Re Rye
[2021] VSC 875
•23 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0370
| IN THE MATTER of the Bail Act 1977 |
| And |
| IN THE MATTER of an application for bail by Scott RYE |
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JUDGE: | Coghlan JA J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 December 2021 |
DATE OF JUDGMENT: | 23 December 2021 |
CASE MAY BE CITED AS: | Re Rye |
MEDIUM NEUTRAL CITATION: | [2021] VSC 875 |
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CRIMINAL LAW – Application for Bail – Possession of drugs of dependence – Possession of controlled weapon – Possession of prohibited weapon - Committing an indictable offence whilst on bail – Compelling reason made out – No unacceptable risk – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Sarah Pratt and Associates |
| For the Respondent | Mr N Watts | Victoria Police |
HIS HONOUR:
The applicant Scott Rye makes application for bail in relation to what were originally three sets of matters which are now two sets of matters. But in fact he will be bailed on all the matters because they are still in existence.
There are a series of matters in relation to which the informant is Senior Constable Lonie (“The Lonie matter”) which involved the possession of a drug of dependence (five counts) and the possession of a control weapon.
The other charges are charges in which the informant is First Constable Sidari (“The Sidari matter”) which are three counts of possession of a drug of dependence, one charge of possessing a prohibited weapon, one charge of possessing a control weapon, one charge of committing an indictable offence whilst on bail, careless driving, failure to stop on police direction and drive in a manner dangerous.
On 14 August 2021 the applicant was charged and granted police bail on the Lonie matters on a single condition that he reside at [redacted] Wheelers Hill.
On 15 November 2021 the applicant was charged and remanded in custody in the Sidari matter.
The applicant was refused bail on the Sidari matter on 26 November 2021 at Melbourne Magistrates Court on the basis that he was an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person and failing to surrender into custody in accordance with bail. His bail on the Lonie matters was revoked on that day.
The Sidari matter is next listed for mention on 10 January at Ringwood Magistrates Court. The Lonie matter is next listed for a plea of guilty on 12 January at Frankston Magistrates Court.
On 14 December 2021 the applicant made an application for bail to this court.
The alleged offending
Informant Lonie matter
On 13 August 2021 police responded to a report of a substance-affected male in a residential street in Capel Sound. On arrival, police located the applicant acting erratically and approached him. The applicant walked past police towards a parked vehicle, before being apprehended by police.
Police searched the applicant and located in his possession nine vials containing anabolic steroids, testosterone and growth hormones, and a folding knife. The applicant was transported to hospital for observation.
On 14 August 2021 the applicant attended Rosebud Police Station he was placed under arrest and made a ‘no comment’ record of interview and was released on the bail to which I have already referred.
Informant Sidari matter
On 11 October 2021 police observed a vehicle with registration [redacted] driving slowly from side to side in Mount Waverley. The vehicle began to speed at approximately 100 km/hr in a 60 km/hr zone, and evaded police. Police attended [redacted] Wheelers Hill and spoke to the applicant’s mother who is the registered owner of the vehicle.
The applicant’s mother, in response to the formal request made to her to provide information as to the driver of the vehicle, said that, and I suspect it gets no higher really, than she though it was her son who had taken the vehicle, although he had been present at her premises with another man.
On 25 November 2021 police responded to reports of a male loitering and attempting to break into a vehicle in Mulgrave. Police attended and located the applicant on the nature strip. As police approached, the applicant ran away and was seen throwing a multi-edged knife and small black case to the ground.
A short time later, police located the applicant attempting to dispose of a small Ziploc bag containing white powder. Police searched the applicant, and located three zip lock bags containing cocaine, benzodiazepine and five unknown tablets. Police also located a butterfly knife and $125 in cash in the applicant’s bag.
The applicant was arrested and conveyed to Glen Waverley Police Station for interview. He was deemed unfit for interview and remanded in custody. As I have already noted, his subsequent application for bail was refused and his earlier bail was revoked.
The applicable legislation
The applicant is required to show a compelling reason that justifies a grant of bail pursuant to s 4AA(3) of the Act, as he is accused of a Schedule 2 offence,[1] possession of a drug of dependence. It follows that bail must be refused unless the Court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[2] In considering whether or not a compelling reason exists the Court is obliged to take into account all of the relevant surrounding circumstances including, but not limited to, those set out in s 3AAA of the Act.[3]
[1]Namely an offence against the Act (sch 2, item 30).
[2]Ibid ss 4AA(3), 4C(1A)-(2).
[3]Ibid s 4C(3).
Compelling Reasons
I am satisfied that a compelling reason exists, on the basis of the high likelihood of the applicant serving a longer time in custody than he would be likely to receive by way of sentence.
Unacceptable Risk
I am then obliged to apply the unacceptable risk test.[4] Bail must be refused if the respondent satisfies the Court that, if released on bail, the applicant poses a risk of engaging in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[5] In determining whether a risk is unacceptable the Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[6]
[4]Ibid ss 4C(4), 4D(1)(b).
[5]Ibid ss 4D(2), 4E(2).
[6]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 29 years old.
He commenced using drugs at the age of 14, reporting use of methylamphetamine, cocaine and amphetamines prior to his remand. The applicant was able to achieve a recent period of abstinence, however relapsed six months prior to his remand following the death of a friend.
The applicant presents with a number of risk indicators, one of which may include the risk of an acquired brain injury, which in the CISP report that I received indicated that the applicant would be prepared to undertake an appropriate neuropsychological assessment. Because of the way these matters have proceeded, that assessment will now not take place until these matters have been disposed of, in a way that I will deal with shortly.
Nonetheless, it would seem desirable that in the future that he have such an assessment done so that his medical condition can be properly assessed.
Criminal history
The applicant has relevant criminal history spanning 2011 to 2020, including the following:
· November 2016: the applicant was sentenced on the basis of a consolidation of weapon, property, drug and driving offences to a community correction order (‘CCO’) for a period of 12 months. The order included conditions to undertake 80 hours of community work, supervision, drug and alcohol treatment and offending behaviour programs.
· June 2018: the applicant was sentenced to six months’ imprisonment for a charge of affray, and a $1,500 fine with conviction for a consolidation of bail, driving, drug and weapon offences. The applicant was further sentenced to a $1,200 fine with conviction for contravening the CCO imposed in November 2016.
· December 2020: the applicant was sentenced to an aggregate 15 months’ imprisonment, with a non-parole period of nine months, and a $400 fine for a consolidation of offences against the person, weapons, property, bail and drug offences.
The applicant’s contentions
It is contended on behalf of the applicant that in relation to how things have progressed, as I have already indicated, the applicant has agreed to plead guilty to the Lonie matter.
I was informed by his counsel, Ms Kaddeche this morning, that the other matters have now resolved and they have resolved by the withdrawal of all the alleged traffic offences and the removal from the summary of the matters alleging apparent tampering with a motor vehicle. Although, I do not think he had been charged with that. But, nonetheless, it was a matter that had been included in the police summary.
It was properly conceded by Mr Watt, who appeared on behalf of the informant, that the charge involving, at the moment expressed as ‘yellow tablets’, would have to be sorted out in relation to whatever substance might be contained in those tablets. But, they are probably not matters of great consequence, in any event. So, there had been an earlier argument that argued that the traffic matters were weak, which is no longer needing to be addressed.
That will simply leave the drug matters and the possession of prohibited weapon, namely, a butterfly knife, and a controlled weapon, being an edged weapon, now to be dealt with in relation to the Sidari matters.
The other matters to note, and really, the other matters relied on in support of bail were:
· the availability of CISP;
· the stable and supportive accommodation at home, although it should be noted that he had been living at the address at the time he committed these offences; and
· now, that the matters have resolved, the high likelihood that he would serve a term on remand greater than any sentence he was likely to receive.
Of the matters generally to be taken into account, the applicant was on bail on the Lonie matters at the time he committed the second group of offences. His history of bail would be regarded, generally, as less than satisfactory. He did fail to keep the community corrections order, which he had been placed on.
I have already made mention of the family support matter, which I regard as important, and I will come back to in a moment. This included an offer by his mother to provide a surety of $2,000.
And then, again, as I have already mentioned, reliance is placed upon a favourable CISP report.
Although conditions have improved somewhat, the applicant relies upon the difficulties that are going to remain in custody during the continuing COVID-19 pandemic. That will simply be ongoing, but is a matter to be taken into account.
It was submitted ultimately that although it was reasonable to assume that the applicant was a risk, he could be made a not unacceptable risk by the virtue of appropriate conditions, including residence curfew, engagement with CISP and other orders relating to drugs of dependence.
And it was also suggested by those representing him, that I should impose a condition that he not drive a motor vehicle, and I intend doing so.
The respondent’s contentions
In reality, the opposition of the informant, which given the history of the applicant was entirely understandable, was put on the basis that compelling reasons could not be shown, and that there was an unacceptable risk. And the unacceptable risk, in particular, arose out of Charge 1, in relation to the Sidari matters. That is, possession of 7.8 grams of cocaine, which was a reasonably significant amount, and which might lead to an additional term of imprisonment.
Mr Watt, frankly and properly conceded that although you could not eliminate the possibility of a further sentence, there remained a possibility that no further custodial sentence might be imposed.
The informant had expressed concern about the stability of the applicant's accommodation, based principally on the basis that he resided at that address over a relatively long period of time and had yet continued to offend.
As to the question of endangering the safety and welfare of any person, the informant relied upon the fact that both of these sets of offending involved the possession of either prohibited or controlled weapons and in that sense, might reasonably be taken to represent a risk to the safety and welfare of persons.
It was further submitted that if you looked at the applicant's history, you did not need to go any further than to appreciate what the risk of committing further offences was.
I have reached the conclusion that with the imposition of appropriate conditions, the applicant can be rendered a not unacceptable risk. This will be bail over a short period of time now because of the way these matters appear to have resolved.
The applicant does need to understand how critical it is that he keep this bail and all of the conditions in the approximately three weeks that he will be on bail prior to these matters ultimately being resolved.
Ruling
The Court is satisfied that compelling reasons exist that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk, for the reasons announced this day.
Ms Marry Jane Costales gave the Court an undertaking to report any breach of bail or bail conditions to the Informant.
The applicant will be admitted to bail on his own undertaking and on the following conditions:
a) He attend the Magistrates Court of Victoria at Ringwood on 10 January 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
b) He attend the Magistrates Court of Victoria at Frankston on 12 January 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
c) He reside at [redacted] Wheelers Hill in Victoria, and not change that address without the leave of the Court.
d) He remain at those premises between the hours of 9pm and 6am each day for the duration of bail except when in the company of another family member.
e) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
f) He report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Glen Waverly, or his or her nominee, between the hours of 6:00am and 9:00pm.
g) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
h) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
i) He engage with The Court Integrated Services Program (CISP) and obey all lawful directions of CISP and undertake any treatment directed by them and attend any appointment arranged by them or in conjunction with them.
j) He not drive a motor vehicle.
k) He not contact, directly or indirectly, any witness for the prosecution, except the informant or his mother.
l) He not leave the State of Victoria.
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