risk to an acceptable level. The applicant will no doubt be aware that breaching this condition will likely result in a swift application to revoke any grant of bail.
I am also of the opinion that the imposition of such conditions, including a curfew, will sufficiently lower the risk that the applicant will reoffend while on bail. Further, I consider that the support of CISP and the stable accommodation available to the applicant will act as protective factors. A combination of assistance from CISP, and the added support of his CCO, should add to the lowering of risk.
As to the risk the applicant will fail to appear while on bail, I accept the respondent’s submission that the applicant has a poor history of compliance with bail conditions, and his CCO. I have been concerned that the applicant missed his scheduled interview with police on 3 September 2023. Nevertheless, there is also evidence in the applicant’s favour. Having missed the interview on 3 September 2023, the applicant arranged a follow‑up interview with the police through his solicitor. Further, he was located and arrested by police because he attended a scheduled appointment with his Corrections case manager. His attendance at this appointment, given the circumstances, suggests that there are reasonable prospects he will comply with future court‑mandated orders and appointments.
In respect of the applicant’s attempts to arrange alternative accommodation, I accept the explanation proffered by his counsel. The evidence before the court shows that the applicant was receiving threats via social media around that time. Further, the messages provided by the respondent indicate that the applicant was seeking alternative accommodation for a night or two as of 5 September 2023, which is consistent with his planned attendance at the Morwell Police Station on 8 September 2023.
Thus, taking into account all of the matters and the circumstances, I am not satisfied that the respondent has established that the applicant poses an unacceptable risk, providing he complies with stringent bail conditions.
Conclusion
Accordingly, bail will be granted in the following terms, namely that the applicant:
(a) attend the Latrobe Valley Magistrates’ Court on 9 November 2023 and then surrender himself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody;
(b) reside at his unit in Moe, Victoria;
(c) remain at those premises between the hours of 10:00pm 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) not contact any witnesses for the prosecution, directly or indirectly, including the complainants, or members of the complainants’ families, with the exception of the informant;
(f) abide by the conditions of intervention orders P11920874 and P11920863;
(g) comply with the conditions of the Community Corrections Order made on 2 February 2023;
(h) comply with all lawful directions of the Court Integrated Services Program;
(i) report every Monday, Wednesday and Friday, or the nearest day thereafter if it falls on a public holiday, to the Officer in Charge of the Police Station at Moe, or his or her nominee, between the hours of 6:00am to 10:00pm;
(j) not leave the State of Victoria;
(k) not attend any points of international departure; and
(l) reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:15am on 10 November 2023, and any other further dates that the court appoints during the course of this order.
---
0
3
0