Re Russell
[2021] VSC 657
•8 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0249
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by JENAE RUSSELL |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2021 |
DATE OF JUDGMENT: | 8 October 2021 |
CASE MAY BE CITED AS: | Re Russell |
MEDIUM NEUTRAL CITATION: | [2021] VSC 657 |
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CRIMINAL LAW – Bail – False imprisonment and perjury – 40-year-old mother of three children - Some criminal history but little for violence – First time in custody – Onerous custodial conditions due to impact of COVID-19 – Likely 2½ year delay before trial – Availability of strong family and other supports including CISP – Stable accommodation – Substantial surety – Compelling reason made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Cameron | Stary Norton Halphen |
| For the Respondent | Ms E Maguire | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges she faces of false imprisonment (charge 1), intentionally causing injury (charge 2), committing an indictable offence whilst on bail (charge 3), theft (charge 4), perjury (charge 5), possession of cannabis (charge 6), and possession of cartridge ammunition (charge 7). The informant in respect of all of the charges is Detective Senior Constable Kate Shell (‘the informant’) .
It is agreed between the parties that because of the nature of the charges faced by the applicant, I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[1]
[1]Bail Act 1977, s 4C(1A).
Procedural history and brief chronology
The alleged offending took place on 20 June 2021 and 10 August 2021. At the time, the applicant was subject to a grant of bail on a single charge of possessing a drug of dependence (methylamphetamine) and was also subject to a summons for a charge of driving whilst suspended.
The applicant was arrested and charged with the first six charges on 10 August 2021. She was charged with charge 7 on 13 September 2021. A filing hearing was held on 11 August 2021 and the applicant was remanded in custody for a committal case conference on 26 October 2021. The hand-up brief was served on or about 14 September 2021.
The applicant applied for bail in the Magistrates’ Court on 18 August 2021. Bail was refused by the learned magistrate on the ground that the applicant was an unacceptable risk within the meaning of s s4E(1) of the Bail Act 1977 (‘the Act’).
All co-accused other than Angwin and Salau have brought unsuccessful applications for bail in the Magistrates’ Court. All co-accused currently remain in custody.
Summary of offending
The alleged offending involves a total of nine offenders including the applicant and concerns the false imprisonment and assault of a man named Michael Mavroudis-Rigbey (‘MVR’ or ‘the complainant’) over a period of almost 20 hours on 20 June 2021. Those said to be involved in the offending other than the applicant are:
i.Todd Angwin (‘Angwin’)
ii.Casey Bales (‘Bales’)
iii.Toby Bales
iv.Peter Criggie
v.Symon Munson
vi.Lauren Nicholls
vii.Matt Salau (‘Salau’)
viii.Kelly Snowden.
The alleged offending relates to the false imprisonment of MVR on 20 June 2021, with the motive of the offenders being to seek to extract a sum of money owed by MVR to Angwin over a drug transaction. It is alleged that MVR was held against his will at the premises in question between the hours of 1.50am and 9.40pm. During that time, he was shot seven times with an air rifle, threatened and assaulted in a number of ways.
On 19 June 2021, Toby Bales contacted MVR to arrange the purchase on behalf of Angwin of seven grams of methylamphetamine (‘MA’). Bales received $2000 from Angwin and transferred it electronically to the complainant. The complainant withdrew the money from an ATM. He then attended an undisclosed address in Mooroolbark to purchase the MA. He claims that an unknown offender at that address stole the money from him without giving him any drugs. The complainant contacted Bales and informed her that the money had been stolen. Bales told the complainant to attend at an address of 6 Raquel Close, Carrum Downs, which was the home address of Angwin, and the location at which the offending occurred.
By way of background to the events which followed and the applicant’s alleged knowledge of and involvement in them, in her later police interview, she stated that Angwin had sent her a text message prior to the offending indicating that the complainant owed him $2000. According to the applicant, Angwin asked her if her ‘boy’, a reference, on the prosecution case, to her housemate, Salau, wanted to ‘take out some frustrations’.
At 1.50am on 20 June 2021, MVR attended at the address, where he was met by Angwin and Bales. He was asked by Angwin to go for a chat, and followed Angwin onto the property and into a small corrugated iron shed in the side yard. The area surrounding the shed was captured by a CCTV camera positioned on the side of the house. MVR informed Angwin of the theft of his money, and was told by Angwin, ‘You’re not leaving until the money is returned’. Angwin instructed Bales to search the complainant for money and drugs. A number of other co-offenders arrived at the scene and went inside the shed. Angwin was in possession of a black coloured air rifle. After asking the complainant, ‘Where the fuck is the money?’, he discharged the rifle into the inner thigh of the complainant while other co-offenders looked on. The complainant was menaced by one of the others with a black handgun. Angwin discharged the rifle for a second time into the complainant’s right testicle and then into the base of his penis, the pain caused by the latter shot causing MVR to lose consciousness.
At about 2.50am, Salau attended at the premises. He punched the complainant repeatedly, held the flame from a gas bottle towards his head, struck him with the bottle, and was present when Angwin shot him twice to the left knee. Salau left the premises at 4.20am.
At 4.16am, the complainant was moved from the shed into the house. At 5.24pm, the applicant arrived. She allegedly took the complainant’s mobile phone and stated, ‘Take your pin off or my mate from last night[2] is going to your mum and dad’s’. The complainant complied with this request and the applicant retained the phone, which has never been recovered. The applicant left the premises at 6.07pm, returning again at 8.30pm.
[2]On the prosecution case, this was a reference to Salau.
At 9.08pm, the applicant and Angwin directed the complainant to return to the shed. Angwin entered the shed carrying the air rifle. The applicant followed some distance behind, and other co-accused also came into the shed. The applicant began to make handcuffs with cable ties, and demanded that the complainant remove his clothes. He refused to do so. It is alleged that while the applicant was in the shed, Angwin shot the complainant again, this time to the testicle. Shortly after this, Angwin, the applicant, and other co-accused walked out of the shed. The applicant can be seen on CCTV footage holding two mobile phones, which the other co-accused appeared to look at. Angwin was still in possession of the air rifle.
The applicant and Angwin re-entered the shed at 9.19pm. At 9.20pm, Angwin sent a text message to another co-accused stating, ‘Just thought I would let you know that I got him in the nuts again’.
At 9.40 pm, the complainant managed to escape by running through the side gate to a neighbouring property. Police were called and subsequently attended. The complainant was transported to hospital by ambulance and received treatment for his injuries. The injuries included superficial penetrating injuries to the thigh, patella, and scrotum. Amongst other things, surgical intervention was required at the Royal Eye and Ear Hospital for the removal of a projectile from under his eye.
Police investigation
At 1.15pm on 21 June 2021, police executed a search warrant at the premises. The applicant was present at the time. Various items were seized including a CCTV hard drive, a gas bottle and cable ties. The applicant made a false statement to police at the premises in which she claimed that she was not present at the time of the offending.
On 24 June 2021, police recovered footage from the seized CCTV hard drive, which had been deleted. The prosecution allege the footage depicts the movement of the various accused, including the applicant, in and out of the shed over the relevant period, and carrying weapons alleged to have been used.
On 10 August 2021, police executed a search warrant at the applicant’s residence in Bonbeach. They seized clothing she was depicted wearing in the CCTV footage, cannabis, a single item of cartridge ammunition and a mobile phone. The applicant was arrested and interviewed. She admitted to receiving a text message from Angwin stating he was owed $2,000 by a guy, and asking if her ‘boy’ (referring to Salau who was living with the applicant) wanted to ‘take some frustrations out’. She denied passing this message onto Salau and claims she responded ‘no’. The applicant admitted to attending the premises once in the subsequent days, and observing Angwin assaulting the complainant and him being taken to the shed. She denied touching the complainant’s mobile phone or seeing him being shot. When questioned in relation to the cable ties, she explained that she could have moved them to ‘tidy up’, and denied making handcuffs. She also said that other co-accused deleted the CCTV footage.
The prosecution also rely on the following evidence in relation to the applicant:
· Her fingerprints were located on a gas bottle and a cable tie container found by police in the shed.
· The complainant identified the applicant in a photo board procedure conducted on 16 August 2021.
· The applicant had a conversation with a covert operative in the holding cell at Frankston Police Station after her arrest, during which she stated she lied to police about not being present when the offending took place, the complainant escaped whilst she was still present, and the CCTV footage had been deleted.
Personal background and criminal history
The applicant is 40 years of age. She is married to Troy McKenzie with whom she shares a child aged 11. She also has two older children aged 15 and 17 with her ex-partner, Stuart Russell. Mr Russell lives on the same street as the applicant and they co-parent their children. Both Mr McKenzie and Mr Russell are employed.
The applicant previously ran a business cleaning and maintaining horse paddocks. During the pandemic, she has been home-schooling the children. The applicant has a history of substance use and mental health issues.
The applicant has a criminal record, primarily comprising of drug, weapon and driving related offending, her most recent conviction being in 2014. In summary:
· March and May 2009 – found guilty (without conviction) of various offences including unlawful assault. She was sentenced to a community based order for 5 months.
· June 2013 – convicted of trafficking methylamphetamine, possessing a drug of dependence (two charges), possessing a prohibited weapon and possessing cartridge ammunition. She was sentenced to a 15 month community correction order (‘CCO’) including a condition as to assessment and treatment for drug abuse or dependency.
· March 2014 – found to have contravened the CCO, following which the applicant was re-sentenced on the original offences to 6 months’ imprisonment, wholly suspended with an operational period of 2 years.
· September 2014 – convicted of possessing drugs of dependence (six charges), and fined.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[5]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[6]
[5][2019] VSCA 214.
[6]Ibid [43].
The evidence in the application
Aside from the affidavit and other written material on which the parties relied, sworn evidence was called from two witnesses during the application.
The informant was cross-examined in some detail by Mr Cameron for the applicant about the nature and strength of the prosecution case against the applicant and the concerns held by the informant as to the risk posed by the applicant.
Mr Russell, the applicant’s ex-husband, gave evidence concerning his knowledge of and relationship with the applicant and their parenting arrangements for their two children. Mr Russell indicated that he lives two doors along from the applicant and is on good terms with both the applicant and her current partner. They cooperatively look after their children. Mr Russell indicated that he would be willing to have the applicant live with him in the event of a grant of bail, and gave an undertaking that he would report any breaches of bail by her to the informant. He offered a surety of $50,000 secured by the equity in his home.
Applicant’s submissions
In the context of a detailed examination of the surrounding circumstances of the case in both his written outline and oral submissions, Mr Cameron relied upon a combination of the following main matters in support of his contention that a compelling reason had been shown to exist:
(a) The applicant’s limited criminal history. Mr Cameron noted the age of the applicant, the seven year gap since her most recent conviction, the absence of convictions for breaching bail and sole conviction for contravening a CCO, the fact of there being only one matter of violence in the history, the preponderance of drug-related offending in the history, and the fact that the pending matters outside the current charges concern relatively minor offending.
(b) This is her first time in custody.
(c) The increased burden of remand as a result of the COVID-19 pandemic. Mr Cameron noted that the entirety of the applicant’s time on remand thus far has been served during a time when the pandemic has significantly impacted conditions in custody. Aside from the matter of the ever-present spectre of lockdowns, the reduction in educational and other services and the risk of transmission of the virus, the applicant has not been able to have direct contact with her children as visits have not been permitted. Mr Cameron referred to a number of decisions of judges of this Court in connection with the importance of the onerous conditions on remand.
(d) Delay. Mr Cameron noted that the applicant has already been in custody for almost two months. It would be highly improbable that the committal hearing would proceed until 2022. On present indications from the County Court, the very earliest that the trial would proceed would be about July 2023. In light of the ongoing uncertainty in listings due to the pandemic, the large number of accused and the potential for significant pre-trial issues, there would be a very real prospect that the applicant may spend at least 2½ years on remand awaiting trial if not bailed in the meantime. Even in the COVID-19 environment, that, submitted Mr Cameron, would be an extraordinary delay, particularly for a 40-year-old on remand for the first time and enduring the current onerous conditions.
(e) The availability of strong community supports including family and Court Integrated Services Program (CISP) support. Mr Cameron pointed to the support available to the applicant from her current partner and also her former partner Mr Russell, and that on offer as indicated in the report from CISP dated 6 October 2021 which was provided to the Court. That report outlined the applicant’s problem with illicit drugs and some mental health concerns which, whilst not the subject of a formal diagnosis, were of some significance in the mind of the author of the report. It also considered the applicant’s relationship with her current partner which has been marked by family violence. The report proposed a number of steps to be taken by the applicant, under the supervision of CISP, should bail be granted.
(f) The availability of stable accommodation. Whilst in the affidavit in support it was proposed that the applicant would return to live with her partner and child in Bonbeach, by the time of the application, in light of the family violence concerns noted in the CISP report and the willingness of Mr Russell to provide accommodation for the applicant just along the street from her former home, it was proposed that she reside with him. He would be better able to watch over and keep an eye on her if she was living under his roof. This was particularly so if he was acting also as the surety. The applicant would still be able to engage in the care and home schooling of her children. The positive and supportive relationships between the three adults and the children could continue, with the additional oversight and comfort to the Court in granting bail in the knowledge that the applicant would reside with Mr Russell.
(g) The availability of a substantial surety. As indicated earlier, Mr Russell offered a surety of $50,000.
Beyond the above matters, there were other aspects of the surrounding circumstances which were the subject of quite detailed treatment by Mr Cameron. Two of these were the seriousness of the offending and the strength of the prosecution case.
In respect of the former, Mr Cameron, whilst acknowledging that the offending alleged against the applicant is serious, submitted that her role must be seen as ‘significantly lesser than that of her co-accused’.[7] The co-accused had been present for longer periods of time, and had had ‘much more extensive engagements, both verbally and physically with the complainant’.[8] He submitted that:
caution is required to ensure that knowledge of and/or responsibility for the entirety of the alleged offending is not sheeted home to the applicant in circumstances where the evidence does not allow this.[9]
[7]Outline [17].
[8]Transcript 39.
[9]Outline [18].
Turning to the strength of the case, Mr Cameron made the point that a good deal of the case against the applicant relies upon an acceptance of the evidence of the complainant, a witness who, submitted Mr Cameron, is neither credible nor reliable. He submitted that the accounts of the complainant contained in his two main statements as to the conduct of the applicant contain significant inconsistences which cannot be explained by the circumstances in which the witness found himself at the time of making the first statement. Mr Cameron outlined a number of other deficiencies in the case, in support of his contention that whilst the case is not a weak one, there are certainly triable issues.
In respect of the likely sentence should the applicant be found guilty, Mr Cameron submitted that whilst a term of imprisonment would be highly likely, she would face the very real prospect of serving a period of remand greater than the term to which she might be sentenced. It is arguable, he submitted, that a sentence involving a combination of a term of imprisonment of up to a year and a CCO may be imposed.
In conclusion, Mr Cameron submitted that a compelling reason had been well and truly demonstrated. Whilst the offending is serious, ‘nearly every other factor in this case in terms of the surrounding circumstances…leads down the path towards a finding that there is a compelling reason’.[10]
[10]Transcript 70.
On the question of unacceptable risk, Mr Cameron went through each of the heads of unacceptable risk relied upon by the respondent. He acknowledged that in this as in all cases, the applicant does pose some risk. In respect of some of the heads of risk, Mr Cameron submitted that the risk pointed to was not unacceptable. In all cases, in any event, he submitted that the imposition of strict condition could address the risk such that it would not be unacceptable.
Respondent’s submissions
For the respondent, Ms Maguire made it clear that she relied to a large extent upon the detailed analysis of the relevant legal and factual aspects of the case contained in the affidavits of Michael Robinson and the informant. She did not seek to go over all of this material.
The affidavit of Mr Robinson set out a summary of the offending overall and the applicant’s alleged role in it. It also responded to the applicant’s affidavit in support and outlined why bail was opposed, asserting that in light of the strong case against the applicant for serious offending, bearing in mind the significant criminal history of the applicant and her recent failure to comply with bail, the applicant had not discharged the burden resting on her of showing a compelling reason. As for the unacceptable risk posed by the applicant, the features of this were detailed.
The informant’s report, also, set out in detail the reasons for opposition to a grant of bail.
Ms Maguire submitted, on the force of the material set out in the documents, that a compelling reason has not been made out. She then went on to consider the question of unacceptable risk, correctly pointing out that that assessment needs to be carried out by a consideration of the surrounding circumstances as per s 3AAA of the Act. She then addressed each of these in turn, by reference to their impact on the question of risk.
First of all, Ms Maguire submitted that the offending alleged is very serious. The false imprisonment, being for a prolonged period, by a number of people and involving the use of weapons, force and threats to enforce the repayment of a debt, is towards the higher end of the range of seriousness. Even acknowledging that the applicant was present for a shorter period of time than the co-offenders, she made direct threats to the complainant’s family, was present when he was shot, made efforts to fashion cable-tie handcuffs, and attended twice at the property. She was no mere passive observer but a serious participant. All these matters were particularly relevant to an assessment of the risk she poses of endangering the safety of the public.
The lies she told as reflected in the perjury charge, the direct threat made to the complainant as to his family, and the fact that the applicant was the last person seen in possession of the phone of the complainant containing his personal and family contact details, go to an assessment of the risk of the applicant interfering with witnesses or otherwise obstructing the course of justice.
As for the strength of the prosecution case, Ms Maguire submitted that the case against the applicant is a strong one. It is supported by the statements of the complainant, CCTV footage and fingerprint evidence. The evidence of the complainant has yet to be tested at committal, but the explanation he gave for the discrepancies in his statements may be accepted. The contents of the second statement are more consistent with the product of the CCTV camera. As for the applicant’s account to the police, it conflicts in important respects with the CCTV footage.
In respect of the applicant’s criminal history, Ms Maguire accepted the matters to be relatively limited and somewhat dated. However, the history is reflective of a person with a longstanding drug problem, which is relevant in light of the fact the alleged offending is intimately linked to the enforcement of a drug debt. At the time, the applicant was on bail for a drug charge. Clearly, she has continued to associate with people linked to the drug trade. All of this goes to the assessment of the risk she may commit further offences while on bail.
As to the applicant’s drug habit and the resulting risk of reoffending, it was submitted that the services offered by CISP, in part because they are seemingly limited to telephone services, would not ameliorate that risk to an acceptable level. She has had previous opportunities to do something about her drug issues, and has failed to do so. She has previously failed to comply with a CCO.
In respect of the offer of a surety by Mr Russell, Ms Maguire described his evidence as strong, but noted his failure to be aware of the fact that the applicant has a drug habit. This would cast doubt on the matter of whether he would be able to detect if she had recommenced drug use and report this to the authorities.
In respect of one aspect of the unacceptable risk, namely, the risk that the applicant would not answer bail, the respondent’s material noted the strong connection the applicant has with Western Australia (‘WA’), and the intention she previously conveyed to the informant to move there away from her partner. Ms Maguire dealt with Mr Cameron’s treatment of this issue, based in part upon the current existence of border controls into WA, by making the point that the delay in this case will likely extend beyond the time when those restrictions will no longer be in place.
In relation to the fact of the applicant having the care of three children, Ms Maguire submitted that there are alternative carers for the children.
On the important question of delay, Ms Maguire accepted that the delay until a trial will be at least until July 2023, and accepted that there would be a real prospect as asserted by the applicant that she would remain in custody for a period of 2½ years. If found guilty, however, she would be facing a term of imprisonment with a non-parole period, which period would be likely to exceed the period on remand.
Analysis
It is perhaps of some note, and understandable, that whilst devoting some time to the matters of the seriousness of the applicant’s alleged offending, and the strength of the case against her, Mr Cameron did not include either of these matters amongst the principal matters relied on in combination in proof of a compelling reason.
Mr Cameron was quite right to concede that the offending alleged against the applicant is serious. This is undoubtedly so, and nothing is taken away from that proposition by pointing to others whose offending is even more serious and protracted. Even ignoring the text message which the applicant apparently received, which may be viewed as having put her on notice about what was about to take place with the complainant, it is alleged against her that she attended at the property not once but twice, spent something of the order of two hours there over the two visits, must have had knowledge that the complainant had been held against his will for a substantial period of time by a number of offenders, threatened the complainant, stole his phone, and then was present when he was shot in the groin with an air rifle. On any sensible view, the offending of the applicant was very serious indeed, if not at the level of seriousness of that of her co-offenders.
As for the strength of the case, whilst Mr Cameron spoke of triable issues, he was right, I believe, not to seek to describe the case as weak. Looked at, at this early stage, the case is clearly far from weak, and depending upon how the complainant handles cross-examination at the committal hearing, and what the results of further forensic testing are, may turn out to be quite strong.
There is no question in my mind that in this case, by far the most important matter relied upon by the applicant is the long delay which will inevitably occur if the applicant chooses, in the end, to go to trial.
The relativity between the likely delay and the likely sentence upon conviction is often an important consideration. It seems to me that if the applicant is found guilty after a trial, a significant term of imprisonment would be inevitable. I struggle to accept the contention that the applicant could, in those circumstances, as opposed to what may be the case should she plead guilty, could be a candidate for a combination sentence. However, I do accept the defence contention that there would be a real prospect that the period on remand, which may end up being of the order of 2½ years, may exceed any sentence actually required to be served.
I am mindful of the fact that although she does have some criminal history, the applicant is now in custody for the first real time at the age of 40, and that she is a mother of three children who were in her care before she was remanded in custody. I am also very conscious of the difficult conditions in which she has been held to date, and would likely continue to be held for some time to come.
Strong family and other supports are on offer to the applicant, and in particular, her former husband, with whom she is still close, and who, with the applicant and her current partner, is part of a team of three adults who cooperatively provide care for the children, has not only offered her a place to live, but a surety of $50,000. In addition, he has undertaken to keep an eye on her and report any breaches of bail to the police. This support, along with the support offered by CISP, would ensure that were the applicant to emerge from custody at this time, she would be able to call on the assistance of others to help her on her way.
Turning to the question of risk, which of course, is something which can be factored into the assessment of compelling reason, as well as amounting to a separate head of consideration should the first step in the two-step bail process be surpassed, I acknowledge the force in a number of the concerns raised by the respondent. However, having considered the various heads of risk, and what may be able to be done to minimise them, I do not consider that the risk posed by the applicant is such as to have a powerfully negative input into the question whether she has proved a compelling reason. Rather, I think that a consideration of the offending alleged here in contrast with her proven, somewhat limited criminal history, the strong supports she would have on offer should she be released on bail, and the very clear realisation she would have that any further offending, or even the hint of an attempt to contact the complainant or his family in any way, would inevitably lead to her being again incarcerated, may serve to reduce the risk she would pose, and provide a contribution in her favour on the matter of a compelling reason.
Having carefully considered all of the surrounding circumstances of this case, including a number set out in s 3AAA(1) upon which I have not specifically commented, I am satisfied that a compelling reason exists that justifies the grant of bail to the applicant.
That then takes me to the second step in the bail process. Having considered all of the matters relied upon by the respondent in seeking to prove that the applicant would pose an unacceptable risk on a number of scores if released on bail, whilst I am satisfied that she does pose a risk of a number of these, I am not satisfied that the risk is an unacceptable one.
I cannot leave this application without making three observations. First, the material advanced by both sides in this application by way of written material, sworn evidence and oral submissions, was of a high standard. Secondly, the respondent’s position in opposing bail and the learned magistrate’s decision in refusing bail were entirely understandable. Thirdly, it should not be thought that this decision would have any direct bearing on whether any of the co-offenders should be granted bail. I have made this decision on the material relevant to this particular application by this particular applicant.
Conclusion
For the reasons I have stated, I am prepared to grant bail to the applicant on the strict conditions which I will shortly announce.