Re SH

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0184

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by SH

---

JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	12 August 2022
CASE MAY BE CITED AS:	Re SH
MEDIUM NEUTRAL CITATION:	[2022] VSC 584

---

CRIMINAL LAW — Application for Bail — Exceptional circumstances not found — Applicant charged with make threat to kill, carry a dangerous item in a public place, obtain property by deception, theft, and commit an indictable offence on bail — Criminal history — Special vulnerability and mental health — Availability of a bail address — Delay — Unacceptable risk — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Moore	Matthew White and Associates
For the Respondent	Mr Gauld	Victoria Police

HIS HONOUR:

Introduction

Simon Hunter (‘the applicant’), seeks bail in relation to five charges: make threat to kill, carry a dangerous item in a public place, obtain property by deception, theft, and commit an indictable offence on bail.

The applicant was charged in custody by informant Finlayson on 6 June 2022. On 8 June 2022, the applicant was refused bail in the Heidelberg Magistrates’ Court.[1]
[1]Bail was refused on the basis that exceptional circumstances were not established, and that there was an unacceptable risk that the applicant would commit an offence on bail, endanger the safety or welfare of any person, and interfere with a witness or otherwise obstruct the course of justice. Magistrate Livingstone was particularly concerned about the risk the applicant posed to the safety of the complainant.

The applicant is currently on summons in relation to four charges of contravening a personal safety intervention order (informants Mutschler and Thomas), and is on bail in relation to five charges:[2] two charges of stalking, two charges of using a postal service in a menacing, harassing or offensive way, and one charge of possessing a weapon (informant Elzink).
[2]Police bail, granted 8 November 2021.

The next listing dates in the Heidelberg Magistrates’ Court are:

(a) 6 September 2022 for contest mention (informants Finlayson, Mutschler and Elzink); and

(b) 19 December 2022 for mention (informant Thomas).

The alleged offending
Background

The applicant and Mr Rehmtulla (the primary complainant) have been next door neighbours since the beginning of 2019.
The applicant has a significant mental health history, which I will discuss below.
Informant Mutschler matter (summons)
On 29 September 2020, an interim personal safety intervention order (‘PSIO’) was granted protecting Mr Rehmtulla from the applicant. The applicant was served with the PSIO on 30 September 2020.
On 9 November 2020, the complainant was gardening. He heard a person on the other side of the fence saying “you gay cunt” multiple times. The complainant looked over the fence and saw the applicant. Five minutes later, the applicant came to the road outside the complainant’s property. The applicant started swearing at the complainant again, saying “you gay cunt, take it up the arse” and “you suck a black cock” multiple times. The complainant was scared the applicant would attack him and called the police.
The interim PSIO was active at the time.
The applicant declined to participate in a police interview. On 18 January 2021, the applicant was charged with contravening a PSIO.[3]
[3]By harassing the protected person.
Informant Thomas matter (summons)
On 20 April 2021, a final PSIO was granted protecting Mr Rehmtulla from the applicant. The applicant was served with the PSIO on 26 April 2021.
On 20 December 2021, the complainant was inside his home reading and listening to music. The applicant approached the boundary fence and gestured towards the complainant’s home. The applicant yelled “Mohammed” and “I’m going to bash your head in you slut”. The complainant called the police.
The PSIO was active at the time.[4]
[4]The PSIO expired 19 April 2022.
The incident was captured by security cameras belonging to the complainant. The applicant made a no comment statement to police. On 8 June 2022, the applicant was charged with three charges of contravening a PSIO.[5]
[5]For stalking the complainant, contacting or communicating with the complainant, and making a serious threat.
Informant Elzink matter (bail)
As background, the complainant Sarah Murdoch is a well-known British-Australian model, actress, and television presenter.
Between 2 March 2021 and 28 May 2021 the applicant sent numerous letters, photos and drawings of an obsessive romantic and sexual nature to Mrs Murdoch. Most of the letters were addressed to the office of Mrs Murdoch’s husband, however one was sent to Mr and Mrs Murdoch’s residential address. The letters were intercepted by Mr and Mrs Murdoch’s executive assistant Kristen Yager, who was unsettled by their content and alerted their security manager.
On 9 June 2021, a search warrant was executed at the applicant’s home where numerous images of Sarah Murdoch and letters to her were found. A modified meat cleaver was also found, giving rise to the weapon charge.
On 18 June 2021, the applicant was charged with two charges of stalking, two charges of using a postal service in a menacing way, and one charge of possessing a controlled weapon.
On 22 June 2021, a search warrant was executed at the Austin Hospital. Medical notes were obtained stating that the applicant was being treated in the community for schizoaffective and polysubstance use disorders at the time of the alleged offending.
On 8 November 2021, the applicant was arrested and interviewed. He stated that he sent the items to Sarah Murdoch because he was in love with her and he hoped she would make contact with him. The applicant was bailed by police the same day.
Informant Finlayson matter (remand)
Obtain property by deception and theft
On 5 April 2022, the complainant Narinder Dhaliwal became aware that her purse was missing and that four transactions totalling $335 had been made from her bank account to PG Adult Services at 5:28pm and 5:58pm.
PG Adult Services is the business identifier of brothel Pussy Galore. CCTV footage was obtained which appears to show the applicant making a transaction with a bank card and attending a room at Pussy Galore between 5:00pm and 6:00pm on 5 April 2022.
Make threat to kill, carry dangerous item in public place and commit indictable offence on bail
On 6 June 2022, the complainant Mr Rehmtulla was inside his home when he heard the applicant shouting out to him. The applicant said “Mohammed, I am going to kill you”, “you can call the police if you want” and “I’m going to murder you”. By viewing his security camera feed, the complainant could see the applicant on the other side of the fence waving a long metal pipe in his right hand. The complainant feared for his life and called police. Police arrested the applicant and seized an axe handle wrapped in tape with a metal tip.
No PSIO was in place protecting the complainant from the applicant at the time of the alleged offending. The most recent order had expired on 19 April 2022.
The complainant commented that the applicant repeatedly breached the PSIO by approaching him, intimidating him and shouting homophobic slurs at him. The complainant stated that he does not feel safe in his own home and that this has taken a toll on his mental health.
The incident was captured by security cameras belonging to the complainant. No statement was taken from the applicant as he was deemed not fit for interview.
On 6 June 2022, the applicant was charged with make threat to kill, carry dangerous item in public place, obtain property by deception, theft, and committing an indictable offence on bail.
Evidence on the application

The application is supported by the Affidavit of Thibaut Clamart, solicitor, dated 18 July 2022 attaching a series of exhibits. Separately, the applicant has filed a psychological assessment report authored by Dr Warren Simmons dated 4 August 2022. In addition, the Court has been provided with a letter from the Court Integrated Services Program (CISP) stating that the applicant has been assessed and found unsuitable for the CISP. The applicant further filed some written submissions in support of the application.

In response, the respondent has filed and Affidavit sworn by Nathan Watt dated 1 August 2022, attaching a series of exhibits, as well as written submissions prepared by Cameron Gauld of Counsel, dated 11 August 2022.

The applicable legislation

As the applicant is charged with a schedule 2 offence under the Bail Act 1997 (Vic) (‘The Act’)[6] while subject to a community correction order made in respect of a schedule 2 offence,[7] he must satisfy the Court that exceptional circumstances exist that justify the grant of bail.[8] In considering whether the applicant has satisfied this test, the Court must have regard to the surrounding circumstances, including those relevant under s 3AAA(1).[9]
[6]In this case, committing an indictable offence on bail.
[7]Ibid.
[8]Bail Act 1997 (Vic), ss 4AA(2)(c)(iv) and 4A(1)-(2).
[9]Ibid, s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that risk is unacceptable.[10] In determining this, the Court must have regard to the surrounding circumstances and whether there are any bail conditions that may mitigate the risk.[11]
[10]Ibid, 4E(1)-(2).
[11]Ibid, s 4E(3).
The applicant’s personal circumstances
The applicant is 52 years of age.
The applicant has a significant mental health history, having been first registered for mental health needs in 1994 (age 24).[12] In recent years, the applicant has been involuntarily treated multiple times.[13] According to a report prepared by Forensicare’s Mental Health Advice & Response Service (MHARS) on 14 July 2022, the applicant has been diagnosed with manic schizoaffective disorder and dissocial personality disorder, and it is noted he also has mental health and behavioural problems due to problematic alcohol, cannabis and opioid use.
[12]Forensicare report, dated 14 July 2022 (Affidavit in support, exhibit TC-7).
[13]Ibid. The report records that the applicant has been involuntarily treated multiple times between 2014 and 2022.
While in custody, the applicant has been involuntarily treated at Thomas Embling Hospital under a Secure Treatment Order (STO) made pursuant to s 275 of the Mental Health Act 2014 (Vic). This order expired on 2 August 2022.
The applicant is estranged from his parents and siblings and is not in a relationship. He has one adult child from whom he is also estranged.
Criminal history
The applicant has relevant recent convictions, including making threats to kill, committing indictable offences on bail, contravening personal safety orders, and dishonesty offending.
The applicant also has a history of threatening and harassing Mr Rehmtulla, who is the complainant in the summons matters and one of the complainants in the remand matter. Personal safety orders have been made in the past protecting Mr Rehmtulla, which the applicant has contravened.
At the time the alleged offending occurred, the applicant was subject to an adjourned undertaking to comply with the PSIO protecting Mr Rehmtulla. However, the PSIO lapsed before the offence date.
The applicant was also subject to a Community Correction Order (CCO) at the time the alleged offending occurred.[14]
[14]The applicant was sentenced to 12 months on a CCO on 23 February 2022. The only condition was that the applicant complete 100 hours of community work.
Active PSIOs
The applicant is subject to three active PSIOs.
Interim PSIO protecting Mohammed Rehmtulla
An interim PSIO was made protecting Mr Rehmtulla on 9 June 2022, and is due to return to court on 11 August 2022. The interim PSIO includes a condition preventing the applicant going within the boundary of Mr Rehmtulla’s address; 40 Setani Crescent, Heidelberg West.
Final PSIO protecting Paulina Blay
A final PSIO protecting Paulina Blay was made on 15 February 2021 and expires on 14 February 2023. The PSIO includes limited conditions with no home exclusion. It is not clear what the applicant’s connection to Ms Blay is.
Final PSIO protecting Anthony McNamara
A final PSIO protecting Anthony McNamara was made on 27 August 2014 and expires on 31 December 2060. The applicant and Mr McNamara were neighbours at the time the application was made. The PSIO includes a condition preventing the applicant going within the boundary of 1/16 Orchard Ave, Boronia.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
Obtain property by deception and theft
The applicant submits that the prosecution case is weak in relation to the charges of obtain property by deception and theft, due to limited identification evidence. The applicant submits that there is no evidence the card being used in the CCTV footage belongs to the complainant, and that given the quality of the footage the prosecution will have difficulties proving the man shown in the CCTV footage is the accused.
Make threat to kill
The applicant acknowledges that the prosecution case is stronger with regards to the charge of make threat to kill.
However, the applicant submits that there is reasonable doubt as to whether the applicant intended or was reckless as to whether the complainant would fear the threat would be carried out. In support of this contention, the applicant submits:
(a)the complainant and the applicant are on their respective properties;
(b)the applicant is not seen trying to enter the complainant’s property;
(c)there is a long standing history of threats by the applicant against the complainant which have never been carried out; and
(d)the applicant has a long standing mental health history and has been diagnosed with schizoaffective disorder and antisocial person disorder.
The applicant submits that the existence of these issues in turn affects the strength of the prosecution case in relation to the charge of committing an indictable offence while on bail.
Carry a dangerous article in a public place
The applicant submits that the prosecution case is not strong with regards to the charge of carry a dangerous article in a public place. In support of this contention, the applicant submits that:
(a)The CCTV stills allegedly show the applicant standing in his front yard and waving the dangerous article. The applicant submits that his front yard is not a public place.
(b)The alleged dangerous article appears to have been found during a warrantless search of the applicant’s property. The applicant submits that it is not clear on the current evidence whether the search of applicant’s house can be characterised as incidental to his arrest, therefore the lawfulness of the search and seizure of the alleged dangerous article are in issue.
Finally, in relation to all charges, the applicant submits that there is a possible defence of mental impairment. The applicant will be assessed by Dr Nina Zimmerman on 16 August 2022 in relation to this.
Delay and likely sentence
The applicant submits that delay can amount to an exceptional circumstance in and of itself. The applicant submits that this can be because the time on remand is likely to exceed sentence, but that inordinate delay can also be an exceptional circumstance regardless of whether time on remand is likely to exceed sentence. The applicant notes that a two year delay between arrest and trial was held to amount to an exceptional circumstance in Barbaro v CDPP.[15]
[15]Barbaro v CDPP (2009) 20 VR 71, [5].
The applicant submits that there will be a significant delay in having the matter finalised in the Magistrates’ Court. The matter is listed for contest mention on 6 September 2022. The applicant estimates that a two day summary hearing is likely to be listed in mid-2023.
The applicant submits that this delay is inordinate and that the time spent on remand would likely exceed any term of imprisonment that could be imposed were the applicant found guilty of all the offences charged (which in the applicant’s submission is in itself unlikely).
COVID-19 and onerous conditions in custody
The applicant submits that the Court can take judicial notice of the fact that conditions of imprisonment during the COVID-19 pandemic are more onerous than they were prior to the pandemic. The applicant refers to the requirement of 14 days’ quarantine, the prohibition of in-person visits of prisoners, and the limited programs available to prisoners.
Availability of treatment or bail support services
Given the applicant’s involuntary admission to Thomas Embling Hospital pursuant to a STO, the current release plan, should he be released from custody, is to be released onto an Inpatient Assessment Order under the Mental Health Act 2014 (Vic).
The applicant also intended to rely on a CISP report, and also a psychologist's report of Warren Simmons for the purposes of the bail application. The applicant has as it turns out, been assessed by CISP. But unfortunately the outcome of that is that bail has not been recommended by CISP. However, that does not take away the matter altogether, because the applicant relies on the comments of Warren Simmons for the purposes of the application and the prospect that ongoing treatment with Thomas Embling, as set out in the report from that organisation.
Availability of a bail address
The applicant submits that he can continue to reside at [redacted]. This accommodation appears to be arranged through the Ministry of Housing.
Unacceptable risk
Endangering the safety and welfare of any person and committing an offence whilst on bail
The applicant concedes that there is a high risk that the applicant may endanger the safety and welfare of any person and commit an offence whilst on bail. However, the applicant submits that stringent bail conditions would bring these risks to an acceptable level.
At the time of the alleged offending for the remand matter, the applicant was subject to a bail undertaking containing only one special condition, being not to contact Sarah Murdoch or Krista Yager. The applicant submits that much more stringent bail conditions can be imposed to bring the risks to an acceptable level, including conditions requiring compliance with CISP and with any PSIO protecting Mr Rehmtulla.
Should the Court find that, notwithstanding the imposition of stringent bail conditions, these risks would remain high, the applicant submits that the risks are not necessarily unacceptable. The applicant submits that risk must be assessed in all the circumstances of the case, including seriousness of the likely offending and delay.[16] The applicant submits that while the risks may be high, they may be considered acceptable taking into account what is very likely to be a significant delay before the matters are determined, the current onerous conditions in custody, and the fact that the potential further offending is best characterised as moderate in gravity.
[16]The applicant refers to the following authorities: Re application for bail by Marino [2021] VSC 769, [39]; Hall v Pangemanan [2018] VSC 533, [25]; Re Fleming [2019] VSC 615, [47]-[50]; Re Jiang [2021] VSC 148 [64].
Failing to surrender into custody in accordance with the conditions of bail
The applicant relies on his lack of prior convictions for failing to answer bail. He submits that the respondent cannot establish that there is a risk he will fail to surrender into custody.
Proposed bail conditions

The applicant proposes the following conditions:
(a)reside at 271 Oriel Road, Heidelberg West or as directed by a medical practitioner;
(b)not use any drug of dependence;
(c)report at the Heidelberg police station between 7:00am and 9:00pm on Wednesday and Sunday each week;
(d)comply with the lawful directions of CISP at Heidelberg; and
(e)comply with any personal safety orders made against him to the benefit of Mr Mohammed Rehmtulla.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not satisfied the Court as to the existence of exceptional circumstances that justify the grant of bail, and that the applicant is an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Strength of the prosecution case
The prosecution relies on CCTV footage to establish the identity of the applicant in respect of the remand matters.[17]
[17]See affidavit in response, exhibits NPW-5 and NPW-6 for the CCTV footage relied upon with respect to the charges of obtain property by deception and theft. See affidavit in response, exhibit NPW-7 for the CCTV footage relied upon with respect to the charges of make threat to kill and possess a dangerous article in a public place.
Criminal history
The respondent relies upon the applicant’s recent, relevant criminal history, which includes offending against the complainant/protected person Mr Rehmtulla.
On 23 February 2022 the applicant was placed on a 12-month CCO for a number of matters, including for offences against Mr Rehmtulla. On 7 January 2021 the applicant was placed on a 12-month adjourned undertaking for a number of matters, including for offences against Mr Rehmtulla.
On 12 August 2020, the applicant was placed on a 12-month adjourned undertaking relating to an incident with staff at North East Mental Health service and not with Mr Rehmtulla.
Personal safety intervention orders in force
The respondent refers to the three active PSIOs against the applicant, as set out above.
Family violence risks
The respondent alleges that on 13 April 2022, the applicant attended the address of his estranged brother, banged on the front door and screamed “where is my brother and mother”. The applicant’s niece was present and called the police, however the applicant left before police arrived.
Police made formal referrals for the applicant’s niece and family to receive assistance if required, however no intervention order was sought.
Availability of treatment or bail support services
The respondent acknowledges that the applicant’s mental illness, and the involvement of mental health services should the applicant be granted bail, may be significant considerations. However, the respondent submits that the applicant’s medical records demonstrate a history of non-compliance with mental health recommendations.
In support of this contention the respondent refers to recent variations to the applicant’s treatment order:
(a)On 16 February 2022, the applicant’s community treatment order was varied to an inpatient treatment order on the basis that he declined to attend for his medication administration and therefore required a brief admission for medication administration to occur.
(b)On 16 March 2022, the applicant’s community treatment order was varied to an inpatient treatment order on the basis that he was declining treatment and therefore required admission for assessment and medical administration. The inpatient treatment order was varied to a community treatment order the following day.
(c)On 13 April 2022, the applicant’s community treatment order was varied to an inpatient treatment order on the basis that he had not attended for his medication administration that week. The inpatient treatment order was varied to a community treatment order two days later.
(d)On 11 May 2022, the applicant’s community treatment order was varied to an inpatient treatment order to enable treatment administration and review, as he had not attended for medication administration that day. Two hours later, the inpatient treatment order was varied to a community treatment order and the applicant was discharged.
The respondent submits that these records demonstrate the applicant is resistant to mental health assistance. The respondent submits that this is indicative of likely future non-compliance with mental health recommendations and in turn places the applicant at a higher risk of re-offending.
Suitability of bail address and complainant’s views on bail
The respondent opposes the proposed bail address (being the applicant’s usual residential address) for the following reasons:
(a)The applicant is currently remanded for offending which is alleged to have been committed against his next door neighbour;
(b)The applicant appears to be fixated on the complainant;
(c)The applicant’s behaviour has significantly impacted the complainant’s mental health and quality of life. The complainant has told police that he is afraid for his life and scared to leave his home, and believes that the applicant will attend his home and harm him if released on bail. The complainant is scared that the applicant is not concerned about the police and fears that the applicant will kill him, regardless of any interventions put in place.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant has a propensity to commit offences which involve contacting or threatening the same complainant, and that the applicant shows disregard for the PSIO protecting the complainant.
Committing an offence whilst on bail
The respondent submits that the applicant has a history of committing offences whilst on bail, and is facing charges for committing an indictable offence whilst on bail.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submits that there is an unacceptable risk that the applicant will attempt to communicate with the complainant, given their close proximity and the applicant’s nine previous convictions for breaching the intervention order.
The respondent also raises concern that the applicant will continue to harass and threaten the complainant, given that the applicant is alleged to have threatened to kill the victim without provocation or prior communication.
Failing to surrender into custody in accordance with the conditions of bail
The respondent notes that the applicant was charged with failing to answer bail on 27 November 2019.
Analysis and conclusions
Exceptional circumstances

This application is governed by the Bail Act, which is to be applied and interpreted having regard to the guiding principles in s1B(1). This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.

The application proceeded on the basis that the parties accepted that the exceptional circumstances test applied to the application.

In determining this application I will apply the test as set out by Lasry J in Re Strachan,[18] in which His Honour observed:

The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a)      The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b)      Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c)       Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[19]

[18][2021] VSC 538.

[19]Ibid, [27].

As to the strength of the prosecution case, the applicant has pointed to a number of triable issues in the various charges brought against him. In respect of the obtain property by deception and theft charges, the applicant submits the prosecution case is weak due to the limited identification evidence. It is submitted that the quality of the footage available means that the prosecution will find it difficult to prove that the person shown in the CCTV footage is the accused.

In respect of the charge of making a threat to kill, it is submitted that there is reasonable doubt as to the issue of intention, and as to whether the complainant would fear that the threat would be carried out. The applicant pointed to a number of factors in support of this submission. In particular, that the parties were on their respective properties, the applicant was not seen trying to enter the complainant’s property, that there was a longstanding history of threats towards the complainant which have never been carried out, and the applicant has an established longstanding mental history, all of which together it is submitted affect the prosecution case in relation to the charge of committing an indictable offence on bail.

Ultimately, of course, the applicant also submits there remains a possible defence of mental impairment. I note that Ms Zimmerman is to assess the applicant on 18 August 2022, and it may well be that the outcome of that assessment allows a mental impairment defence to be raised by the applicant in his proceedings in the Magistrates' Court. However, as that assessment is not before the Court, I am unable to take anything into account in respect of that possibility.

It is not the role of this Court to try the issues before the Court but come to a general impression as to strength and weaknesses of the prosecution cases. It may be that some of the allegations of the prosecution will not be established, but ultimately these are matter for the trier of fact to determine. In my opinion, I am unable to conclude that any of these charges should be regarded as inherently weak.

As to the question of delay, the applicant says that it is anticipated that these charges may not be resolved until mid-2023, and further that there is a risk that the applicant will spend more time on remand than he may ultimately receive by way of sentence.

It is well understood that delay can by itself amount to an exceptional circumstance and more so if combined with other factors raised by the applicant in combination.

At this stage, it is difficult to ascertain the extent of the delay that will actually take place, however I accept that there may well be a significant delay before these matters are able to be resolved. Given that there is some doubt about the aspect of delay, it is not a matter that I will use against the applicant’s interests in this application. I have also taken into account that the applicant has already spent a significant period of time in custody that may well come towards equating with a sentence to be ultimately imposed, albeit that will be of course a matter for a sentencing court.

The applicant also relies on a psychological report from Warren Simmons, and a report dated 14 July 2022 from Forensicare pointing to current treatment being available at the Apsley Unit at Thomas Embling Hospital.

I do not regard this material, particularly that of Warren Simmons, to be satisfactory, nor particularly persuasive, as to providing protection for the community, particularly in light of the applicant’s established mental health conditions, in light of the apparent degree of support to be provided, and for treatment to sufficiently limit the applicant’s demonstrated past offending behaviours.

I note that the report which I have read carefully from Warren Simmons was a report constructed without a face to face interview, but rather one that occurred by way of telephone, and I regard that as unsatisfactory in all of the circumstances of the case.

I have also taken into account the submission that the applicant proposes to continue to reside at his home address if bailed, which is as I have explained, next door to the complainant in some of the charges before the Court.

Given the serious nature of the allegations made against the applicant, the prospect that he would return to live in close proximity to the complainant if released on bail is in my opinion a significant matter weighing against a grant of bail. The applicant has made threats of serious violence against the complainant involving assertions that he will kill him. On one occasion he is demonstrated to have held a weapon and brandished it at least towards the house in which the complainant was present.

Having considered all the matters raised on behalf of the applicant, I am in the end not satisfied that the applicant has established that exceptional circumstances exist to justify admitting the applicant to bail.

Having concluded the applicant has not satisfied me that the exceptional circumstances test has been satisfied, it is worth noting that had he satisfied the test I would have in any event concluded that the respondent has persuaded me that the applicant represents an unacceptable risk as defined by the Act.

The applicant has a series of highly relevant prior court appearances, a number of which have involved related types of offending and breaches of previous court orders. In particular, he is alleged to have been in breach of a CCO for related types of matters at the time of his most recent alleged offending.

Further, the respondent has satisfied me that there is an unacceptable risk that the applicant would continue to offend towards his next-door neighbour, Mr Rehmtulla. I also consider there is an unacceptable risk that the applicant will revisit his fixational approach to Ms Murdoch and others associated with her if he was released on bail.

Therefore, for the above reasons, I will order this application for bail be refused.

[2022] VSC 584

12 August 2022