Re SH
[2025] VSC 356
•13 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0097
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by SH | |
| between | |
| SH | Applicant |
| and | |
| VICTORIA POLICE | Respondent |
---
JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2025 |
DATE OF RULING: | 13 June 2025 |
CASE MAY BE CITED AS: | Re SH |
MEDIUM NEUTRAL CITATION: | [2025] VSC 356 |
---
CRIMINAL LAW – Bail – Charges of theft from motor vehicle, fail to answer bail, aggravated burglary, theft of motor vehicle, theft, attempted aggravated burglary, obtain property by deception, possess methylamphetamine, possess drug of dependence, deal with property suspected of being proceeds of crime – Additional charges of attempted criminal damage by fire (arson), burglary, theft and theft of motor vehicle – Compelling reason – Unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3AAA, 3A, 4E – Re Singh [2025] VSC 266 – Re Boland [2024] VSC 85.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Portelli | James Dowsley & Associates |
| For the Respondent | Mr P McKimmie | Victoria Police |
HER HONOUR:
Introduction
The applicant, a 26 year-old man, applies for bail[1] in respect of the following charges.[2]
[1]The grounds on which the application is made (including any applicable considerations under s 3A of the Bail Act 1977 (Vic) (‘the Act’) are: 1) availability of stable address; and 2) availability of bail support services: Notice of Intention to Make an Application for Bail dated 21 May 2025. A further application for bail in respect of the Informant Gladman matters (discussed below) was filed on 13 June 2025.
[2]The table below is taken from the Affidavit in Support, but has been amended to reflect the new ‘next listed’ dates.
At the bail application hearing on 11 June, the respondent tendered an email[3] summarising the indicative status of resolution (or non-resolution) of various outstanding matters against the applicant, and this has been reflected in this ruling by shading those matters where it has been agreed that the applicant will plead guilty and/or the prosecution will withdraw certain charges.
[3]Which became exhibit R5.
| Details | Charges and dates of the alleged offending | Bail status | Case number |
| Informant LEACH Charge date: 19 April 2024 Remand date: Next listed: Dandenong Magistrates’ Court on 1 July 2025 for plea guilty | 1. Theft from Motor Vehicle on 18 April 2024; and 2. [Fail to answer bail on 14 May 2024]; and 3. [Fail to answer bail on 19 June 2024][4] | On remand | Q10872761 |
| Informant BUSBY[5] Charge date: 19 April 2024 Remand date: Next listed: Dandenong Magistrates’ Court on 1 July 2025 for plea guilty | 1. Aggravated burglary person present on 19 April 2024; and 2. Theft of Motor Vehicle on 19 April 2024; and 3. Theft of Motor Vehicle on 19 April 2024; and 4. Theft on 19 April 2024; and 5. Attempted aggravated burglary on 19 April 2024; and 6. Attempted aggravated burglary on 19 April 2024; and 7. Attempted aggravated burglary on 19 April 2024; and 8. Obtain property by deception on 19 April 2024; and 9. Obtain property by deception on 19 April 2024 | On remand | Q10882190 |
| Informant LEACH Charge date: Remand date: Next listed: Dandenong Magistrates’ Court on 1 July 2025 for plea guilty | 1. Possess Methyl Amphetamine on 22 May 2024; and 2. Possess other Drug of Dependence on 22 May 2024; and 3. Deal property suspected proceeds of crime on 22 May 2024; and 4. [Fail to answer bail on 17 June 2024][6] | On remand | Q11111761 |
[4]Table 1 of the Affidavit in Support (p 3) only included one charge of theft from motor vehicle. However, the copies of previous bail refusal and/or bail revocation extracts exhibited as Exhibit MH-6 to the Affidavit in Support indicated that there were also two charges of fail to answer bail comprising this matter (in respect of which bail was refused by Magistrate Stewart on 20 May 2025). This was raised with the parties for discussion at the bail application hearing on 11 June 2025.
[5]The applicant will plead guilty to charges 1–4 and 7–9, and the prosecution will withdraw charges 5 and 6: refer exhibit R5.
[6]During the bail application hearing, it was clarified that an additional remand charge of fail to answer bail, which was not adverted to in the Affidavits in Support or Response, also comprised part of this matter. A review of the bundle of Magistrates Court orders tendered by the respondent as exhibit R3 confirmed this was indeed the case.
The applicant is also on bail for various sets of charges where the Informants are McLennan and Garrett,[7] and is on summons for various sets of charges where the Informants are Ross, Hamilton-Smith and Kimber. Prior to the hearing of the application on 11 June, it was understood that the applicant was similarly on bail for a set of charges where the Informant is Gladman. However, during the hearing it transpired that – despite the fact the applicant was, by then, in custody – a bench warrant dated 28 May 2025 had been issued and bail had subsequently been revoked in the Informant Gladman matter. Accordingly, the applicant also needed to seek bail before this Court in respect of the Informant Gladman brief. He has no other outstanding matters.
[7]See, eg, Affidavit in Support, Exhibit MH-4.
The following chronology of relevant procedural history was included in the applicant’s Affidavit in Support.[8] The applicant has been on remand since 2 October 2024:[9]
[8]See also ‘Procedural History for the Matters for which the Applicant Seeks Bail’ in the Affidavit in Response, [34]–[44].
[9]Respondent’s Written Submissions, [37].
Chronology of relevant procedural history 3 October 2024 Applicant charged and remanded into custody (informant Garrett committal court proceedings) 3 October 2024 Bail revoked and remanded into custody on matters:
· Informant Leach - Q11111761
· Informant Busby - Q10882190
· Informant Leach - Q10872761
8 April 2025 Granted bail in the County Court on the matter of Informant Garrett. 9 April 2025 Bail application at Frankston Magistrates’ Court before Her Honour Stewart on the summary offences for which he is remanded (Leach, Busby, Leach) 16 April 2025 Bail refused at Frankston Magistrates’ Court before Her Honour Stewart on the summary offences for which he is remanded (Leach, Busby, and Leach) due to:
· Failure to show compelling reasons
· Unacceptable risk that the applicant would endanger the safety or welfare of any person
20 May 2025 Application for bail filed in the Supreme Court.
At the bail application hearing on 11 June 2025, the following documents were tendered:
(a) For the applicant:
(i) Affidavit in Support;
(ii) Outline of Submissions;
(iii) CISP Report dated 31 March 2025;
(iv) County Court orders dated 8 April 2025 (Judge Karapanagiotidis);
(v) Letter offering employment dated 7 April 2025; and
(vi) Documents placed before Judge Karapanagiotidis regarding outstanding charges.
(b) For the respondent:
(vii) Affidavit in Response;
(viii) Written submissions;
(ix)Bundle of Magistrates Court orders;
(x) Email from Dandenong prosecutions about proposed resolution of several outstanding charges;[10] and
(xi)Magistrates Court document listing outstanding matters concerning the applicant.
[10]Mr McKimmie clarified at the bail application hearing that this was an email from the officer in charge of Dandenong prosecutions ‘which largely addresses the resolution of all matters before the Magistrates’ Court’: T 3.
Legislative framework
The guiding principles of the Bail Act1977 (Vic) (‘the Act’) include parliament’s recognition of the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime, as well as the importance of taking into account the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in decision making; and promoting public understanding of bail practices and procedures.[11]
[11]The Act, s 1B.
It was common ground between the parties that because the applicant has been charged with a Schedule 2 offence (namely aggravated burglary), the applicant is required to show a compelling reason justifying the grant of bail, taking into account the surrounding circumstances including those set out in s 3AAA of the Act.[12]
[12]Refer ss 4AA, 4C of the Act.
In Re Singh,[13] Tinney J very recently said the following:
[13][2025] VSC 266, [9].
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:[14]
[14][2019] VSC 214.
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.[15]
[15]Ibid [43] (citations omitted).
If a compelling reason is shown by the applicant, the Court must then apply the unacceptable risk test. Bail must be refused if the respondent satisfies the Court that there is an unacceptable risk that the applicant would engage in any of the conduct listed in s 4E(1)(a) of the Act.[16] In considering whether a risk is an unacceptable risk, the Court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may mitigate risk so that it is not an unacceptable risk.
[16]Section 4E(1) of the Act was amended in 2024 to provide that an unacceptable risk includes that the accused, if released on bail, would (inter alia) drive dangerously; or commit an aggravated burglary; or commit an armed robbery; or commit a carjacking; or commit a home invasion.
In Re Boland,[17] Fox J said:
A risk is ‘unacceptable’ if it cannot be tolerated; a real risk of something occurring may still be acceptable when regard is had to all the circumstances of the case. It is relevant to consider both the likelihood of the occurrence of the risk, and the magnitude of the consequences, should the risk be realised.[18]
[17][2024] VSC 85.
[18]Ibid [53] (citations omitted).
The respondent opposes bail on the dual basis that the applicant has not discharged his burden of satisfying the Court as to the existence of a compelling reason justifying the grant of bail, and also that he is an unacceptable risk of committing a Schedule 1 or Schedule 2 offence, otherwise endangering the safety or welfare of any person (whether by committing an offence that has that effect or by any other means), and/or failing to surrender into custody in accordance with the conditions of bail.
Summary of outstanding matters
The applicant is on bail for the following charges:[19]
[19]Affidavit in Support, [9]. Again, this table has been amended to reflect the new ‘next listed’ dates.
| Details | Charges and dates of the alleged offending | Bail status | Case number |
| Informant McLennan[20] Charge date: 25 August 2024 Next listed: Dandenong Magistrates’ Court on 1 July 2025 for plea guilty | 1. Theft of Motor Vehicle on 25 August 2024 2. State False Name when Requested on 25 August 2024 | On bail Bail granted at police station on 25 August 2024 | Q11974445 |
| Informant Gladman Charge date: Next listed: | 1. Attempted Criminal Damage by fire (arson) on 21 May 2024 2. Burglary on 21 May 2024 3. Theft on 18 May 2024 4. [Theft of motor vehicle][22] | On bail Bail granted at police station on 25 August 2024 | Q11814505 |
| Informant Garrett[23] Charge date: | 1. Aggravated home invasion on 17 June 2024 2. Armed robbery on 17 June 2024 3. False imprisonment on 17 June 2024 4. Unlawful assault on 17 June 2024 5. Theft on 17 June 2024 6. Theft of Motor Vehicle on 17 June 2024 7. Theft of Motor Vehicle on 17 June 2024 8. Theft of Motor Vehicle on 17 June 2024 9. Theft of Motor Vehicle on 17 June 2024 | On bail Bail granted in the County Court by her Honour Judge Karapanagiotidis on 8 April 2025[24] | Q11814505 |
[20]The applicant will plead guilty to charge 2, and the prosecution will withdraw charge 1: refer exhibit R5.
[21]At the bail application hearing, Mr McKimmie indicated that exhibit R5 should indicate this matter is listed for contest mention: T 4.
[22]During the bail application hearing, it was clarified that a fourth charge of theft of motor vehicle comprises the Informant Gladman matter. A remand warrant dated 28 May 2025 was provided by the Court’s Criminal Registry evidencing same.
[23]It was clarified by Mr McKimmie at the bail application hearing that paragraph [122] of the Informant’s Report (concerning medical treatment of the victim of the home invasion in this matter) is no longer relied on by the prosecution for the purposes of that matter. It was not suggested the victim was injured in connection with the incident, and there is no assault or injury-type charge that will be included as part of the indictment: T 5.
[24]Reasons for her Honour’s decision and/or the accompanying transcript were not able to be obtained by the applicant’s lawyers: T 7.
It was subsequently clarified at the hearing that the applicant would also need to seek bail on the Informant Gladman charges due to the fact that a bench warrant was issued for him on those charges in November 2024 when he was in fact in custody.[25]
[25]See generally the discussion at T 36–43. Mr Portelli referred the Court to paragraph [97] of the Informant’s Report (exhibited to the Affidavit in Response) in this regard.
The applicant is on summons for the following charges:[26]
[26]Affidavit in Support, [10]. Again, this table has been amended to reflect the new ‘next listed’ dates.
| Details | Charges and dates of the alleged offending | Case number |
| Informant Ross[27] Charge date: 2 October 2024 Next listed: Dandenong Magistrates’ Court on 1 July 2025 for plea guilty | 1. Theft of Motor Vehicle on 2 October 2024 2. Possess drug of dependence on 2 October 2024 3. Going equipped to steal/cheat on 2 October 2024 | Q12796990 |
| Informant Hamilton-Smith[28] Charge date: Next listed: | 1. Theft of Motor Vehicle on 12 September 2024 2. Theft of Motor Vehicle on 15 September 2024 3. Handle/receive/retention stolen goods on 15 September 2024 4. Fraudulently use registration label/plate on 15 September 2024 5. Unlicensed driving on 15 September 2024 6. Theft on 16 September 2024 7. Fraudulently use registration label/plate on 16 September 2024 8. Unlicensed driving on 16 September 2024 9. Theft of Motor Vehicle on 18 September 2024 10. State false name when requested on 20 September 2024 11. Going equipped to steal/cheat on 20 September 2024 | Q12139786 |
| Informant Kimber Charge date: | 1. Theft on 13 July 2024 2. Unlawful assault on 13 July 2024 3. Throw a missile to the injury of another person on 13 July 2024 | Q12134416 (Please note there is a duplicate listing of this matter on EFAS Q12338216) |
[27]Mr McKimmie was unable to establish the status of this matter: T 22.
[28]The prosecution has agreed that if the applicant pleads guilty to charges 2–11, they will withdraw charge 1 (but charge 9 remains in issue): refer exhibit R5.
Criminal and bail history
The applicant has an extensive criminal history dating back to 2013, which includes charges of contravening a community correction order, commit indictable offence whilst on bail and robbery. He was most recently dealt with in the Melbourne Magistrates’ Court for one charge of criminal damage by fire (arson), in respect of which a term of 6 months’ imprisonment was imposed.
The applicant’s most lengthy period in custody was imposed in the County Court on 15 February 2019, being a period of over six years’ imprisonment. At the hearing, the applicant himself clarified that he was pretty sure he went into custody in July 2018, and was released on 14 February 2024. He spent time in the Melbourne Metropolitan Remand Centre, Port Phillip Prison, Marngoneet and Ravenhall.[29]
[29]T 10–11.
There are no family violence intervention orders, family violence safety notices, recognised domestic violence orders or personal safety intervention orders in force against the applicant.
Summary of factual basis for Informants Leach and Busby matters
The informants’ statements exhibited to the Affidavit in Support summarise the factual basis for each matter in respect of which bail is now sought.[30]
[30]Refer generally to the Affidavit in Support, Exhibit MH-1. Co-accused (WS) charges for the Informants Leach (Q10872761) and Busby (Q10882190) matters were withdrawn on 10 October 2024: Affidavit in Response, [14].
Informant Leach (Q10872761)
On 18 April 2024 at approximately 8:44pm, the applicant is alleged to have attended an address in Seaford and stolen the front and rear registration plates from a vehicle parked outside. The entire incident was captured on CCTV. The applicant was arrested on 19 April 2024 at approximately 2:00pm in relation to a separate matter, and was photographed wearing the same distinctive jumper worn during the offending at Seaford the day before.
Informant Busby (Q10882190)
This alleged offending comprises four incidents in Toorak and Camberwell, whereby the applicant is alleged to have committed or attempted to commit aggravated burglaries at several properties in Toorak in the early hours of 19 April 2024. Two motor vehicles and debit/credit cards were stolen from the first address. The applicant was arrested the same day shortly after 1:55pm. The circumstances of aggravation relate to persons being present in the subject premises at the time.
Informant Leach (Q11111761)
On 22 May 2024, police attended an address in Langwarrin in relation to a separate investigation. The accused was located inside and subsequently searched by police, who located a Ziploc bag containing methylamphetamine and a plastic container containing 1,4 butanediol.
Informant Gladman (Q11814505)
In brief terms, the Informant Gladman matter involves allegations that the application and three co-accused were recruited by an unknown criminal syndicate to perform an arson for financial gain. They were thwarted by the quick arrival of police. The applicant is alleged to have stolen unleaded petrol from an Ampol service station in the evening of 18 May 2024, before attempting to commit an arson with others at the premises of Pavtek Performance in Epping in the early hours of 19 May. When disturbed by police, the applicant and two of his co-offenders fled in a Toyota that was observed travelling at speed with no headlights on.
Personal and surrounding circumstances
The applicant’s personal and surrounding circumstances are summarised in the Affidavit in Support.[31]
[31]At [15].
The Affidavit in Response outlined the respondent’s position regarding matters raised in support of the application for bail.[32]
[32]At Exhibit AS-1, [160]–[163].
Availability of CISP
First CISP Report
The applicant was assessed for suitability for the Court Integrated Services Program (‘CISP’) on 24 March 2025. This represented his first referral to CISP across any jurisdiction.[33] He was found suitable and recommended for case management/community referral. Proposed dates for initial appointments on 4 April at 1:45pm and 2:30pm have now lapsed.[34]
[33]Applicant’s Written Submissions, [12].
[34]Mr Portell clarified at the bail application hearing that these appointments would need to be rescheduled. Refer to the second CISP report, discussed further below, in this regard.
The CISP Report noted that there were some discrepancies between what the applicant reported during his CISP assessment on 24 March 2025, as compared to an earlier psychological report authored by clinical psychologist Guy Coffey dated 23 January 2019.
The applicant’s family and criminal justice backgrounds were traced by CISP Report author Bojana Mladenovic. Mr Coffey had reported being told that the applicant had been exposed to family violence and physical abuse, but the applicant denied this when interviewed by Ms Mladenovic. The applicant’s (biological) father, who was an alcoholic and smoked cannabis daily, passed away from alcohol-related illness in 2017. The applicant stated that he had been living with his father at this time and that his father’s death had a significant impact on him. The applicant further stated that his mother has remained a constant support for him, and that he has support from his family, including extended family members on his mother’s side.
The applicant had had contact with the criminal justice system since 2013, receiving both community and custodial dispositions in the youth and adult justice systems. His longest custodial sentence was for a period of over 6 years in the adult system.
The applicant’s Level of Service Risk, Need Sensitivity (‘LS/RNR’) assessment determined that he is a very high risk of reoffending.[35] In terms of his presenting risks and needs, the applicant reported commencing alcohol and other drug use in his early adolescence.[36] He had reported difficulties since primary school and was diagnosed with ADHD, conduct disorder and stimulant and cannabis disorder whilst in Parkville Youth Justice Centre at the age of 15. He had commenced opiate replacement therapy (‘ORT’) in custody, and stated that he had not been on ORT in the community but was wanting to continue with this in the community should he be bailed. If the applicant is bailed and placed on CISP, then the program will assist him in locating a prescribing GP to continue with this medication. Mr Coffey’s report indicated that although the applicant had not met the criteria for a diagnosis of an intellectual disability, many of his cognitive domains fell below average. He has not had any recent psychological or neuropsychological assessments.
[35]The general risk/need subcomponents of Criminal History, Companions and Antisocial Pattern were each rated as ‘Very High’ on his LS/RNR assessment.
[36]He reported commencing smoking cigarettes at the age of 12–13, cannabis at 13, methamphetamine (ice) at 15, and heroin at 18, as well as Valium.
The applicant has completed Alcohol and Other Drug (‘AOD’) programs whilst on remand, and reported that he felt he has learned practical strategies during these programs. He identified that he would need assistance to address his substance use in the community and was willing to engage in AOD counselling. Should he be bailed and placed on CISP, he will be referred to a CISP in-house Senior AOD Counsellor for assessment and treatment. He was reported to have demonstrated some good insight regarding the need to not have contact with substance-using peers, and reported that he was aware of the potential risk and noted how his time in the community previously went quickly downhill once he commenced contact with such persons. The CISP Report noted that this identified risk factor will remain a focus in both case management appointments and in AOD treatment, which will hopefully assist him to not have contact with these peers.
Second CISP Report
Following the bail application hearing, and in order to inform any potential grant of bail, the Court sought an updated CISP report confirming the applicant’s suitability on 12 June, which was received the same day.
The applicant was again interviewed by Ms Mladenovic, and was again assessed as suitable and recommended for case management/community referral. As the applicant had remained in custody since the original CISP Report dated 31 March, this second report was stated to provide a summary of his presentation, treatment needs and update for County Court CISP appointments, should he be granted bail in this Court. The background, assessment and case formulation matters traced in the second report were essentially unchanged from the first report.
Were the applicant to be granted bail and given the opportunity to engage with CISP, the following proposed initial CISP case management and AOD assessment appointments were proposed. In addition, throughout his CISP episode, referrals for a neuropsychology and psychiatric assessment could be arranged:
(a) An initial CISP case management appointment on 18 June 2025 at 10am in person at the County Court in Melbourne; and
(b) An appointment to commence AOD assessment treatment on 18 June at 10.30am in person at the County Court in Melbourne.
Victims’ views regarding any grant of bail
The respondent attempted to contact the victims of the matters for which the applicant seeks bail, and was able to contact several victims in the Informant Busby matter:
(a) J and M C stated that, if the applicant’s behaviour was escalating, and people’s safety was put at risk, then they would not be supportive of the applicant being granted bail;
(b) JC did not have an opinion as to whether the applicant was granted bail. SD also did not really have an opinion one way or the other as to whether the applicant was granted bail; and
(c) RA was not supportive of the applicant being granted bail.
Evidence
Ms WC
The applicant’s mother, WC, was called to give evidence at the bail application hearing on 11 June:
In examination-in-chief:
(a) Ms WC said she gave evidence at the earlier bail application on 2 April 2025. Ms WC clarified that while her son was in custody over the last 250-odd days she has remained in contact with him. She speaks to her son about once a week (but that he tries to call more). He updates her on his progress in prison. She is aware he is receiving drug treatment in custody and it is changing his mindset. Last time he got released from prison none of that drug treatment was available and ‘they were giving us the runaround’.[37] He was not on parole, but was just released. There were no supports available, ‘not even the doctors for him to get his medication’.[38] The applicant’s grandmother died in 2022 and it was hard for Ms WC to support her son as she had to spend a lot of time going to Ferntree Gully to assist with his grandfather and also taking another son to various sporting commitments. It is different now as his brother L is doing a carpentry apprenticeship and she would have more time.
[37]T 24.
[38]T 24.
(b) The applicant has a changed state of mind and is not so angry now, and listens to her now when she explains things to him. He has told Ms WC that he wants to stop taking drugs, whereas before, he never admitted he needs to stop.
(c) He definitely wants to work and once he gets a job ‘they just love him’. There is a job available through his girlfriend’s father, Mr Y. Ms WC clarified that the applicant had previously worked for Mr Y for a couple of days before going back to prison last year.
(d) Ms WC clarified that the applicant, if granted bail, would have his own bedroom in the family home, whereas last time he had to sleep in the lounge. An older half-sister has now moved out. She also clarified her understanding of curfew conditions, and confirmed that she would be happy to monitor the applicant’s compliance with any curfew. Ms WC’s husband, who also lives in the family home, is a foreman and works ‘on the road’ full-time.
(e) Regarding CISP, Ms WC would be supportive of urine screens of the applicant, as well as a daily reporting condition.
(f) Ms WC emphasised that she had the time to put into the applicant now, and that she believed CISP support would help.
(g) Ms WC said that the applicant talks differently, and that he says, ‘ I want to get out, make you proud.’ He actually listens to her now.
(h) She was prepared to help ensure he follows the rules if bailed and would get on the phone to police if he didn’t.
(i) Asked by the Court for clarification as to the applicant’s Aboriginality, which was adverted to in the documents placed before the Court on this application, Ms WC said that although neither she nor the applicant’s biological father are Aboriginal, there are family on his biological father’s side who are married to Aboriginal persons (the applicant later clarified that his father helped raise some Aboriginal children).[39]
[39]The applicant was asked, and responded, at the hearing (T 35):
No, no, it was my – my dad's mother (indistinct). He maybe Aboriginal and they have kids. My dad used to look after the kids. So that's – like, it's sort of like that.
In cross-examination:
(a) Ms WC said that she did not have the same caring responsibilities now in Ferntree Gully as other family have come from Queensland to help.
(b) Asked for her understanding about the applicant’s previous curfew conditions, she said he needed to be home by 9 or 10:00pm and police would come and check, but once the applicant started going out and not coming home she gave up. She had ‘no energy’ to be on the applicant’s case about his compliance with curfew at that time.[40]
[40]‘So whenever the police would come, I would say, “No, I haven’t seen him. Haven’t seen him all week” or whatever it was’: T 33.
Submissions
Applicant
The applicant relied on his written submissions in support of bail. In answer to questions from the Court as to what factors persuaded the County Court to grant bail to the applicant on the Informant Garrett matters, the following matters were referred to:
(a) CISP support. Mr Portelli referred to the earlier favourable CISP assessment and said he had been in touch with CISP and the applicant would need to be reassessed and his appointments rescheduled (I interpolate that, as indicated elsewhere in this ruling, that has since occurred). However, Mr Portelli said regarding this, that it is helpful that the applicant is on an opiate substitute (Buvidal) in custody and is not experiencing cravings. Mr Portelli noted that this represents the applicant’s first referral to CISP across any jurisdiction. In addition, as part of the bail support services, Mr SH will have access to case management and AOD treatment. The CISP report refers to emerging insight into the consequences of associating with negative peers. The applicant is in a better position to have CISP support now and wants to get back into work and has been in regular contact with his mother. Further, her Honour was aware of the status of the Magistrates Court matters which the applicant was on remand for, and her Honour was advised of the bail application listed on 9 April 2025 at Frankston.[41]
[41]Refer generally T 35 and exhibit A6.
(b) The applicant has work available from his girlfriend’s father, Mr Y.[42]
[42]Mr Portelli clarified that this would entail working a few days a week (at least initially) as a handyman on different building sites. The onus would be on the applicant to arrange transport to different jobs sites, which his mother might be able to assist him with early on.
(c) YK is engaged in a relationship of sorts with the applicant, and they have known each other for 5 years and were dating even though he is in custody. Mr Portelli submitted that this is a source of motivation for the applicant, since she had made it clear to him that she would not ‘stick around’ if the applicant continued to offend and does not get his life on track. She works in hospitality and is 23 years old.
(d) Regarding the Informant Garrett matter before the County Court (which also involves several co-accused), the issue is identification, in circumstances where the prosecution rely principally on CCTV footage, and her Honour accepted there are triable issues and it was not a strong or overwhelming prosecution case. Mr Portelli submitted that this was not a case where there was other surrounding evidence, such as forensics, tying the applicant to the home invasion, that the items stolen in connection with that home invasion have not been located, and that there is not much evidence to support the identification of the applicant. There was phone tower evidence, but the phone was registered to another person, and there was no current suggestion that this other person had any connection to the applicant. The matter had been to case conference but had not resolved and there is likely to be significant delay until trial. The co-accused, U from the Informant Garrett matter was also granted bail.
(e) The applicant had been on remand for 252 days.
(f) The applicant has a stable address with his mother, siblings and stepfather and his mother testified before the County Court that she would drive him to CISP appointments and assist him. She normally does seasonal work but will not be resuming that until August, so she will have more time to assist him and one of the other sons has now finished Year 12. The other half siblings are aged 28, 19 and 10. The applicant’s mother wants him to be supported and treated in the community.
(g) The applicant is open to more intensive drug treatment and this could occur by way of having his outstanding Magistrates Court matters resolved and potentially referred to Drug Court.[43]
(h) As indicated, the applicant will experience significant delay before the Informant Garrett trial can be heard.
(i) The applicant has remained in custody since his arrest on 2 October 2024.
[43]Mr McKimmie was asked for, and confirmed, his understanding that an application will be made to have all of the applicant’s Magistrates Court matters referred to the Drug Court: T 22.
In addition to the matters relied on before the County Court in the more serious Informant Garrett alleged offending, the Court enquired as to the applicant’s use of his time in custody on remand since October 2024. Mr Portelli referred to the implementation of opiate substitution treatment and the fact that the applicant’s time in custody had been without incident. The applicant himself spoke directly to the Court and clarified that he had obtained a job straight away in the kitchen and then swapped that role for a job working in the unit handing out meals and education packs. He also clarified that he had seen a psychologist and had received five certificates for drug & alcohol courses since last being remanded in October 2024. He said that he had done a high-intensity violence course during his previous time in prison.
Respondent
The respondent was able to rely on a detailed and comprehensive report put forward by Informant Busby which was of assistance to this Court. The respondent submitted that the fact the applicant was granted bail in the County Court may appear to go some way to establishing compelling circumstances, but actually that bail application can be distinguished from the present application. Factors her Honour Judge Karapanagiotidis considered in the County Court matter were the likely delay before that matter could be heard and the triable issues in that matter. This is in contrast the matters before this Court (which have resolved to an agreement to enter pleas of guilty to various charges and are next listed in the Dandenong Magistrates’ Court on 1 July 2025). The respondent submitted that the Court should give limited weight to the fact that Judge Karapanagiotidis granted bail on those other more serious charges.
Regarding the prospect that the matters set down for pleas of guilty on 1 July could be referred to Drug Court, and/or having any sentence served by way of a drug and alcohol treatment order, that was still just an idea in its infancy at this stage. There is no material before this Court regarding any waitlisting and the Court would need to be satisfied that the combined offending did not merit more than a two year sentence, pursuant to section 18ZD(1A)(a) of the Sentencing Act 1991.
To be eligible for a drug and alcohol treatment order in Drug Court, a person must meet eligibility requirements and there has to be a screening hearing and a sentencing hearing. While the respondent conceded that a Drug Court outcome would be likely to benefit the community, such an outcome was far from guaranteed.
Further, while the respondent conceded that Ms WC was an impressive witness, and genuinely wants to support her son, it must be recalled that the applicant was residing with her when much of the previous offending was going on and during hours covered by curfew conditions. This should give rise to concern regarding what is proposed by the applicant. There was ongoing and serious offending some of which was high-harm offending.[44] On the material before the Court, the applicant has disregarded bail conditions in the past and failed to answer bail in the past. CISP rates him at a very high risk of re-offending. In written submissions the respondent argued that residential aggravated burglary is an inherently serious offence and that if found guilty of the aggravated burglary charge, the applicant is likely to be sentenced to a term of imprisonment which exceeds the likely time he is to be on remand.
[44]The respondent also referred to the use of weapons, although none of the matters the applicant is seeking bail on involved the use of weapons (although there is reference to the applicant cutting holes in flyscreen/security doors). In the Informant Garrett matter a co-offender was allegedly armed.
The respondent also emphasised the importance of recent changes to the Act to underline the question of when risk is unacceptable and otherwise largely relied upon their written submissions to submit that the applicant has not shown compelling reasons, and even if he has, he remains an unacceptable risk of committing Schedule 1 or Schedule 2 offences or failing to answer bail and the proposed conditions are insufficient to ameliorate that risk.
Applicant (reply)
Mr Portelli submitted that while Drug Court is not guaranteed it would clearly be of benefit to him if the applicant is able to satisfy the eligibility criteria, and it would also benefit the community.
Analysis and conclusion
Regarding compelling reasons, I am satisfied the applicant meets this test based on all the surrounding circumstances in combination, including the factors referred to in s 3AAA of the Act. I have reached this conclusion despite the applicant’s bad criminal history and past incidences of failure to appear on bail and the respondent’s opposition to bail.
Whilst delay until disposition does not specifically arise regarding the Informants’ Leach and Busby matters upon which bail is sought, and the Informant Gladman charges are still apparently at an early stage, it was relevant to his County Court bail matter and was relevant to the stringent conditions imposed in that matter. The fact of potentially lengthy bail under strict conditions imposed by the County Court is relevant to my assessment of the applicant’s prospects of maintaining similar conditions on the less serious alleged offending contained in the Leach and Busby charges. I am not persuaded by the respondent that on the Leach and Busby charges referral to Drug Court would not be open or that any sentence for those matters would necessarily exceed any future period on remand. Regarding the Gladman charges, there is presently no information before me as to whether they will be contested and as they are at an early stage there may be some delay until finalisation.
In considering the applicant’s circumstances after 9 months on remand, it is my impression that the applicant may be at the crossroads of a precarious path towards rehabilitation at the age of 26. His youth offending may be partially explained by his challenging personal circumstances in that period and childhood disorders that were insufficiently treated or diagnosed early in life. He currently has the support of his mother, a future employer, a long-term girlfriend and most likely CISP. If he can manage to enter the Drug Court program as has been proposed, he would be under a very stringent regime. Even without the Drug Court program, it is likely that bail conditions of the kind set by Judge Karapanagiotidis would keep him under scrutiny and supervision so long as CISP is able to supervise and support him as an adjunct to family supervision and support. The initiation of the program for opiate substitution is an important matter that differs from the past occasions that he has been in the community. He is also currently showing insight into the need to keep apart from criminal associates.
I found the applicant’s mother to be an impressive witness, and she has a greater capacity to support and supervise him now that she has fewer other matters to attend to. The offer of immediate employment will be a vital protective factor.
Regarding unacceptable risk, there are factors for and against the applicant. It must be borne in mind that it the respondent who carries the burden of establishing unacceptable risk and that such risk as exists cannot be rendered acceptable through stringent bail conditions.
The respondent has raised the following concerns in answer to the submission that stringent bail conditions would suffice to make the risk acceptable:
(a) The applicant’s lengthy criminal history which includes convictions for serious offences such as armed robbery and carjacking.
(b) The applicant was not able to be contained by his mother after being released from prison in February 2024, and within months is alleged to have engaged in frequent offending with criminal associates including high-harm offending such as aggravated burglaries.
(c) The Drug Court plan for the 1 July matters is still a plan in its infancy and is not a guaranteed outcome.
(d) The relevance of recent changes to the Act.
(e) At least some of the alleged victims oppose bail.
On the other hand, there are several factors that suggest that stringent conditions of bail would render the risk of committing offences or failing to appear acceptable. I note that the recent fail to appear charges arose when the applicant had been released without any post-sentence structured supervision and as such, he soon resumed a criminal lifestyle and was using drugs with similarly minded associates.
I recognise that there is a risk that the applicant could relapse into a criminal lifestyle but if he does do so he is likely to be quickly apprehended and returned to custody. Staying away from criminal associates will be pivotal to his rehabilitation, as recognized by the applicant himself in his discussions with CISP. Having paid employment should assist with the goal of avoiding such associations.
Other factors of importance include:
(a) The applicant is 26 and has recently experienced nine months of continuous custody enabling him to reflect on his situation of being once again behind bars.
(b) Her Honour Judge Karapanagiotidis in the County Court granted bail on the more serious Garrett matter on very stringent bail conditions and bail on that matter is likely to endure for longer than the bail on the Leach and Busby matters which are listed for finalisation on 1 July 2025.
(c) The applicant has the offer of a home and family to go to (mother, stepfather and younger siblings) with his mother offering more intensive assistance and focus on his welfare than has been possible in the past.
(d) The applicant has a long-term girlfriend who is said to be supportive of him getting on the right path.
(e) The applicant’s girlfriend’s father will offer him employment as a labourer working in a bricklaying company and that work is available now and the applicant is keen to work.
(f) Ahead of the applicant’s County Court bail application CISP assessed the applicant as suitable for supervision and support in accessing treatment relevant to his substance abuse issues and mental health. He was again assessed as suitable for CISP engagement in the second report received by the Court on 12 June. It is significant that this is his first chance of CISP engagement.
(g) The applicant completed five D&A courses in custody and is now on an opiate substitute which he plans to continue. I accept the applicant’s submission that this being the applicant’s first-time experience with an opiate substitute is a significant matter which augurs well for his rehabilitation prospects.
(h) The applicant has endured some past adverse experiences with the death of his father and grandmother but is showing an improved attitude to his mother in their recent conversations. The applicant has told his mother he wants to change his ways for the better.
(i) The applicant is willing to seek referral to Drug Court regarding the matters for which he seeks bail.
(j) The applicant has been holding down work on remand and staying out of trouble.
Balancing all these factors, and conscious of this being a potentially significant waypoint in the applicant’s life, after a lengthy period on remand, I am persuaded by the applicant that stringent conditions can render the risk of bail acceptable. The applicant will have a great deal riding on his compliance with these bail conditions and the conditions fixed by the County Court. The restrictions imposed makes his situations very different from his situation of straight release from prison in February 2024. He will want to establish a path towards reforming himself to become eligible for Drug Court, and to put his best foot forward vis-à-vis the Garrett charges and the Gladman charges.
A grant of bail will provide a strong incentive for the applicant to get all available support including following up CISP referrals, finding a GP who can prescribe his opiate substitute and obtaining mental health support to build on the work he has done on remand.
CISP approval, which was received yesterday on 12 June, is a necessary precondition to a grant of bail and a grant of bail by this Court will also require the applicant to comply with conditions of bail fixed by the County Court in the Informant Garrett matter.
Bail will therefore be granted subject to conditions to be discussed with the parties.
---
0