Re Nasic
[2024] VSC 324
•1 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0318
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an Application for Bail by MARCO NASIC
BETWEEN:
| MARCO NASIC | Applicant |
| - and - | |
| VICTORIA POLICE | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 January 2024 |
DATE OF JUDGMENT: | 1 February 2024 |
DATE OF REASONS: | 17 June 2024 |
CASE MAY BE CITED AS: | Re Nasic |
MEDIUM NEUTRAL CITATION: | [2024] VSC 324 |
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CRIMINAL LAW — Application for bail — Charges of contravening personal safety intervention orders, drug possession, assaulting an emergency worker and dealing with proceeds of crime — Delay — Special vulnerability — Support of CISP and other organisations — Exceptional circumstances satisfied — Risk of committing further offences while on bail — Risk of failing to answer bail — Risk can be managed by strict conditions — Unacceptable risk not established — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | J Desmond | Angus Cameron Lawyers |
| For the Respondent | P Collins | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail by Marco Nasic [‘the applicant’]. He is 42 years old and has a lengthy criminal history.
He seeks bail with respect to 22 charges arising out of the following matters:
Matter Dates Charges Informant Black Alleged offending on 30 March 2021 Contravene personal safety intervention order Informant Singh Alleged offending on 7 June 2023 Traffick a drug of dependence
Possess a drug of dependence (x4)
Commit an indictable offence whilst on bail
Informant Di Napoli Alleged offending on 8 June 2023 Assault emergency worker on duty (x4)
Resist emergency worker on duty (x4)
Informant Watson Alleged offending on 15 June 2023 Contravene personal safety intervention order Informant Lopez Alleged offending on 30 August 2023 Deal with property suspected of being proceeds of crime
Possess a drug of dependence (x5)
The applicant is also the subject of one outstanding matter, for which he has received a summons:
Matter Dates Charges Informant Rainey Alleged offending on 16 June 2023 Contravene personal safety intervention order Procedural history
The applicant was initially subject to summons in the Informant Black and Informant Watson matters. However, on 1 March 2023, the applicant failed to appear on summons, and warrants were issued for his arrest. On 5 March 2023, he was arrested and granted police bail for both matters.
On 8 June 2023, the applicant was arrested in relation to the Informant Singh matter. He made a self‑represented application for bail in the Broadmeadows Magistrates’ Court the same day, which was refused on the basis that he failed to show a compelling reason, and on the grounds that he was an unacceptable risk of committing an offence while on bail and constituted an unacceptable risk to the safety or welfare of any person. Following the refusal of bail, the applicant allegedly resisted and assaulted police custody officers (Informant Di Napoli matter). The applications to revoke bail in the Informant Black and Informant Watson matters were adjourned.
On 15 June 2023, the applicant was granted bail in the Informant Singh and Informant Di Napoli matters at the Broadmeadows Magistrates’ Court. The applications to revoke bail in the Informant Watson and Informant Black matters were refused on the same date.
On 23 August 2023, the applicant was arrested in relation to an unrelated matter. He appeared in the Broadmeadows Magistrates’ Court the same day, at which time the prosecution successfully applied to revoke bail in the Informant Singh matter. However, due to an administrative error, and the decision to revoke bail not being reflected in the court order that was made by the Magistrates’ Court at the time, the applicant was mistakenly released from custody. The following day, the order was amended to reflect the Court’s intention that bail be revoked; and a warrant to arrest the applicant in relation to the Informant Singh matter was issued.
On 30 August 2023, the Broadmeadows Magistrates’ Court issued further warrants to arrest the applicant in relation to the Informant Watson, Informant Black, and Informant Di Napoli matters.
On 31 August 2023, the applicant was arrested following the alleged offending in the Informant Lopez matter. It appears that on this date, the applicant was remanded in custody on all matters. No bail application was made.
On 7 September 2023, the applicant was refused bail in the Informant Lopez matter at the Broadmeadows Magistrates’ Court on the basis that he failed to show a compelling reason, and that he remained an unacceptable risk of committing an offence while on bail, endangering the safety or welfare of any person, and failing to surrender into custody in accordance with conditions of bail.
On 31 October 2023, the applicant was refused bail in the Informant Singh, Informant Di Napoli and Informant Lopez matters at the Heidelberg Magistrates’ Court on the basis that he failed to show exceptional circumstances and was an unacceptable risk of committing an offence while on bail.
On 15 December 2023, the applicant filed a notice of application for bail in this Court.
The applicant’s matters are next listed on:
(a) 18 January 2024, for mention at Heidelberg Magistrates’ Court (Informant Black, Informant Watson and Informant Lopez matters);
(b) 16 February 2024, for contest mention at Broadmeadows Magistrates’ Court (Informant Singh and Informant Di Napoli matters); and
(c) 18 April 2024, for mention at Heidelberg Magistrates’ Court (Informant Rainey matter).
The applicant has remained in custody since 31 August 2023, a total of 141 days at the time of the bail hearing.
The alleged offending
Between 7 December 2020 and 22 August 2023, the applicant and his neighbour, NL, applied for a number of personal safety intervention orders [‘PSIOs’] against each other. In this period:
(a) three interim orders were made, naming the applicant as the protected person and NL as the respondent; all of which were subsequently struck out or withdrawn; and
(b) two interim orders were made naming the NL as the protected person and the applicant as the respondent (namely, an interim order made on 7 December 2020, which was made into a final order on 3 August 2021, and an interim order made on 9 June 2023, which was made into a final order on 22 August 2023).
Informant Black matter
On 30 March 2021, the applicant approached the home of NL and paced outside for one hour. During this time, the applicant yelled profanities, gestured with his middle finger, and mocked NL. As a result of the alleged offending, his neighbour was afraid to leave his home and missed a medical appointment.
Informant Watson matter
On 15 June 2022, the applicant stood outside NL’s house and took a photograph of NL.
When interviewed, the applicant admitted taking the photograph. He stated that NL was constantly watching and aggravating him, and that he took the photograph as evidence of NL’s stalking behaviour.
Informant Singh matter
On 7 June 2023, a member of the public observed the applicant’s car slowly rolling out of the KFC carpark in Fawkner. The applicant was in the driver’s seat, but appeared to be coming in and out of consciousness. The witness removed the keys, stopped the car and called emergency services.
Police searched the applicant and his car, and located:
(a) 9.07 grams of methylamphetamine;
(b) 0.47 grams of heroin;
(c) 15.77 grams of GHB; and
(d) 30 capsules of pregabalin.
The applicant was taken to hospital, where he remained overnight. Upon his discharge, he was arrested and remanded in custody.
Informant Di Napoli matter
On 8 June 2023, the applicant appeared at Broadmeadows Magistrates’ Court to represent himself for a bail application in the Informant Singh matter.
When bail was refused, the applicant became agitated. Three police custody officers attempted to handcuff him. The applicant resisted, and the officers used force to subdue him. The applicant punched an officer to the face and scratched his hand, the latter of which caused a small laceration. The applicant also hit a second officer, causing a small cut to his lip.
Informant Rainey matter (summons)
On 16 June 2023, NL arrived home to find his yard flooded with 10 centimetres of water. The water was coming from a hose from the applicant’s property, which had been placed under the shared fence.
When interviewed, the applicant denied intentionally interfering with NL’s property. He stated that he had left the hose running in order to water his plants along the fence and that NL must have grabbed the hose and deliberately flooded his own property.
Informant Lopez matter
On 30 August 2023 at 10:00pm, police attended the Shell Coles Express carpark in Bundoora in response to an emergency call. The caller reported that the applicant was unconscious in his car.
Police searched the applicant and his car, and located:
(a) 13.1 grams of heroin;
(b) 4.6 grams of methylamphetamine;
(c) 1.3 grams of cannabis;
(d) 15 tablets of Valium;
(e) 6 tablets of Lyrica; and
(f) $4,190 in cash.
The applicant was initially transported to Heidelberg Police Station, however he suffered a medical event whilst in custody and was then transported to hospital by ambulance.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (Vic) [‘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).
Step 1 — exceptional circumstances test
The parties agree that the exceptional circumstances test applies to the present application. This is either on the basis that:
(a) the applicant has been charged with committing a Schedule 2 offence (the Informant Lopez matter) while at large awaiting trial (following his erroneous release from custody on 23 August 2023, and the subsequent issuing of warrants for his arrest) for another Schedule 2 offence (the Informant Singh matter); or
(b) Informant Lopez located the applicant in possession of various drugs and cash suspected to be proceeds of crime, while the applicant was on bail. This constitutes “committing an indictable offence whilst on bail”, which is contained in Schedule 2 and enlivens the exceptional circumstances test. Although the applicant has not yet been charged with the offence of committing an indictable offence whilst on bail, section 4AA of the Act uses the langue of a “person accused of a Schedule 2 offence”. The respondent made it clear in its written submissions that it accuses the applicant of this offence, thereby requiring him to show exceptional circumstances.
The applicant bears the onus of proving to the requisite standard that exceptional circumstances exist to justify the grant of bail.[2] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[3]
[2]Ibid ss 4A(1A)–(2), 4C(1A)–(2).
[3]Ibid s 4A(3).
Step 2 — unacceptable risk test
If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[4] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that this risk is an unacceptable one.[5] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[6]
[4]Ibid ss 4A(4), 4D(1)(a).
[5]Ibid s 4E(1)–(2).
[6]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 42 years old. He was diagnosed with type one diabetes at the age of nine, and has a history of substance abuse. He has previously experienced chronic homelessness and has been in receipt of the Disability Support Pension.
Since June 2017, the applicant has lived in a transitional property in Preston, with the support of Launch Housing. He is able to return to his address, if granted bail.
Criminal history
The applicant has a lengthy criminal history, commencing in 1998 at age 17.
The majority of his criminal history involves drug‑related offending (including possessing, using, cultivating, and trafficking drugs of dependence), as well as offences relating to driving and dishonesty. He has one prior conviction for committing an indictable offence whilst on bail, in 2023.
Violence, although present, is not a prominent feature of the applicant’s previous offending. He has five convictions for violent offending,[7] all of which occurred over 20 years ago. He has four previous convictions for possessing weapons, which date back to 2002, 2005, 2016 and 2018.
[7]Namely, intentionally causing injury, stalking, breaching an intervention order, unlawful assault, and make threat to kill.
The applicant also has a number of convictions for failing to comply with court orders,[8] however the majority of this offending is historic; with the most recent conviction of this kind being a failure to answer bail in 2017.
[8]Namely, failing to answer bail (in 2000, 2005 and 2017), breaching a suspended sentence order (in 2003, 2004, 2005 and 2007), failing to comply with a community based order (in 2002 and 2005), breaching an intensive correction order (in 2001), and breaching an adjourned undertaking (in 2000).
In the last 20 years, he has only received one community‑based sentence (on 16 September 2021), which he appears to have complied with.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Exceptional circumstances
Nature and seriousness of the alleged offending
The applicant concedes that drug trafficking is a serious offence. However, he submits that in this case, the quantity of drugs alleged to have been in his possession was relatively low, and the nature of the alleged offending was unsophisticated. The applicant highlights that there is no evidence that the alleged offending was pre‑planned or connected to a larger organised crime group. Further, it is submitted that the applicant has a viable defence, namely that he possessed the drugs for the purpose of feeding his own habit and not for the purpose of trafficking them.
In relation to the breaches of the PSIOs, the applicant acknowledges that breaching such orders is a serious offence, but submits that the breaches were comparatively low‑level. It is noted that there was no violence involved, and that most of the breaches consisted of swearing, rude gestures and other minor conduct.
Strength of the prosecution case
The applicant submits that there are triable issues in the matters of Informant Singh and Informant Lopez. With respect to the Informant Singh matter, the applicant states there is a lack of evidence of trafficking indicia, beyond the prima facie traffickable amounts of drugs found and a small quantity of money alleged to be proceeds of crime. As for the Informant Lopez matter, the applicant disputes the quantum and purity of the drugs found.
The applicant states that the Informant Black and Informant Watson matters have resolved, with guilty pleas on all charges.
Family support and stable accommodation
The applicant is supported by his mother, Catherine Nasic. Ms Nasic gave oral evidence during the application hearing. She confirmed that she has regular contact with the applicant, and frequently delivers meals to him when he is not in custody.
Further, if granted bail, the applicant is able to return to his home in Preston. While the applicant concedes that this home is next to NL, the protected person in the PSIOs that apply to the applicant, it is submitted that none of the confrontations involve physical violence.
Special vulnerability
The applicant submits that he is of ill health, noting his diagnosis of type one diabetes during childhood and a recent hospitalisation on 14 November 2023 (during his current remand period). Recent clinical notes from September 2023 note that he has a possible cancerous lump and may need to have his left leg amputated due to complications associated with his diabetes.
Further, a report filed by the Court Integrated Services Program [‘CISP’] notes that the applicant has previously been diagnosed with anxiety, depression, neuropathy, ulcers, arthritis and carpal tunnel syndrome. He is currently prescribed Avanza and has reported a significant decline in his mental health while being held in custody, particularly after he was the victim of an unprovoked stabbing attack.
While it is acknowledged that the applicant has a history of poor compliance with his insulin medications, it is contended that his constellation of health problems make his time in custody more onerous.
Availability of treatment and bail support services
Launch Housing
The applicant is supported by Launch Housing. Owen Vickery, the applicant’s case manager, provided a letter of support dated 11 December 2023. In the letter, Mr Vickery states that during the year he has known the applicant, the applicant has engaged well with him, successfully sustained his transitional tenancy, worked towards other housing goals, and managed neighbourhood fatigue.
The applicant’s current care team in the community includes:
(a) Mr Vickery, the applicant’s case manager at Launch Housing;
(b) ‘Andrew’, an ex‑Corrections officer;
(c) ‘Div’ at Haven Home Safe, who provides tenancy support; and
(d) a nurse at Plenty Valley Community Heath Care Centre.
Mr Vickery states that, should the applicant be released on bail, he will regain access to the supports provided by his care team and Launch Housing, and that additional mental health and social support will be sought following his release, to assist his reintegration into the community.
Mr Vickery also gave oral evidence during the application hearing. He confirmed that efforts are currently underway to find alternative accommodation for the applicant, due to the ongoing conflict with NL. He also stated that the applicant has continued to engage with support services, and gave an undertaking that he would contact the police were the applicant to breach any grant of bail.
Court Integrated Services Program
The applicant has been found suitable for CISP, and relies on its support. He submits that this support will assist him to access treatment for his substance abuse issues. Currently, the plan is for CISP to:
(a) refer the applicant to the Australian Community Support Organisation [‘ACSO’] for initial comprehensive drug and alcohol assessment to determine treatment needs and specialised treatment;
(b) refer the applicant to attend his GP for medical and medication review;
(c) assist the applicant with an appointment to continue pharmacotherapy; and
(d) continue to meet with the applicant regularly.
During oral submissions, the applicant’s counsel submitted that this plan should reassure the court that, if released on bail, the applicant would not be “left to his own devices”.
Delay
The applicant notes that the Informant Di Napoli and Informant Singh matters are listed for contest mention on 16 February 2024. The applicant submits that, should the matters progress to a contested hearing, then optimistically the hearing will be heard in mid‑2024.
The applicant therefore contends that there is a real danger that, if he were to remain in custody until the final determination of all his matters, his time on remand would exceed any sentence that could be imposed. He submits that a short custodial sentence, combined with an onerous Community Correction Order, would be within range if he is found guilty on all charges. It was noted that the applicant has already spent more than five months on remand since his initial arrest in August 2023.
The applicant relies upon Re Jiang[9] in making the submission that there is an inherent injustice in remanding an accused person in custody for a period longer than the likely sentence.
[9]Re Jiang [2021] VSC 148 (Lasry J).
Onerous conditions in custody
The applicant submits that judicial notice should be taken of the current conditions in custody being more onerous than usual due to COVID‑19 measures. The applicant submits that these measures, in combination with his personal circumstances, mean a period of imprisonment weighs more heavily on him.
Unacceptable risk
The applicant contends that he does not pose an unacceptable risk, given his poor physical health, mental health concerns and the fact that his offending is unsophisticated and concerns small quantities of drugs. It is submitted that, with appropriate support, the prospect of him committing further offences is low.
Further, counsel for the applicant submitted that any unacceptable risk alleged by the respondent can also be moderated to an acceptable level by the imposition of the following conditions of bail, namely that the applicant:
(a) reside at his address in Preston;
(b) notify the informants of any change of address within 24 hours of such change;
(c) comply with the PSIO made by the Heidelberg Magistrates’ Court;
(d) report daily to the Brunswick police station between 6:00am and 9:00pm;
(e) not leave his address between the hours of 9:00pm and 6:00am unless directed by CISP or a police officer;
(f) present at the front door of his bail address between the hours of 9:00pm and 6:00am if and when requested by a police officer; and
(g) comply with the lawful directions of CISP at Broadmeadows.
When the applicant’s counsel was asked about the applicant’s history of driving while drug‑affected, and the potential that he might endanger the community by continuing to do so, the applicant’s counsel noted that the applicant would also agree to a condition that he not drive a motor vehicle while on bail.
The respondent’s contentions
The application for bail is opposed on the basis that the exceptional circumstances test is not made out, and that there is an unacceptable risk that the applicant would:
(a) commit an offence whilst on bail; and
(b) fail to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, the respondent relies on the following matters.
Exceptional circumstances
Criminal history and bail compliance history
The respondent submits that the applicant has a relevant prior criminal history, including convictions for drug trafficking and possession, as well as committing indictable offences whilst on bail.
Family support and stable accommodation
In relation to the applicant’s mother, the respondent submitted that her support was not a sufficient protective factor. During cross‑examination, Ms Nasic admitted that she was unaware of the applicant’s persistent drug use, beyond some historical issues with marijuana. She also displayed a lack of familiarity with the applicant’s prior court appearances, and was unable to explain how she would support her son’s rehabilitation going forward.
As for the applicant’s proposal to live at his residential address in Preston, the respondent notes that this will place him in close proximity to NL, who lives in the neighbouring property. Under cross‑examination by the respondent, Mr Vickery acknowledged that there was little prospect of alternative accommodation becoming available to the applicant in the immediate future.
Special vulnerability
The respondent notes that documentation provided by the applicant in support of his diagnosis of diabetes also states that the applicant “doesn’t seem to be all that involved with his diabetes care and doesn’t report ever seeing an endocrinologist”. However, the respondent acknowledges that this documentation is from 2006.
Delay
The respondent accepts that the issue of delay is a very significant factor in the present application, as there is a risk that the applicant may, if he is not released on bail, spend more time in custody on remand than the ultimate sentence to be imposed.
Availability of treatment or bail support services
In response to the applicant’s submission that he may be able to receive treatment for his cyclical substance abuse via CISP, the respondent submitted that the proposed plan for the applicant is limited. Under cross‑examination, Mr Vickery agreed that the strategy of Launch Housing was “general” in nature and did not contain a timeline for the applicant to work towards. It is submitted that a more intensive and structured program is required to wean the applicant off his decades‑long drug use.
Further, the respondent drew the court’s attention to the fact that Mr Vickery was not aware of the nature of the applicant’s disagreement with NL, nor that various PSIOs had been made in respect of the applicant.
View of victims
The respondent notes that the victims of the applicant’s crimes have stated that they are opposed to the granting of bail.
Unacceptable risk
Committing an offence whilst on bail
The respondent highlights that the applicant’s most recent alleged offending was committed whilst he was on bail; namely, the Informant Singh matter is alleged to have occurred whilst the applicant was on bail in the Informant Black and Informant Watson matters. It is submitted that there is an unacceptable risk the applicant will again offend while on bail. This risk is said to have two components.
First, the respondent submits that there is a risk that the applicant will again breach the PSIOs in respect of NL if he is bailed to his usual residential address in Preston. It is also noted that NL is a “vulnerable prosecution witness” and “repeated victim” of the applicant’s alleged conduct.
Second, the respondent contends that there is an unacceptable risk the applicant will commit further drug‑related offences, given his drug addiction. As noted above, the respondent takes issue with the plan prepared by CISP and submits that there is presently insufficient support in place to wean the applicant off drugs. When asked whether regular judicial monitoring could be a protective factor, in that it would enable the court to track the applicant’s rehabilitation, the respondent agreed that this could reduce the risk to an extent. Further, the respondent raised the prospect of making it a condition of bail that the applicant only possess one mobile phone, and that he provide the IMEI number and login details of this phone to police, so that they can ensure he is not communicating with other drug users.
Failing to surrender into custody in accordance with the conditions of bail
The respondent submits that the applicant has demonstrated poor compliance with bail in the past. It is contended that the applicant’s drug addiction and criminal history also cast doubts to his ability to comply with the conditions of his bail.
However, during cross‑examination by the applicant’s counsel, Informant Singh indicated that a daily reporting and curfew condition would address any concerns about the applicant failing to surrender into custody in accordance with the conditions of bail.
Analysis and conclusions
Introduction
As noted above,[10] the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail.
[10] See paragraph 31 above.
If he succeeds in doing so, the onus then falls on the prosecution to satisfy the court that:
(a) there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk, that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant’s surrounding circumstances. Further, it must also 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.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
The applicant has relied on multiple factors to show that exceptional circumstances exist, as he is entitled to do so. I have considered the surrounding circumstances that have been raised, along with the views of both parties.
In my opinion, the following factors are of particular importance when considering whether exceptional circumstances exist.
First and foremost is the issue of delay. As conceded by the respondent, it is of great relevance that the applicant has already spent more than five months on remand for the present matters. I agree with the applicant’s submission that his alleged offending, while repetitive and concerning, can be characterised as unsophisticated and towards the lower end of seriousness. I note that the respondent did not disagree with this characterisation. Further, while I accept that the prosecution case against the applicant does not appear to be weak, the applicant disputes elements of the charges and appears to have some arguable defences open to him. This raises the prospect that he may be found not guilty on some of the charges. Nevertheless, even if the applicant is found guilty of all the offences alleged against him, there is a real risk that if he is refused bail, his time on remand may exceed any custodial sentence imposed upon him.
In this respect, I have taken note of the applicant’s reliance on Re Jiang. Delay, and the possibility that the applicant’s time on remand may outstrip any custodial sentence, can be of considerable significance when assessing the exceptional circumstances and unacceptable risk tests.[11]
[11]Re Jiang [2021] VSC 148, [62], [64] (Lasry J).
Secondly, I consider that the applicant’s constellation of health issues constitute a special vulnerability for the purposes of the Act. The documentation before the court shows that the applicant faces the possibility of a cancer diagnosis and the loss of his leg, in addition to a myriad of other chronic conditions. It also appears to the court that the applicant has a decreased level of mobility.
Although the respondent pointed to evidence that the applicant may be partly responsible for the severity of his condition, due to poor compliance with his insulin regime, this documentation dates back to 2006. Further, it is clear the applicant was receiving treatment prior to entering custody, and that he has continued to seek medical help while on remand. All things considered, there is little doubt in my mind that his health conditions render him more vulnerable in custody than the average person, and that this has the effect of making his time on remand more onerous. I also note, with some degree of concern, the assertion that he was the victim of an unprovoked stabbing attack by a fellow prisoner. These matters, in combination, add weight to the applicant’s argument that exceptional circumstances exist in this case.
Finally, the court takes particular comfort in the fact that the applicant, if released on bail, will have the support of CISP and Launch Housing. In my experience, because CISP is integrated with the court system, it appears to be a generally reliable program that presents the applicant with a significant opportunity for rehabilitation. While I accept the respondent’s submission that the plan formulated by CISP presently lacks specificity concerning future goals and deadlines, the applicant’s progress can be tracked by this Court through regular judicial monitoring. This will act as an additional protective factor.
I also found the evidence of Mr Vickery to be of considerable impact in this respect. It appears the applicant is surrounded by a team of dedicated professionals who stand ready to improve his welfare. He is fortunate to have such support. I also note Mr Vickery’s evidence that he will help arrange additional mental health and social support for the applicant, if he is released on bail. During the court hearing, Mr Vickery was made aware of the extent of the issues faced by the applicant, and will no doubt ensure any further support is tailored appropriately. Further, I note that the applicant has the support of his parents, and that regardless of how sophisticated this support is, it is likely to be of benefit to him. In summary, the applicant has available to him a good level of support, although it is entirely to him as to whether he avails himself of it.
Having considered these matters and the evidence before the court, I find that the applicant has satisfied the court that exceptional circumstances exist to justify the grant of bail. However, this is not the end of the matter.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Having concluded that the exceptional circumstances test has been satisfied, I must now consider whether the respondent has shown that the applicant represents an unacceptable risk as defined by the Act. In considering this issue, the court must also take into account surrounding circumstances, which I have done.
The respondent’s argument boils down to two limbs: first, that there is an unacceptable risk that the applicant will reoffend while on bail (by either breaching the PSIOs that concern NL, or by committing further drug offences), or second, that he may fail to surrender into custody in accordance with the conditions of bail.
Turning first to the risk that the applicant will reoffend by contacting NL, I accept that this risk does exist. The allegations before the court indicate that there is a considerable degree of enmity between the applicant and NL. Further, given NL is now a prosecution witness, the temptation to interfere may be greater for the applicant. However, I accept that the applicant’s physical health problems and his desire not to return to custody should be powerful motivating factors that may counteract any such temptation. Further, by making compliance with the PSIOs a condition of bail, the applicant will no doubt understand that a breach of the PSIOs will also contravene his bail, allowing the informant to apply to revoke his bail and place him back in custody. I also note that, although it is unlikely the applicant will move to alternative housing in the immediate future, efforts are being made by Mr Vickery to find him accommodation elsewhere. In my opinion, these factors, in combination, reduce the risk of future offending against NL to an acceptable level.
As to the risk that the applicant will commit further drug‑related offences, his criminal history and the allegations presently before the court clearly demonstrate that he has an ongoing drug problem. However, as I have observed in other bail applications, drug addiction is pernicious and recovery is rarely linear or straightforward. With the support of CISP, Launch Housing and medical personnel, I consider that there are sufficient safeguards in place to help the applicant wean himself off drugs. I also note the respondent conceded that a condition requiring the applicant to possess one mobile phone, and provide the IMEI number of this phone to police, will go some way to addressing this risk. I propose to make such an order. Therefore, I again find that this risk can be reduced to an acceptable level through the imposition of bail conditions requiring the applicant to engage with the services available to him and give his phone details and access to police. There is a risk that he will drive in a drug induced state, and that represents, in my opinion, a significant risk to the public. He will not be permitted to drive. This should reduce the risk to the public, in that particular respect.
Turning to the risk that the applicant will fail to surrender into custody in accordance with the conditions of bail, the respondent submitted that this risk can be considered unacceptable due to the applicant’s drug addiction and criminal history. While I accept that the applicant has demonstrated poor compliance with bail in the past, his most recent failure to answer bail dates back to 2017 in the Heidelberg Magistrates’ Court, for which he was fined $100.00. He has had multiple court appearances since then, most of which he appears to have attended. In my view, there is insufficient evidence to show that there is an unacceptable risk he will fail to answer bail in this instance. Regardless, this is the first time the applicant will be admitted bail in the Supreme Court of Victoria. I trust that his counsel will impress upon him that he is before the highest court in this jurisdiction, and that this court will not tolerate any failure to comply with his bail conditions.
Having considered the arguments on both sides, and the draft conditions provided by the parties, I am of the view that the risk posed by the applicant can be moderated to an acceptable level by the imposition of bail conditions.
In this respect, I note that the applicant’s criminal record reveals a long history of persistent, low‑level criminal offending. As was observed during the hearing of this application, the patience of the court system and the community cannot be expected to last forever. The applicant’s offending has often represented a persistent encumbrance to the operation of the criminal justice system, as well as to those around him; and has resulted in a significant waste of community resources that could be better used elsewhere with more deserving people.
In my opinion, the applicant has reached a stage in his life where he needs to seriously consider his health and future prospects. If he fails to improve and engage with the many services available to him, he can expect to find himself in and out of custody for the rest of his life.
Conclusion
Accordingly, bail will be granted to the applicant in the following terms, namely that he:
(a) reside at his address in Preston;
(b) notify the informants of any change of address within 24 hours of such change;
(c) comply with the conditions of any PSIO presently in force that names the applicant as the respondent;
(d) report every Monday, Wednesday and Friday to the Preston police station between 6:00am and 9:00pm;
(e) not leave his address between the hours of 9:00pm and 6:00am unless directed by CISP or a police officer;
(f) present at the front door of his bail address between the hours of 9:00pm and 6:00am if and when requested by a police officer;
(g) comply with the lawful directions of CISP;
(h) possess only one mobile phone, and provide the IMEI number and login details of this phone to a police officer upon request;
(i) not drive a motor vehicle; and
(j) appear before the Supreme Court of Victoria for judicial monitoring at a date and time to be fixed.
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