Re Ss
[2024] VSC 225
•7 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0063
| Between: | |
| SS | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 May 2024 |
DATE OF ORDERS & REASONS: | 7 May 2024 |
CASE MAY BE CITED AS: | Re SS |
MEDIUM NEUTRAL CITATION: | [2024] VSC 225 |
---
CRIMINAL LAW — Application for bail — Charges of contravening condition of supervision order, threats to kill, intimidation of person who may become involved in criminal investigation, using threatening words, unlawful assault (by words), offending on bail — Allegation that SS failed to submit to urinalysis in breach of supervision order, thereby also breaching condition of bail — Alleged that, six days later, SS again failed to submit to urinalysis in breach of supervision order, threatened to kill employee of Dorevitch, and her husband, and thereby breached bail again — SS on bail for charges including breach of supervision order — Extensive criminal history, including for violence — SS in custody for seven weeks since arrest — Charges of threat to kill and intimidation to be heard as summary contest in Magistrates’ Court before related charges of breaching supervision order etc to be heard summarily in Supreme Court — Final hearing in Magistrates’ Court not before end of year, and hearing in Supreme Court necessarily later still — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others — Delay until finalisation of charges likely to exceed length of non‑parole period, if convicted — Likelihood that “special reason” concerning mental ill‑health would exist in sentencing, if convicted — Exceptional circumstances established — Strictures of supervision order reduce risk of offending on bail so as not to be unacceptable — Bail granted on own undertaking — Serious Offenders Act 2018 (Vic), ss 3, 31, 169 & 173‑176 & Schedule 3; Bail Act 1977 (Vic), ss 3AAA, 4AA, 4D, 4C, 30A & 30B; Crimes Act 1958 (Vic), ss 20 & 257(1); Summary Offences Act 1966 (Vic), ss 17(1)(c) & 23; Sentencing Act 1991 (Vic), ss 10AB & 10A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | Balmer & Associates Pty |
| For the Respondent | Mx C Rattray | Office of Public Prosecutions |
HIS HONOUR:
Overview
SS[1] applies for bail. He was arrested on 20 March 2024 and subsequently charged with various offences, including breaches of his supervision order by failing to submit to urinalysis and by making threats to kill, thereby breaching his existing bail as well. On 21 March 2024, SS was refused bail in the Magistrates’ Court.
[1]SS’s name has been anonymised in these reasons in conformity with a previous order of the Court.
On 3 May 2024, I heard SS’s application for bail to this Court. I reserved my decision until today.
I am satisfied that there are exceptional circumstances justifying bail and I am not satisfied that there is an unacceptable risk that, if bailed, SS would endanger the safety or welfare of another person. Accordingly, bail must be granted.
My reasons follow.
Background
The offending alleged against SS occurred against the following background.
In 2019, pursuant to the Serious Offenders Act 2018 (Vic) (“the SOA”), Tinney J imposed a supervision order on SS for a period of six years. Subsequently, his Honour varied the order to include an intensive treatment and supervision condition, which required SS to reside at Rivergum (a secure treatment facility). Following a hearing conducted in April last year, I rejected an application to renew that condition.
The circumstances giving rise to the making of the supervision order, SS’s performance on the order and his criminal history (which is extensive) are explained in detail in my reasons for sentencing him, on 20 October 2023, to 21 days’ imprisonment for a breach of a condition of the order by removing his electronic monitoring bracelet.[2] I shall not repeat that information here, but these reasons should be read with those earlier reasons in mind.
[2]See DPP v SS [2023] VSC 631.
The supervision order contains at least two conditions relevant to this application. First, condition 6.3 provides that SS must not commit an offence referred to in Schedule 3 of the SOA. Second, condition 7.6 provides inter alia that SS must submit to urinalysis, for the detection of drug use, at the direction of an officer who has reasonable grounds to suspect that he has breached other conditions of the supervision order by consuming drugs.
On 27 November 2023, I released SS on bail on charges for various offences, including breaching his supervision order by using methylamphetamine and by resisting emergency workers on duty.[3] (My reasons concerning that application should also be read with the present reasons.) One of the conditions of his bail was that he comply with the conditions of his supervision order. This is the bail SS is said to have breached by allegedly committing the offences the subject of the current application.
[3]See Re SS [2023] VSC 712.
Alleged offending
The present alleged offending may be summarised in this way.
On 23 February 2024, a Parole and Specialist Case Manager (“PSCM”) formed reasonable grounds to direct SS to submit to urinalysis. The PSCM contacted SS and arranged for him to go to Dorevitch at Camberwell for this purpose. This direction was ultimately changed to Dorevitch at Frankston. When an employee at Frankston indicated that she required samples in four tubes, including one to be tested for GHB, SS said he was not informed of this and that he would not be doing the test. He left the clinic without providing a sample of urine.
On 28 February 2024, a decision was made by the PSCM and a Principal Practitioner to direct SS for urinalysis because he had failed to attend an appointment with Caraniche that day. The PSCM scheduled a text to be sent to SS at 8:00 a.m. the next morning, on 29 February, directing him to attend Dorevitch at Clayton that day between 9:30 a.m. and 11:00 a.m. The PSCM rang SS at 9:36 a.m. the next morning explaining she had sent him a text and was directing that he undergo testing. SS was abusive and hung up. At 9:43 a.m., the PSCM sent a further text directing him to attend. SS contacted Corrections Victoria demanding to speak to a Principal Practitioner as opposed to the PSCM. He left voice messages expressing frustration.
A decision was made to redirect SS to Dorevitch at Mulgrave between 11:00 a.m. and 2:00 p.m. This decision was conveyed by text, to which SS replied with the words “all right” and a thumbs up emoji.
At about 1:58 p.m., SS attended Dorevitch at Mulgrave. He was told by a staff member that they close at 2:00 p.m. but that they had time to take his samples. Initially, SS was calm. Later, however, he showed the staff member a phone message from the PSCM, at which time his body language changed to agitated. SS moved from his chair and stood over the staff member, abusing her and swearing at her. He then paced around the room. She told him to calm down, as she felt threatened that he might hit her with the phone. She pointed to a sign on the wall about abusive behaviour, and said she would have to ask him to leave if he continued to behave as he had. But this only made him escalate further. He refused to provide a sample. He began to threaten the staff member, which caused her to say that she would have to ring his “parole officer”, which made him “go crazy”. SS called her a “dirty rat” and threatened to kill her, her husband and her family. He also said he knew where she lived.
Another staff member was nearby, next to the Mepac alarm, but she was frozen with fear and unable to push the alarm. SS said, “You’re scared now,” and threatened to follow both staff home.
SS left the clinic but waited outside in his car, which made both staff members frightened to leave. He ultimately left in his car at 2:08 p.m.
Arrest and interview
Three weeks later, on 20 March 2024, by arrangement with his lawyers the previous day, SS was ultimately arrested at Ringwood Hospital, and conveyed to Ringwood Police Station.
When interviewed about the incident of 23 February, SS said he had never been asked to provide more than three samples in the ten years or so he had been subject to testing. He denied knowing there was a fourth vial for GHB, and said he was not shown any paperwork to that effect.
As for the incident on 29 February, he confirmed his attendance for testing but denied any verbal threats or abuse. He queried why the first staff member would say that he threatened to hunt her down because he already knew where she lived as a result of previous contact with her. (Subsequently, the staff member provided a statement to police acknowledging, inter alia, that SS might have done some work for her and her husband at their home previously.)
Charges
The alleged behaviour by SS on 23 February resulted in the following charges:
a)contravening condition 7.6 of his supervision order by failing to submit to urinalysis[4] (Charge 1);
b)committing an indictable offence (namely, the offence charged in Charge 1) while on bail[5] (Charge 2); and
c)breaching a conduct condition of bail (namely, the bail condition that he comply with his supervision order)[6] (Charge 3).
[4]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
[5]Contrary to s 30B of the Bail Act 1977 (Vic) (since repealed).
[6]Contrary to s 30A(1) of the Bail Act 1977 (Vic) (since repealed).
His alleged behaviour on 29 February resulted in the following charges:
a)contravening condition 7.6 of his supervision order by failing to submit to urinalysis[7] (Charge 4);
[7]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
b)committing an indictable offence (namely, the offence charged in Charge 4) while on bail[8] (Charge 5);
c)committing an indictable offence (namely, the intimidation offence charged in Charge 12) while on bail[9] (Charge 6);
d)breaching a conduct condition of bail (namely, the bail condition that he comply with his supervision order)[10] (Charge 7);
e)using threatening words[11] (Charge 8);
f)unlawful assault[12] (Charge 9);
g)contravening condition 6.3 of his supervision order by committing the offence of threatening to kill[13] (in Charge 13), an offence in Schedule 3 of the SOA (Charge 10);
h)contravening condition 6.3 of his supervision order by committing the offence of threatening to kill[14] (in Charge 14), an offence in Schedule 3 of the SOA (Charge 11);
i)engaging in intimidation of a person the accused believes may be involved in a criminal investigation[15] (Charge 12);
j)making threats to kill[16] (Charge 13); and
k)making threats to kill[17] (Charge 14).
[8]Contrary to s 30B of the Bail Act 1977 (Vic) (since repealed).
[9]Contrary to s 30B of the Bail Act 1977 (Vic) (since repealed).
[10]Contrary to s 30A(1) of the Bail Act 1977 (Vic) (since repealed).
[11]Contrary to s 17(1)(c) of the Summary Offences Act 1966 (Vic).
[12]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
[13]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
[14]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
[15]Contrary to s 257(1)(a) of the Crimes Act 1958 (Vic).
[16]Contrary to s 20 of the Crimes Act 1958 (Vic).
[17]Contrary to s 20 of the Crimes Act 1958 (Vic).
Bifurcated proceedings
On 22 March 2024, Charges 1, 4, 10 and 11 were transferred from the Magistrates’ Court at Ringwood to this Court pursuant to s 173(6) of the SOA, which requires this Court to hear charges of contravening a supervision order it has imposed. At the same time, Charges 2, 3, 5, 6, 7, 8 and 9 were also transferred to this Court, but pursuant to s 175(2) of the SOA, which requires the transfer of proceedings in respect of charges for summary offences that are related offences.
However, on the same day, Charge 12 was adjourned to the Magistrates’ Court at Moorabbin as the proper venue. On 4 April 2024, Charges 13 and 14 were filed at the same court at Moorabbin. Because Charges 12, 13 and 14 allege indictable offences (albeit triable summarily), they are not picked up by the SOA as charges that could be transferred to this Court by the mechanism that applied to the other charges.[18]
[18]The only ways in which they could come to this Court to join the related charges already here would be via the committal process or direct indictment, but, in each case, that would necessitate a jury trial if the charges were disputed.
As I understood counsel at the hearing, the summary offences charged in Charges 8 and 9 (threatening words and assault by words) are alternatives to the indictable offences charged in Charges 12, 13 and 14 (threats to kill and intimidation).
Thus, there are presently two separate proceedings on foot in the Magistrates’ Court and this Court for related charges.
For the reasons I gave in SS’s previous bail application in November, where the same issue arose (albeit on different facts), I consider this to be an unsatisfactory state of affairs.[19] Happily, in that case, the Director of Public Prosecutions and SS were able to resolve the matter in a sensible way — in particular, in a manner that allowed all the charges to be dealt with in the one sentencing hearing by this Court.[20]
[19]Re SS [2023] VSC 712 at [17]-[32].
[20]Re SS [2023] VSC 712 at [33]-[37]. These matters (and some other matters) are yet to be finalised.
However, the Director is not prepared to take a similar approach on this occasion. This stance is taken notwithstanding that SS, through his counsel Mr Pearson, has offered to settle the matter in a way that would allow this Court to sentence on all of the current charges at the one time. In particular, Mr Pearson explained that, if the charges in the Magistrates’ Court (namely, Charges 12, 13 and 14) were withdrawn, there could be pleas of guilty to the summary alternatives in this Court (namely, Charges 8 and 9), as well as to a selection of the charges alleging contraventions of the supervision order and the Bail Act charges.
In short, Mx Rattray, who appeared for the Director on this application, advised that such an offer had been made and considered but was rejected. Counsel’s instructions were that it was considered necessary to press the threat to kill charges (Charges 13 and 14), which means there must be a separate hearing in the Magistrates’ Court. One reason given was that the seriousness of the alleged threats should be reflected in an offence or offences of threat to kill. Another was that a finding of guilt on such a charge or charges would mean that SS may have contravened a “restrictive condition” of his supervision order and, if so, that would potentially expose him to a mandatory sentence of at least 12 months’ imprisonment for such an offence, unless the Court did not find that he intentionally or recklessly contravened the restrictive condition and/or unless the Court found that a “special reason” existed.[21]
[21]See ss 10AB and 10A of the Sentencing Act 1991 (Vic).
Application to transfer Charges 8 & 9 back to Magistrates’ Court
In the course of the bail hearing, Mx Rattray submitted that, given Charges 8 and 9 allege offences alternative to the offences alleged in Charges 13 and 14, the former charges should be transferred back to the Magistrates’ Court to join the latter charges. While Mr Pearson maintained the submission that the Director should settle the matter in this Court in the way suggested, he agreed that, if that is not to occur, Charges 8 and 9 should go back to the Magistrates’ Court.
Section 176(6) of the SOA allows this to occur, for that provision provides that, “[i]f the court considers it appropriate to do so, the court may transfer a proceeding for a summary offence transferred under [s] 175 back to the Magistrates’ Court for hearing and determination”.
Notwithstanding Mr Pearson’s acquiescence in Mx Rattray’s application, I do not consider that it is appropriate to transfer Charges 8 and 9 back to the Magistrates’ Court, at least at the present time. There are two reasons.
First, this Court is currently seized of jurisdiction to hear and determine Charges 8 and 9 as summary offences related to alleged contraventions of the supervision order charged in Charges 10 and 11, as well as the related bail offences alleged in other charges. Section 31(4) of the SOA provides that an offender must not commit an offence referred to in Schedule 3. Item 10 of Schedule 3 provides that among the additional offences not to be committed as a core condition of a supervision order is “[an] offence, whether committed in Victoria or elsewhere, the necessary elements of which consist of elements that constitute an offence of a kind referred to in this Schedule”. The Schedule refers to threats to kill[22] (in item 1(c)), assaults[23] (in item 1(o)), and the common law offence of common assault (in item 3). It is arguable that the elements of the offences charged in Charges 8 and 9 fall within one or more of these other offences, so that commission of the former offences may amount to a breach of a restrictive condition within the meaning of that term in s 3 of the SOA. If that is correct, the Director could still argue that he has breached a restrictive condition of the supervision order in this Court by reason of the behaviour alleged in Charges 8 and 9 without having to persist in the bifurcated proceedings in two courts.
[22]Contrary to s 20 of the Crimes Act 1958 (Vic).
[23]Contrary to s 31 of the Crimes Act 1958 (Vic).
Second, I should add that the foregoing analysis was not raised at the bail hearing, and I have not heard any submissions on it in consequence. However, the Director and SS should have the opportunity to consider their positions in light of the foregoing discussion before I finally determine whether to accede to Mx Rattray’s current submission to transfer Charges 8 and 9 back to the Magistrates’ Court.
If, upon further consideration, the parties maintain the submission that such a transfer should occur, that application can be finally determined at a later time. But there is no pressing rush because, as we shall see, it is thought that the final hearing in the Magistrates’ Court is not likely to be reached before the end of this year.
Exceptional circumstances
It is against that background that I turn now to consider the application for bail, commencing with the question whether SS has satisfied the Court that exceptional circumstances exist that justify a grant of bail.[24]
[24]The exceptional circumstances test applies because SS is charged with Schedule 2 offences while on bail for Schedule 2 offences (see s 4AA(2)(c)(i) and items 28 & 29 of Schedule 2 of the Bail Act 1977 (Vic)). See also s 3AAA on the surrounding circumstances which must be considered.
Mr Pearson submitted that the delay before the matter could be finalised in the Magistrates’ Court, and then in this Court, is likely to be some time into next year. In those circumstances, he submitted, there is a likelihood that, if not bailed, SS will spend more time in custody than the custodial (or non-parole) component of any total sentence of imprisonment he would receive if he were convicted of all charges in both courts. As part of his submission, Mr Pearson referred me to sentencing statistics published by the Sentencing Advisory Council for threats to kill when dealt with in the Magistrates’ Court.[25]
[25]Sentencing Advisory Council, SACStat, Make threat to kill, Magistrates’ Court sentencing outcomes, 1 July 2020 to 30 June 2023.
Added to this, Mr Pearson submitted that, given his mental health history, it is likely that SS would be able to establish that, at the time of the alleged offending, he “had impaired mental functioning that [was] causally linked to the commission of the offence” and that “substantially and materially reduce[d] [his] culpability”.[26] If so, that would be a special reason denying the applicability of the mandatory sentence of at least 12 months’ imprisonment on a contravention of a restrictive condition of the supervision order. This, in turn, is likely to mean that, if not bailed, he would spend more time on remand than the total prison sentence he would receive if convicted of the charges against him.
[26]See s 10A(2)(c)(i) of the Sentencing Act 1997 (Vic).
In either case, submitted Mr Pearson, this would amount to exceptional circumstances.
Mx Rattray accepted that delay and the likely sentences were the principal issues going to exceptional circumstances, but submitted that I should not be satisfied that the custodial component of any prison sentence would be exceeded by the delay in finalisation of these matters. That said, Mx Rattray did not suggest that a contested hearing in the Magistrates’ Court could be listed before the end of this year. Nor was it submitted that there would be no further delay in finalising the matter in this Court. It was also conceded, correctly, that if SS were found guilty of threats to kill in the Magistrates’ Court, and if this Court found that he had intentionally or recklessly contravened a restrictive condition and that no special reason existed, so that a term of at least 12 months’ imprisonment had to be imposed, a non‑parole period could be fixed on that sentence, and any such non‑parole period must be at least six months less than the total effective sentence.[27]
[27]See s 11 of the Sentencing Act 1997 (Vic).
For the reasons urged by Mr Pearson, combined with the concessions made by Mx Rattray concerning delay, I am satisfied that there is a likelihood that, if SS is not bailed, he will spend more time on remand than the custodial component of any prison sentence imposed on him were he found guilty of all of the charges.
While the alleged threats have a serious element to them — including the view that, if accepted at face value, they would have frightened the complainant out of her wits — they were not accompanied by any actual violence. SS has prior convictions for very serious offences, but they were incurred many years ago, when he was very young. His offending since he has been released on the supervision order has, in the main, not involved actual violence. None has resulted in physical injury. I accept that SS is an imposing figure who is quick to anger and abusive outbursts. But, at least in recent years, his words have promised much more than he has ever delivered.
Further, he does have mental health afflictions which are among the reasons he is on a supervision order in the first place. I accept that it will be arguable that it is likely that these afflictions played a part in his alleged behaviour on these occasions and that they may well amount to a “special reason” of the kind that ousts the mandatory sentencing provision that otherwise might apply were he found to have intentionally or recklessly contravened a restrictive condition of his order.
Even if the evidence on any plea in mitigation did not go that far, his mental ill‑health is likely to feature in sentencing more generally, and in the fixing of any non‑parole period, were he convicted of the more serious offences.
In light of the foregoing, I am satisfied that there is a likelihood that, if SS is not bailed, the custodial component of any sentence of imprisonment would be exceeded by time spent on remand awaiting finalisation of the charges the subject of this bail application. Further, I am persuaded that that fact alone is enough to amount to exceptional circumstances justifying bail.
Unacceptable risk
I turn now to the question of unacceptable risk.
Mx Rattray submitted that, if exceptional circumstances were established, bail should still be refused because I should be satisfied that there is an unacceptable risk that, if bailed, SS would endanger the safety or welfare of another person. [28]
[28]See ss 3AAA, 4D & 4E of the Bail Act 1977 (Vic). There was no suggestion of a risk of interfering with witnesses or failing to appear.
As Mx Rattray submitted, a risk is unacceptable if it cannot be tolerated.[29] The question of what constitutes an unacceptable risk is not easily answered. When considering whether an applicant for bail poses an unacceptable risk in the ways alleged, reasonable minds may well differ about the result.[30]
[29]Counsel referred to Re Tiburcy [2024] VSC 163 at [91] (per Fox J).
[30]Counsel referred to Re Tiburcy [2024] VSC 163 at [92] (per Fox J), citing Ali El Nasher v DPP [2020] VSCA 144 at [51] (per Priest, T Forrest and Weinberg JJA).
Mx Rattray submitted that SS’s history clearly indicates that he poses a risk of endangering the safety and welfare of any person. After all, he has committed offences while on bail three times previously in recent years, and he is now alleged to have done so a fourth time.
In Mx Rattray’s submission, this risk is unacceptable for two reasons. First, it is said that there appears to be a high likelihood that SS will commit further offences. Secondly, it is submitted that there is a high likelihood that the offending will be serious. Mx Rattray submitted that SS’s alleged threats to kill on this occasion, when made with additional comments about knowing the complainant’s home address (as corroborated in his police interview), indicate that he would pose a significant danger to the safety and welfare of the complainant were he granted bail. As was also pointed out, these grave alleged threats were repeated several times.
Mr Pearson submitted that, while SS’s history on the supervision order cannot sensibly be said to have been exemplary, it has not been disastrous either. Significantly, in his submission, while the threats to kill were allegedly made on 29 February, SS remained in the community without any repetition of the behaviour or any follow up with the complainant in the three weeks before he was arrested. Further, if bailed, he would continue to live in the community under the strictures of his supervision order, which would include close monitoring of his movements via an electronic ankle bracelet and a high level of monitoring of his condition via the various appointments he is required to attend with those attuned to detecting deterioration in his condition.
While I accept that SS’s criminal history shows that there is a risk that, if bailed, he would endanger the safety or welfare of another person, I am not satisfied that that risk is unacceptable. It must be remembered that, as frightening as the alleged threats may have been, they were not accompanied by any actual violence. The same is true of much of his behaviour in recent years. Further, as Mr Pearson pointed out, there is no suggestion that SS sought to make good on his alleged threats. Finally, he will be subject to the protective strictures involved in his supervision order, compliance with which I intend to make a condition of his bail.
It is for these reasons that I am not satisfied that, if bailed, SS would present an unacceptable risk of endangering the safety or welfare of others.
Conclusion and orders
Accordingly, I am persuaded that bail must be granted.
I shall order that SS be bailed on his own undertaking on the following conditions:
1)SS is to reside at [redacted];
2)SS is to comply with the conditions of the supervision order made by the Court on 28 April 2023;
3)SS is to appear at the Magistrates’ Court at Moorabbin on 20 May 2024 at 9:30 a.m. and as directed by that Court thereafter; and
4)SS is to appear at this Court on 22 May 2024 at 9:15 a.m.
---
0
4
0