Re Mullin
[2024] VSC 407
•12 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0155
| IN THE MATTTER of the Bail Act 1977 - and - IN THE MATTER of an Application for bail by LACHLAN MULLIN |
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 July 2024 |
DATE OF RULING: | 12 July 2024 |
CASE MAY BE CITED AS: | Re Mullin |
MEDIUM NEUTRAL CITATION: | [2024] VSC 407 |
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CRIMINAL LAW – Bail application – Applicant charged with Schedule 2 offence while subject to a community correction order for Schedule 2 offences – Whether exceptional circumstances established – Whether unacceptable risk of endangering the safety and welfare of others.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr V Farrugia | RA Criminal Lawyers |
| For the Respondent | Mr N Moran | Legal Practice Group, Victoria Police |
HIS HONOUR:
The applicant is subject to four separate sets of charges brought against him between 17 March 2024 and 29 April 2024. He was remanded in custody following his arrest on 1 May. On 7 June, he made an unsuccessful application for bail to the Moorabbin Magistrates’ Court. He now applies to this Court for bail.
Summary of alleged offending
Detective Senior Constable Black Charges
On 15 March 2024, the applicant was charged, by Detective Senior Constable Black of the Frankston Criminal Investigation Unit (‘CIU’), with one charge of theft of a 2021 Mazda motor vehicle, one charge of handle and receive stolen goods, and one charge of driving a motor vehicle while his authorisation to do so was suspended.
Between 1 am on 14 March 2024 and 8 am on 15 March 2024, the Mazda motor vehicle was stolen from the underground carpark of premises in South Yarra. The vehicle had been locked with a lockbox attached to it, which contained the keys to the vehicle inside it. The offender removed the lockbox, and used the keys to gain access to the vehicle and to drive it from the underground car park.
At 9.20 am on 15 March, the vehicle was located outside premises in Taldra Crescent, Seaford. CCTV footage obtained from the premises depicted the applicant exiting the driver’s seat and his co-accused (Isabella Hosi) exiting the passenger seat. The applicant was located inside the premises wearing the same clothing he was observed to be wearing in the CCTV footage. At the time of the offending, the applicant’s licence to drive a motor vehicle had been disqualified for a period of 12 months by the Dandenong Magistrates’ Court by order dated 29 November 2023.
After his arrest the applicant was granted bail to appear next at Frankston Magistrates’ Court on 8 May 2024. Subsequently, his bail on those charges was extended to 22 July next.
Detective Senior Constable Hughes Charge
On 19 April 2024, the applicant was arrested and charged by Detective Senior Constable Hughes of the Moorabbin CIU on one charge of theft of a 2017 Volkswagen Transporter van at Dingley Village. After his arrest, he was released on bail.
It is alleged that at 1.27 am on 7 April 2024 the applicant stole the van which was parked outside the owner’s business premises in Dingley Village. The vehicle contained two tracking devices, one of which was disconnected. The other tracking device enabled the vehicle to be located at premises in Ryans Road, Coongulla, which was the address of the applicant’s father. On 9 April 2024, police attended the address and observed the stolen van in the backyard. They also observed the applicant in the backyard with three other males. At about 6.30 pm the applicant left the address with the males in another stolen vehicle, a black Holden Commodore. Subsequently, police recovered the stolen van and located inside it tools which had been stolen in the course of the offending that is the subject of charges laid by Senior Constable Baker.
Senior Constable Baker Charges
On 23 April 2024, the applicant was arrested and charged by Senior Constable Baker of the Knox police station with four charges of burglary, five charges of theft, two charges of intentionally damaging property, and one charge of attempting to obtain property by deception. Those offences are alleged to have been committed by the applicant in the following circumstances between 28 March 2024 and 11 April 2024.
On 28 March 2024, a burglary was reported at the business of Sheen Panels in Glen Waverley. It is alleged that the applicant and his co-offender gained entry to the premises by using a hammer and a crowbar. They then forced open the door of a safe, but no cash was located inside it. An automotive diagnostics tool, valued at $12,000, was stolen in the course of the burglary.
On 8 April 2024, between 12 pm and 6 am, offenders broke into the premises of Modern Skylights in Northey Road, Lynbrook. Welding equipment, Makita power tools and an Ampol fuel card in the name of Modern Skylights were stolen in the course of the burglary. On the following day, 9 April, police executed a warrant at the address of the applicant’s father, Craig Mullin, in Ryans Road, Coongulla. There they located the stolen grey Volkswagen Transporter van, which contained tools and welding equipment that had been stolen in the course of the burglary at Modern Skylights.
On the next day, 10 April 2024, at 1.30 am, a burglary was reported at the business of Warragul’s Cheapest Cars in Warragul. A chequebook, in the name of Warragul’s Cheapest Cars, was stolen from the premises. At 5.45 pm, the applicant entered the National Australia Bank in Dandenong, and attempted to deposit into his own account a cheque written out for $1,000 on the account of Warrigal’s Cheapest Cars.
On the same day, in the early hours of the morning, a burglary occurred at the premises of Tint a Car in Warragul, in the course of which were stolen two rolls of car tint, a Makita drill, a heat gun and impact driver, as well as a Dewalt tool bag containing specialist tinting tools to a value of $12,000.
On 11 April 2024, the applicant and his co-accused were arrested in Frankston while in a black Holden Commodore bearing false registration numbers. The vehicle had been stolen on 16 March 2023. Inside the vehicle was located (inter alia) a chequebook in the name of Warragul’s Cheapest Cars, and Makita power tools and the fuel card in the name of Modern Skylights.
The charges in respect of the above offences were issued on 25 April 2024. The applicant was arrested by members of Moorabbin police on 1 May 2024 on those and other charges and remanded in custody.
Detective Senior Constable Heyne Charges
On the same day, 1 May 2024, the applicant was also charged, by Detective Senior Constable Heyne of the Moorabbin CIU, with two charges of burglary, five charges of theft, two charges of damaging property, and one charge each of driving a motor vehicle while disqualified, careless driving and dealing with property suspected to be the proceeds of crime. Those offences are alleged to have been committed by the applicant in the following circumstances on 29 April and 30 April.
It is alleged that at approximately 3.10 am on Monday 29 April 2024, the applicant, and two other unknown offenders, attended premises at Bond Street, Mordialloc. They forced entry into a vehicle lock box and stole a set of motor vehicle keys belonging to a Holden Commodore that was parked nearby. That vehicle was then stolen by the applicant and his co-offenders.
About one hour later, at 4.11 am, it is alleged that the applicant and two other unknown persons attended, in the stolen Holden Commodore, outside the premises of Sheen Panel Service in Warrigal Road, Cheltenham. The applicant and one of the unknown persons were then captured on CCTV breaking into the premises with a large crowbar. They were also captured on CCTV rummaging through the premises. They departed from the premises taking with them from the reception office various invoices with client personal details.
At 5.30 am on the same morning, the stolen Holden Commodore was captured on CCTV footage arriving at the premises of Rapid Tune in Warrigal Road, Moorabbin. The applicant and one other offender were depicted forcing entry into those premises. Shortly after their entry, two vehicles, that were parked inside the workshop, were reversed through a closed roller door, causing significant damage. The three stolen vehicles were then driven away in a northerly direction on Warrigal Road. One of the stolen vehicles was a white Mondeo, and the second was a silver Subaru Impreza. Documents in the office were also stolen.
At approximately 5.50 am, the three stolen motor vehicles then attended at the premises at SLR Plumbing in Walter Street, Moorabbin. It is alleged that the applicant and the other unknown offenders used a battery powered angle grinder on a key lock box at the front of the premises. The applicant also used a jemmy bar to open the letterbox before leaving the area. Nothing was stolen from the lockbox or the letterbox as both were empty.
At approximately 10.50 am on the same morning, the applicant attended the EG Ampol service station on the South Gippsland Highway, Cranbourne in the stolen Holden Commodore vehicle. He filled the vehicle with $84.57 worth of fuel and drove off without making any attempt to pay.
On Tuesday 30 April 2024, the applicant is alleged to have then driven the stolen Holden Commodore erratically into Moran Court, Narre Warren. The street was filled with road workers at the time. The applicant reversed into a driveway and collided with a brick fence, causing significant damage to the fence and the vehicle. The applicant then left the vehicle on foot. Police who attended the scene located an invoice in the vehicle in the name of the applicant and a camouflage cap which is alleged to belong to him. They also located various stolen power tools.
The applicant was arrested on 1 May 2024 at his home address in Carrum Downs. He was transported to Moorabbin police station, where he was interviewed in relation to those matters, and remanded in custody.
The charges, in which Detective Senior Constable Heyne, Detective Senior Constable Hughes and Senior Constable Baker are respectively the informants, are each listed for contest mention at Frankston Magistrates’ Court on 22 July next. The charges, in which Detective Senior Constable Black is the informant, are listed for mention at that court on the same date.
In addition, on 23 April 2024 Senior Constable Baker also charged the applicant with one charge of theft of a motor vehicle, and two charges of possession of a drug of dependence. Those charges are next listed for a contest mention at Moorabbin Magistrates’ Court at 2.30pm today.
Outstanding summary charges
In addition to the foregoing matters, the applicant is also the subject of three sets of summary charges.
On 11 January 2024, Acting Sergeant Rampal of the Carrum Downs police station charged the applicant with one charge of aggravated burglary at residential premises in Sutton Crescent, Carrum Downs, and one charge of theft from those premises, which were alleged to have been committed on 17 March 2023.
On 10 May 2024, Senior Constable Lyall of the Mordialloc police, charged the applicant with one charge of intentionally and without lawful excuse damaging property, namely, a CCTV camera belonging to his father’s next door neighbour. That offence is alleged to have been committed on 14 February 2024.
On 20 May 2024, the applicant was charged by Leading Senior Constable Smith with seven road traffic offences that were alleged to have been committed on 21 April 2024. They included one charge each of driving a motor vehicle whilst his authorisation to do so was suspended, driving an unregistered motor vehicle, failing to stop at a red light, and driving a motor vehicle while the prescribed concentration of drug, methylamphetamine, was present in his blood.
The three sets of summary charges are each listed for mention at Frankston Magistrates’ Court on 22 July next.
Applicant’s previous convictions
The applicant has a quite extensive criminal history that commenced in 2022.
On 1 June 2022, the applicant was before the Dandenong Magistrates’ Court on a number of charges that included theft of a motor vehicle, dangerous driving while pursued by police, reckless conduct endangering serious injury, and failing to stop a vehicle on police direction. His licence was cancelled and he was disqualified from holding a motor vehicle licence for a period of two years.
On 8 June 2022, the applicant was again before the Dandenong Magistrates’ Court on two charges of dangerous driving while pursued by police (contrary to s 319AA(1) of the Crimes Act 1958) and other charges including contravening a conduct condition of bail, committing an indictable offence on bail, retention of stolen goods, unlicensed driving, and other driving charges. Without conviction he was placed on a community correction order for 12 months on a number of conditions that included that he undergo assessment and treatment for drug abuse and dependency.
On 3 February 2023, the Ringwood Magistrates’ Court cancelled the applicant’s motor vehicle licence, and disqualified him for 12 months, on one charge of failing to stop his vehicle on police direction.
On 29 November 2023, the applicant was before the Dandenong Magistrates’ Court on a charge of contravention of the community correction order dated 8 June 2022, as well as multiple charges that included: theft from a shop (11 charges); committing an indictable offence while on bail (20 charges); burglary (10 charges); intentionally damaging property (11 charges); obtaining property by deception (5 charges); attempting to commit an indictable offence while on bail (6 charges); criminal damage (4 charges); dishonestly receiving stolen goods (2 charges); and negligently dealing with the proceeds of crime. He was sentenced to a term of imprisonment of 255 days which was equivalent to time already served, and placed on a further community correction order for 15 months, which contained conditions that he undergo assessment and treatment for drug abuse or dependency and that he undergo mental health assessment and treatment as directed.
Applicant’s personal circumstances
The applicant was born in August 1997, and is almost 27 years of age. He has an older brother. His parents separated before he was born.
The applicant was educated to Year 10 level, and he then commenced working in some different trades, but predominantly in landscaping. In his early teenage years, he commenced a 10-year relationship with his partner, Shannon, by whom he has a three year old son. Until about late 2021, the applicant was a law-abiding citizen, engaged in regular employment. He was also a keen, and apparently talented, Australian Rules footballer.
During his teenage years, the applicant began to use amphetamine (‘speed’), and in time he progressed to using methylamphetamine.
In 2021, the applicant suffered a fractured foot while playing football. At about that same time, his relationship with Shannon became troubled, and they separated. He was then largely confined to home, and in that situation his abuse of crystal methylamphetamine escalated. It was those circumstances that resulted into his descent into a life of offending which has brought him before the courts, on multiple occasions, in the last two years.
Since his arrest on 1 May, the applicant has been detained in custody in the Metropolitan Remand Centre.
Windana Therapeutic Community
If the applicant is released on bail, it is proposed that he will attend the Windana Therapeutic Community residential drug and alcohol rehabilitation program at Maryknoll, after he has first attended the Windana detox unit in St Kilda. On the application for bail, the applicant tendered a memorandum from Windana noting that the applicant has been approved for admission both into the detox unit and subsequently into the drug and alcohol rehabilitation program at Maryknoll.
The therapeutic centre at Maryknoll consists of a 77-bed residential facility on a 40-acre property. The program for residents at the property addresses the biological, psychological and social factors that lead to substance dependence. It is located in a semi-rural area. A rollcall is conducted at breakfast, at various times during the day, and at the final meeting which is followed by bed checks.
The Windana program is conducted for a period of between 10 and 16 months in four phases. It is preceded by a short term of residence in the Welcome House conducted by Windana, the purpose of which is to achieve stabilisation and preparedness, comprehensive assessment and education. The first principal phase of the program is designed to ground residents in the program with a focus on education. The second phase involves the residents taking on more responsibility and addressing the relational aspects of recovery. The third phase requires residents to assume senior roles and responsibility in the therapeutic centre and to begin to reintegrate into the wider community. The final phase is delivered off-site for a recommended minimum period of six months. That phase commences in a Windana property in Pakenham where residents live in a share house with their peers. The program remains highly structured and supervised by Windana staff and involves residents returning to the Maryknoll property multiple times each week. After a resident has spent time at Pakenham, the resident may move to the Windana property in Mentone in order to gain further independence, and to be able to engage in gainful employment.
At present, it is proposed that if the applicant is released on bail, he will initially be admitted to the detox centre. His admission to the therapeutic community at Maryknoll will take place one week later.
Mr Mark O’Brien, the General Manager, Operations, at Windana gave evidence on the bail application. He explained that at all times Windana has at least two staff members on site. The two staff members who are permanently resident do sleep during the night, but, in Mr O’Brien’s experience, no resident has absconded from the premises either at night or during the day. In that respect, Mr O’Brien explained that the Windana centre at Maryknoll is 1.5 km down a lane from the freeway, and from there it is a further 10 km to Pakenham. Residents are accounted for at breakfast each day. Each night, at 8 pm, a facilitator meets with the residents in order to discuss with them their progress during the day. Mr O’Brien confirmed that smoking, consumption of alcohol and consumption of drugs is totally prohibited at the site. Random tests are regularly conducted. In addition, the participants’ mobile telephones and communication devices are taken from them and locked away, and participants ordinarily do not have access to telephones for the first few weeks of the program.
Mr O’Brien confirmed that if the applicant were released on bail, and if he failed to comply with the conditions of his bail, the manager of the site would contact the informant without delay.
Other evidence
The applicant’s father, Mr Craig Mullin, deposed an affidavit in support of the application, and gave evidence on the hearing of it. Mr Mullin described himself as an entrepreneur of restaurants and resorts in the Philippines and in Patterson Lakes, Victoria. Accordingly, until recently he has spent a reasonably substantial part of his time in the Philippines.
Mr Mullin said that the applicant had been a good child, who was very keen on sport. After Mr Mullin separated from the applicant’s mother, he remained in touch with the applicant. He explained that the applicant, after leaving school, had engaged in regular employment, and that he had also continued his involvement in playing Australian Rules Football. When the applicant suffered the fracture to his foot, he was required to undergo surgery, and he spent a number of months recuperating from the injury. As a result, he became unemployed. The applicant’s situation was exacerbated by the onset of the COVID-19 pandemic which further isolated him.
During that period, Mr Mullin was primarily located in the Philippines and as a consequence he was not aware that the applicant had started using crystal methylamphetamine. Since the applicant’s arrest, Mr Mullin has endeavoured to give him support. In particular, Mr Mullin has been active in locating a suitable therapeutic centre to address the applicant’s drug addiction. In addition, Mr Mullin has leased his business in the Philippines, in order that he may be available to provide appropriate assistance to the applicant. For that purpose, he has established a new restaurant in Patterson Lakes, at which it is intended that the applicant would be employed. Mr Mullin also stated that if the applicant were released on bail, he would be prepared to provide a surety in the sum of $2,000.
Bail provisions
The charges against the applicant include indictable offences specified in Schedule 2 of the Bail Act 1977, namely, burglaries in the course of which an offensive weapon was used. Those offences are alleged to have been committed while the applicant was subject to a community correction order for a Schedule 2 offence (namely, two charges of dangerous driving while pursued by police pursuant to s 319AA of the Crimes Act). Accordingly, s 4AA(2)(c) and s 4A(1A) of the Bail Act provide that the application for bail must be refused, unless the applicant establishes the existence of exceptional circumstances that would justify his release on bail.
In determining whether exceptional circumstances have been established, I am required to take into account all relevant circumstances, including, but not limited to, those specified by s 3AAA(1) of the Act.
The meaning of the phrase ‘exceptional circumstances’ has been considered in a number of previous decisions of this Court. In order to satisfy that requirement, the applicant must demonstrate the existence of circumstances which are such as to take the case out of the ordinary. That is, the circumstances of the applicant’s case must be exceptional to the ordinary circumstances, which would otherwise entitle an applicant to bail. It is accepted that such exceptional circumstances may be sufficiently established by a combination of circumstances, which, individually, might not of themselves be sufficient to be considered exceptional.[1]
[1]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18] (Tinney J); Re Pope [2022] VSC 735, [6] (Priest JA).
One matter, that is considered to be important in determining whether exceptional circumstances have been established, is the presence or absence of factors which may point to the applicant being an unacceptable risk in any of the respects specified by s 4A(1) of the Act.[2]
[2]Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
If the applicant establishes the requisite exceptional circumstances, s 4D and s 4E of the Act provide that the application for bail must be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released, would (inter alia) endanger the safety or welfare of any person. The respondent bears the burden of demonstrating the existence of such an unacceptable risk.[3] Section 4D(3) of the Act provides that in considering whether any such risk is unacceptable, the court must take into account the ‘surrounding circumstances’ which are specified in s 3AAA of the Act.
[3]Bail Act 1977, s 4D(2).
Submissions
Mr V Farrugia, who appeared on behalf of the applicant, relied on a combination of circumstances to contend that the applicant has established the requisite exceptional circumstances justifying his release on bail.
In submitting that those circumstances are exceptional, Mr Farrugia noted that the applicant had no previous criminal history before June 2022, when he was almost 25 years of age. The applicant’s descent into criminal offending had resulted from two unfortunate circumstances, namely, the injury that he sustained while playing football, and the loss of his long term relationship, with the consequent effect on his capacity to be a father to his three year old son.
Mr Farrugia noted that since his arrest on 1 May, the applicant has been in custody for ten weeks, during which time his urine screen tests have been consistently negative. If he is released on bail, he would attend Windana Therapeutic Centre and engage in its 10 to 16 month program. For that purpose the applicant’s father, Craig Mullin, has returned to Australia from overseas and he has played an active role in arranging residential rehabilitation treatment for the applicant at Windana. By agreeing to undertake that treatment, the applicant has demonstrated a degree of insight into the severity of his problem with addiction to methamphetamine.
Mr Farrugia submitted that if the applicant is not granted bail, it is unclear how long he will remain on remand until the finalisation of the various matters which are before the Courts. It is possible that in those circumstances he will remain in custody on remand for a period that would exceed the term of any sentence of imprisonment that might be imposed upon him. That prospect is of some significance in view of the fact that the applicant has been previously assessed with attention deficit hyperactivity disorder (‘ADHD’), which would render a term of custody more onerous for him.
In summary, Mr Farrugia submitted that the requisite exceptional circumstances have been established in the present case consisting of a combination of the following:
(1)The applicant has a place available to him at Windana for long term residential supervision and treatment of his drug addiction.
(2)The applicant has strong family support from his father.
(3)When the applicant reaches the final phase of the treatment program at Windana, he will have available employment in his father’s business in Pakenham.
(4)The applicant’s father is prepared to provide a surety in the sum of $2,000.
(5)If the applicant is granted bail he would be able to have access to his three year old son.
Mr Farrugia further submitted that if the applicant were admitted to bail on condition that he immediately entered the Windana Therapeutic community, such a disposition would sufficiently address the concern that, if released on bail, he might engage in offending that might endanger the safety or welfare of other persons.
In response, Mr N Moran, who appeared for the respondent, submitted that the applicant has not established the requisite exceptional circumstances justifying his release on bail. In particular, he submitted, the circumstances relied on by the applicant, such as having a family commitment, and the availability of entry to a drug treatment program at Windana, are not sufficient to constitute exceptional circumstances justifying a grant of bail. In that respect, Mr Moran noted that rehabilitation programs, such as Windana, have been available to the applicant before his arrest, but the applicant had declined to engage with them. The fact that the applicant has family support, and accommodation available to him, if released on bail, are not circumstances which are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail.
Mr Moran further submitted that if the applicant does establish that exceptional circumstances exist, it should be concluded that if the applicant were granted bail, there would be an unacceptable risk that he might endanger the safety or welfare of others pursuant to s 4E(1)(a)(i) of the Bail Act.
In that respect, Mr Moran submitted, by reference to s 3AAA(1) of the Act, that although the charges against the applicant may all be dealt with summarily, nevertheless the nature of the offending engaged in by the applicant demonstrates a concerning escalation in the frequency of his offending, as well as a disregard by him for the safety and wellbeing of other road users.
Mr Moran noted that although the applicant is only 26 years of age, in the last two years he has amassed a significant number of criminal convictions. He has demonstrated a disregard for the safety of other road users, he has failed to comply with previous grants of bail, and he has repeatedly offended while on bail. At the time of the offending, the applicant was unemployed, and he had a daily drug habit which was largely supported by his prolific criminal offending. In that respect, the frequency with which the applicant engaged in stealing and driving motor vehicles while suspended is a matter of particular concern. In addition, while doing so, the applicant has twice been involved in motor vehicle collisions while under the influence of methylamphetamine. Further, he has on more than one occasion demonstrated a disregard for the authority of Police by engaging in dangerous driving in an attempt to avoid an infringement.
For those reasons it was submitted by Mr Moran that if the applicant were to be released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of other persons, and in particular, other road users.
Analysis and conclusion
The first question is whether the applicant has established the requisite exceptional circumstances that would justify his release on bail.
That question is by no means straightforward. However, on analysis, I am satisfied that there are four specific factors in the present case which, in combination, constitute exceptional circumstances.
The principal such factor is the availability of therapeutic treatment for the applicant at Windana. In his evidence, Mr O’Brien confirmed that the applicant has been assessed and approved to attend the Windana program in Maryknoll. It is of particular relevance, in the present case, that Windana provides a structured onsite residential program. If the applicant is granted bail, he will reside at Windana for at least 10 months. During that time, he will be regularly tested to ensure that he is not using drugs. He will not have access to the telephone. While the site is not as secure as a prison, nevertheless, as Mr O’Brien explained, the location is such that residents rarely if ever abscond. Importantly, the Windana program is focussed on addressing the applicant’s drug addiction, which was the motivating cause of his spate of offending over the last two years. Windana has an established and structured program, which provides for a concentrated daily routine for the residents.
The second relevant factor is that the applicant does have available committed family support, principally, it would seem, by his father. Mr Mullin has returned from the Philippines, with his wife and two children, in order to provide the applicant with that support. It is of particular relevance that if the applicant completes the Windana program, he will have available to him gainful employment in the community.
It is apparent that, at this point, a number of the charges against the applicant are contested. As discussed in the course of submissions, it is not possible, at this stage, to make any meaningful assessment of the strength of the prosecution case on those charges, other than that it does appear that the prosecution has a reasonable body of evidence that supports its case on a substantial number of them.
The potential delay in disposing of the charges against the applicant, and the nature of the sentence which might ultimately be imposed on him, are difficult to determine at this point. The applicant is facing a number of different sets of charges. If they are not resolved at a reasonably early stage, there might well be a substantial delay in the final disposition of them. In those circumstances, if the applicant were not granted bail, there is at least a reasonable possibility that the period of time that he would spend on remand might exceed the length of any term of imprisonment ultimately imposed on him.
It is also relevant that the applicant did not have any previous convictions until he was almost 25 years of age. Until that time, he was in regular employment, and he played active sport. Certainly, the applicant, over the past two years, has been involved in a significant spate of criminal offending. However, he has demonstrated, in the past, a capacity to live a productive and law-abiding existence.
Taken individually, the matters which I have discussed would not, on their own, constitute the requisite exceptional circumstances justifying the grant of bail to the applicant in the present case. However, taken together, the availability of the residential program at Windana, the support of the applicant’s father, the availability to him of employment after he has completed the program at Windana, the potential delay in the disposition of the charges, and the fact that the applicant had, until his recent bout of offending, lived a law-abiding life, are, in combination, sufficient to constitute exceptional circumstances that would justify the grant of bail to the applicant on strict conditions, including, in particular, that he attend and undergo the onsite Windana residential rehabilitation program.
The question which then arises is whether the respondent has demonstrated that if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of other persons. In that regard, the most relevant risk is that the applicant would endanger the safety of the public by driving a motor vehicle while affected by the consumption of methylamphetamine.
In that respect, the applicant is charged with the theft of a number of motor vehicles. He has been involved in two motor vehicle accidents. The first accident was on 21 April, which is the subject of the charge by Leading Senior Constable Smith. The second accident was on 30 April, which occurred in circumstances in which the applicant endangered a number of road workers and other persons who were present at the time. In addition, it is significant that the applicant has previous convictions for dangerous driving while pursued by police.
The applicant also has a number of previous convictions for breach of bail conditions, and in addition he breached the community correction order, dated 8 June 2022, by engaging in an extraordinary spate of criminal offending.
In those circumstances, in the absence of the availability of the Windana program, it may be concluded that if the applicant were released on bail, there would be an unacceptable risk of him endangering the safety and welfare of members of the community.
However, as I have discussed, the Windana program, which is available to the applicant, will involve him attending an onsite supervised residential facility, fulltime, for a period of at least 10 months, during which time he will undergo treatment and programs that are directed to addressing his addiction to methylamphetamine. If bail were granted to the applicant, it would be on the condition that he attend, and remain a resident of, the Windana Therapeutic Community as directed by the management of that institution, and that he comply with the conditions prescribed by it. As Mr O’Brien explained in his evidence, if the applicant were to abscond from the Windana centre, or to otherwise fail to comply with the conditions of his residence there, the management of the Windana centre at Maryknoll would immediately contact the informant.
As I have discussed, in considering the question of exceptional circumstances, the program that is available to the applicant at Windana is buttressed by the support which his father is now giving to him. The fact that the applicant would, on completing the Windana program, have employment available to him under the guidance of his father, would enhance the prospects of success of the program in addressing the applicant’s addiction to methylamphetamine and his offending.
It must be acknowledged that, notwithstanding the availability of the Windana program, and the support of his father, there is nevertheless a risk that, if the applicant were released on bail, he might relapse into further offending. However, taking into account the matters that I have discussed, I am not satisfied that that risk is of such a moment as to be characterised as unacceptable.
Accordingly, I have concluded that the applicant should be granted bail, on appropriate conditions, including:
(1) Upon release from custody, the applicant, after attending Moorabbin Magistrates’ Court, must immediately attend Windana Therapeutic Community located at 254 Snell Road, Maryknoll;
(2) The applicant reside at the premises of Windana Residential Therapeutic Community at 254 Snell Road, Maryknoll or at such other premises as directed by the management of Windana;
(3) The applicant comply with all lawful directions of Windana staff;
(4) The applicant not possess or use any drug of dependence within the meaning of the Drugs Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under the Act;
(5) The applicant not use or drive any motor vehicle;
(6) The applicant not leave the state of Victoria;
(7) The applicant is not to attend any points of international departure;
(8) The applicant attend Frankston Magistrates’ Court on 22 July 2024 at 9.30am and then surrender himself, and 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.
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