Re Ss
[2023] VSC 712
•28 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0259
| Between: | |
| SS | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27 & 28 November 2023 |
DATE OF ORDERS: | 28 November 2023 |
DATE OF WRITTEN REASONS: | 30 November 2023 |
CASE MAY BE CITED AS: | Re SS |
MEDIUM NEUTRAL CITATION: | [2023] VSC 712 |
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CRIMINAL LAW — Application for bail — Charges of using methylamphetamine, breaching condition of supervision order, offending while on bail, and resisting arrest — Five police officers went to applicant’s home to arrest him for breaching supervision order by using methylamphetamine — Applicant resisted physically when, while bleeding from the nose, he was not allowed by police to take unknown tablet — Applicant indicates plea of guilty to resisting arrest but not guilty to charges based on use of methylamphetamine — Applicant on bail for charge of breaching condition of supervision order — Extensive criminal history — Applicant in custody for over a month since arrest — Short delay until potential guilty plea on resist charges, but significant delay until contested hearing on charges based on use of methylamphetamine — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of offending and endangering safety of others — Delay until final resolution of charges likely to exceed length of total prison sentence, if convicted — Exceptional circumstances established — Strictures of supervision order reduce risk of offending so as not be unacceptable — Bail granted on own undertaking with condition to comply with supervision order — Serious Offenders Act 2018 (Vic), ss 169 & 173‑175; Drugs, Poisons and Controlled Substances Act 1980 (Vic), s 75; Bail Act 1977 (Vic), s 30B; Crimes Act 1958 (Vic), s 31(1)(b); Summary Offences Act 1966 (Vic), s 51(2); Criminal Procedure Act 2009 (Vic), s 413; Sentencing Act 1991 (Vic), ss 10AB & 10A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | Balmer & Associates Pty |
| For the Respondent | Ms R Champion | Office of Public Prosecutions |
HIS HONOUR:
Overview
On 28 November 2023, when delivering my reasons ex tempore on this application for bail, the applicant SS’s elderly mother tripped and fell face‑first onto the floor of the Court. Quick as a flash, SS rushed to his mother’s aid, as did others in the Court. Understandably, SS and his mother appeared distressed, as we all were.
In those circumstances, instead of continuing with my reasons, I considered it preferable to stop, to make an order granting bail on the spot (as I had foreshadowed), and to defer giving my complete reasons in writing at a later date. Ms Champion, who appeared for the Director of Public Prosecutions, and Mr Pearson, who appeared for SS, agreed with this course. These are those reasons (which I shall leave largely in the present tense, as if delivered when the order was made).
Background
SS was arrested on 26 October 2023. His application for bail the next day was refused in the Magistrates’ Court. He has remained in custody ever since — so, for just over a month.
The charges on which he seeks bail in this Court are as follows:
(a) an indictable offence of contravening a condition of his supervision order between 20 and 24 October 2023 by using methylamphetamine;[1]
[1]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
(b) another indictable offence of contravening a condition of his supervision order on 26 October 2023 by committing an offence referred to in Schedule 3 of the Serious Offenders Act 2018 (Vic), namely by resisting emergency workers on duty;[2]
[2]Contrary to s 169(1) of the Serious Offenders Act 2018 (Vic).
(c) a summary offence of using a drug of dependence (methylamphetamine);[3]
[3]Contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1980 (Vic).
(d) a summary offence of committing an indictable offence while on bail, namely contravening his supervision order;[4] and
(e) five indictable offences of resisting an emergency worker on duty[5] and, in the alternative, five summary offences of resisting an emergency worker on duty.[6]
Alleged offending
[4]Contrary to s 30B of the Bail Act 1977 (Vic).
[5]Contrary to s 31(1)(b) of the Crimes Act 1958 (Vic).
[6]Contrary to s 51(2) of the Summary Offences Act 1966 (Vic).
Background
The alleged offending occurred against the following background.
In 2019, pursuant to the Serious Offenders Act, 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, which is a secure treatment facility. Following a hearing conducted earlier in the year, in April, I rejected an application to renew that condition. As it did originally, the supervision order still contains a condition prohibiting SS from using illicit drugs, and numerous other conditions and prohibitions. The order is due to expire in August 2025.
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, to 21 days’ imprisonment for a breach of a condition of the order by removing his electronic monitoring bracelet.[7] I shall not repeat that information here.
[7]See DPP v SS [2023] VSC 631.
Summary of alleged offending
In short, the charges are based on the following allegations. This summary is taken from the written police summary before the Court and from the viva voce evidence I heard from the informant, Detective Leading Senior Constable Glyn Crossland.
On 24 October 2023, pursuant to his supervision order, SS was directed to attend for urinalysis, which he did without any problem. On 26 October, the results of testing indicated that he had used methylamphetamine.
Later the same day, five members of the Supervision Order Specialist Response Unit (“SOSRU”) went to SS’s residence to arrest him for breaching a condition of his supervision order by using methylamphetamine.
Detective Acting Sergeant Lyndall Adonis knocked on the front door. SS answered. He had a blood nose. Initially, he sat on his front step and tried to stop his nose bleeding. Detective Adonis told him he was under arrest and that a pat down search would be required. SS went to his car to get tissues for his blood nose, and his phone charger. When he got to his car, he did find some tissues, and managed to stop one nostril from bleeding.
While still at the car, he then grabbed a blister pack of unknown medication and tried to take a single tablet. Detective Adonis, however, told him he could not take the tablet because police had not spoken to a nurse or a doctor to approve the medication. She took the blister pack from him, whereupon SS became agitated and yelled at her to give him the tablet. SS then sat in the driver’s seat, putting his foot against the door frame, and said he was not getting out of the car.
Detective Adonis told him he was under arrest and needed to exit the car. He refused. She told him to get his foot off the door, and pushed his leg down. SS continued to yell, refused to get out, and leaned further into the car. Three other officers then reached in to take SS out of the car, but he continued to resist. Another officer held an OC spray near SS and threatened to deploy it unless he got out. All five officers together then removed SS from the car. He continued to resist and be abusive both before and after he was handcuffed (with his hands together behind his back) in the driveway. He was then forcibly moved to the garage and was sat upon a table. He continued to be abusive to police.
Two uniformed officers, who had been called earlier, arrived in a divisional van. SS was held down on his back on the table while the van was parked near the garage. Then police stood SS up and moved him into the back of the van, which was then locked. While in the van, SS kicked at the doors.
He was deemed unfit for interview because of concerns for police safety.
Tests for bail
There was agreement between the parties that, in order to be granted bail, SS had to establish exceptional circumstances justifying bail. Further, it was accepted that, if that hurdle were cleared, bail would be granted unless the Director established that, if released on bail, there would be an unacceptable risk that SS would commit an offence and thereby endanger the safety or welfare of the public.
Difficulties arising out of the state of the prosecution
This application commenced yesterday afternoon. After hearing evidence and submissions, I adjourned the matter until today so that the parties could consider their respective positions on important issues raised by the application. As will be seen, this afternoon, Ms Champion explained that the Director now proposes to make significant changes to the prosecution case. Those changes, which I shall explain shortly, came about against the following background.
Initially, pursuant to ss 173 and 175 of the Serious Offenders Act, all of the charges (except those alleging the summary offence of resisting an emergency worker on duty, which had not been laid at that point) were transferred to this Court.
On 2 November, however, pursuant to s 413 of the Criminal Procedure Act 2009 (Vic), Judicial Registrar Freeman — correctly, in my view — transferred the five charges of the indictable offence of resisting an emergency worker on duty back to the Magistrates’ Court. He did so because those charges were incorrectly transferred here in the first place, as this Court had no jurisdiction to hear them by means of the transfer procedure under the Serious Offenders Act.
On 13 November, the five charges of the summary offence of resisting an emergency worker on duty were issued in the Magistrates’ Court. The five charges of the indictable version of the offence were reissued at the same time.
Thus, as things stand, all of the charges of resisting an emergency worker on duty are to be heard in the Magistrates’ Court. The remaining charges, including the two charges of breaching a condition of the supervision order, are to be heard in this Court.
This bifurcation of proceedings across two separate courts gives rise to some potential difficulties that come to light when the following matters are considered.
First, as framed, proof of the second charge of breaching a condition of the supervision order depends upon SS first being found guilty of, or pleading guilty to, one or more of charges of the offence of resisting an emergency worker on duty.
Secondly, if SS were found guilty of, or pleaded guilty to, that second charge of breaching the supervision order, a question would arise as to whether, within the meaning of s 10AB(2) of the Sentencing Act 1991 (Vic), this Court was satisfied, beyond reasonable doubt, that SS “intentionally or recklessly contravened a restrictive condition of the supervision order”. If the Court were so satisfied, then s 10AB(1) would require that a term of imprisonment of not less than 12 months be imposed for such an offence, unless it was found, under s 10A of that Act, that a special reason existed.[8]
[8]Circumstances in which a court may make a finding that a special reason exists include where the offender had impaired mental functioning that was either causally linked to the commission of the offence and which substantially and materially reduced his or her culpability or that would result in him or her being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, or where there are substantial and compelling circumstances that are exceptional and rare and that justify doing so. See s 10A(2)(c) and (e) of the Sentencing Act 1991 (Vic).
Thirdly, as presently advised, there are also unresolved antecedent questions of law as to whether either the indictable or the summary versions of the offence of resisting an emergency worker on duty fall within Schedule 3 of the Serious Offenders Act. If the offences of which SS were found guilty did not fall within Schedule 3, there could not be a breach of a “restrictive condition” of the supervision order, thereby denying the potential operation of the mandatory sentencing provision in s 10AB of the Sentencing Act.[9]
[9]Section 31(3) of the Serious Offenders Act provides that a core condition of a supervision order is that an offender must not commit an offence referred to in Schedule 3. Condition 6.3 of SS’s supervision order reflects that core condition. In s 3, a “restrictive condition” is defined as meaning, inter alia, a core condition referred to in s 31(3). Item 1 of Schedule 3 is headed “Additional offences not to be committed as core conditions of supervision order”. Item 1 of the schedule lists “[a]n offence against any of the following sections of the Crimes Act”, and paragraph (o) of that list refers to “section 31 (assaults)”. Mr Pearson argued that this reference to “assaults” means that the provision picks up only assaults under s 31, and not the offence of resisting an emergency worker on duty. Ms Champion disagreed, and submitted that “assaults” is used in that paragraph as a catch‑all description, in the same way the term is employed in the heading to s 31 in the Crimes Act. Item 10 of Schedule 3 provides: “An offence … the necessary elements of which consist of elements that constitute an offence of a kind referred to in this Schedule”. Ms Champion suggested it may be arguable that the summary offence of resisting an emergency worker on duty is caught by Item 10, whereas Mr Pearson submitted that it is not so arguable. The argument on these questions of construction was not completed, because, as will be seen, it became unnecessary to determine them.
In my view, these matters give rise to the following difficulties.
First, the determination in this Court of the proceeding for the second charge of contravening a condition of the supervision order would have to await the determination in the Magistrates’ Court of the charges of the offence of resisting an emergency worker on duty. That is an unsatisfactory state of affairs, and should be avoided, if it can be. It would be preferable if the one court dealt with all charges, and at the one time.
Second, assuming the Magistrates’ Court found SS guilty of one or more offences of resisting an emergency worker on duty, and assuming (without deciding) the relevant offence or offences fell within Schedule 3 of the Serious Offenders Act,[10] thereby amounting to a breach of a restrictive condition, then this Court would have to determine whether SS “intentionally or recklessly contravened a restrictive condition of the supervision order” so as to determine whether the mandatory sentencing provision in s 10AB might apply.
[10]See the previous footnote.
Third, for a number of reasons, including the comparatively modest gravity of all of the alleged offences, and SS’s personal circumstances, it strikes me that this is not case in which it would be appropriate to subject him to the possibility of a mandatory term of at least 12 months’ imprisonment.
Finally, whether s 10AB applied or not, there would be a high risk of a rather difficult sentencing conundrum arising in this Court. This is because, on the foregoing assumptions, the Magistrates’ Court would have sentenced SS already for the offence or offences (whether indictable or summary) of resisting an emergency worker on duty. That sentence may or may not have been completed by the time the inextricably linked charge of contravening a condition of the supervision order was heard and determined in this Court. Yet the sentence in the Magistrates’ Court would have to be taken into account in some fashion by this Court if and when sentencing on the offence of contravening a condition of the supervision order, and when sentencing on the other related offences as well (assuming findings of guilt on all matters). That, again, would be a very unsatisfactory state of affairs.
Thus, whatever view might be taken about the third of my concerns, in view of the first two and the fourth, it would be far more preferable for the one court to hear, determine and, if necessary, sentence SS on all charges at the one time.
That preferable approach could be achieved in this way. Given that each of the charges of the summary offence of resisting an emergency worker on duty is a charge for a “related offence” within the meaning of that term in s 175(1) of the Serious Offenders Act, it would be open, pursuant to s 175(3), to have those charges transferred to this Court, so that they could be heard here summarily at the same time as the two contravention of supervision order charges, as well as the related charges for offences of using methylamphetamine and offending while on bail. (This would mean that the charges of the indictable offence of resisting an emergency worker on duty would be withdrawn.) If this approach were taken, it would eliminate the difficulties I have identified were there to be separate hearings in the Magistrates’ Court and this Court.
A sensible resolution
Upon the resumption of the hearing of the application this afternoon, Ms Champion advised that the Director has chosen to take a course that accommodated all of the foregoing concerns. Mr Pearson advised that SS was agreeable to that course. In particular, Ms Champion advised that the following things would occur.
(a) Bearing in mind that the charges presently before this Court are listed for mention on 14 December, the Director would seek to have the next mention hearing in the Magistrates’ Court abridged from 15 December to a date before 14 December.
(b) At that mention hearing, the five charges alleging indictable offences of resisting an emergency worker on duty would be withdrawn. Further, pursuant to s 175 of the Serious Offenders Act, the Director would seek to have the five charges alleging summary offences of resisting an emergency worker on duty transferred to this Court to join the other charges already before it. This would mean that there would be no longer any proceeding before the Magistrates’ Court.
(c) Once that occurred, in this Court, the Director would withdraw the second charge of breaching a condition of the supervision order (by committing an offence in Schedule 3). This would mean that SS could no longer be subject to the mandatory 12‑month sentence provided for by s 10AB of the Sentencing Act.
(d) As Ms Champion explained, s 176(2) of the Serious Offenders Act allows for the determination by this Court of charges for summary offences transferred under s 175 notwithstanding the discontinuance of a charge for contravention of a supervision order to which those charges relate, as will occur here.
(e) This, then, would leave eight charges before this Court, namely:
(i) the indictable offence of contravening a condition of his supervision order by using methylamphetamine;
(ii) the summary offence of using methylamphetamine;
(iii) the summary offence of committing an indictable offence while on bail, namely contravening his supervision order; and
(iv) the five summary offences of resisting an emergency worker on duty.
In my respectful opinion, this is a sensible and appropriate course for the Director to take.
As Ms Champion explained, this intended course changes the circumstances of this bail application considerably. On the one hand, there would be unlikely to be the same considerable delay that would apply if there had to be a separate hearing and determination in the Magistrates’ Court of the charges of resisting an emergency worker on duty before a hearing and determination of the other charges in this Court. On the other, there is no longer any possibility that the mandatory 12‑month sentence would be imposed because s 10AB of the Sentencing Act can no longer apply to sentencing upon any conviction of the second charged offence of contravening a condition of the supervision order.
Mr Pearson explained that there were other changes relevant to the bail application. First, he indicated that, whether it concerned all five charges or a rolled‑up charge in relation to all five police officers, which is a matter still to be settled with the Director, when the summary charges of resisting an emergency worker on duty come before this Court, SS will enter a plea of guilty.
Secondly, Mr Pearson indicated that, presently, SS intends to plead not guilty to the charges that turn on the use of methylamphetamine — namely, the use charge itself, the related charge of breaching the supervision order by such use,[11] and breaching bail by committing the latter offence. SS instructs that he did not take methylamphetamine. To that end, he wishes to have the second urinalysis sample analysed separately, and will instruct his lawyers to apply to Victoria Legal Aid (“VLA”) for funding to allow that to occur.
[11]While he did not say so in terms, I took Mr Pearson to imply that SS would seek a summary hearing of the charge of the indicatable offence of contravening a condition of his supervision order, at the same time as the using methylamphetamine charge and the breach of bail charge. I took Ms Champion to understand that to be the case too.
Bail application still pressed
In those circumstances, SS pressed on with his application for bail, which the Director resisted.
Ms Champion also called Adrian Coburn, the operations manager of the Post Sentence Branch, to explain the various programmes to which SS would have access if he remained in prison and those to which he would have access, and which he would be compelled to attend, were he released on bail.
While the circumstances have changed in the ways I have mentioned, counsel agreed that the same two tests for determining the application are still applicable.
Exceptional circumstances?
I turn first to the question of whether SS has established exceptional circumstances.
Mr Pearson’s principal submission is that the likely delay until the final hearing and determination of these matters will mean that there is a likelihood that SS will have served more time in custody than the custodial component of the sentence to be imposed if convicted of all offences. He submits that it would be open to conclude the month or so SS has already spent in custody would be a sufficient — or close to a sufficient — prison sentence for all offences. When, added to this, there will be a delay until a contested hearing on the drug‑related charges, which could be months away, there is a very high chance that, if not bailed, SS would spend significantly more time in custody than any prison sentence likely to be imposed. Thus, the failure to grant bail would amount to preventative detention.
Ms Champion resisted that submission. She pointed out that it is not yet clear whether VLA will extend funding to test the sample. If they do not extend funding, then there might not be a contested hearing, but a plea of guilty instead, and there might not be much delay in consequence. Further, while Ms Champion made it clear that she was not submitting that this was a serious example of resisting arrest, I understood her to submit that, when all charges were considered, as well as SS’s prior criminal history, including for breaching the supervision order, a heavier sentence might be expected, which might not exceed the delay until final determination.
In substance, I accept that, at present, there is a real prospect that there will be a summary contest on the charges that depend upon the drug analysis. That contest could not be heard until next year — probably not for another three months or more. There is also the month or so SS has already spent in custody. In those circumstances, I am satisfied that there is a real prospect that, even if found guilty of the drug‑related charges at a contested hearing, the resulting sentence, when combined with the likely sentence on a plea of guilty to the offences of resisting emergency workers on duty, would fall short of the period he would be likely to spend in custody before sentence if not bailed. Thus, in my estimation, to deny SS bail at this point would amount to a form of preventative detention. This would be a very unsatisfactory state of affairs.
While Mr Pearson relied on other matters in support of this aspect of the test for bail, in my judgment, the likelihood that, if not bailed, SS’s time in custody would be likely to exceed the total sentence imposed on him were he convicted of all charges is by itself sufficient to amount to exceptional circumstances justifying bail.
Unacceptable risk?
I turn now to the question of unacceptable risk.
Ms Champion submitted that there was an unacceptable risk that, if bailed, SS would commit further offences and thereby would endanger the public. In support of this submission, Ms Champion emphasised the following matters, among others.
First, SS has extensive prior convictions, including for his past breaches of the current supervision order.
Second, the current offences are alleged to have been committed within a week of the sentence I imposed on 20 October for breaching his supervision order.
Third, SS presents a greater risk of offending when drug‑affected, and testing indicates he had taken methylamphetamine on or before 24 October.
Fourth, his behaviour when resisting police was very aggressive and abusive.
Fifth, SS has offended in the past notwithstanding the strictures of the supervision order.
Sixth, the evidence of Mr Coburn showed that, while SS has engaged in drug assessment and treatment, there has not been a meaningful level of engagement since his release from Rivergum.
Seventh, he was on bail at the time of the current alleged offences.
Mr Pearson submitted that the following factors go to both exceptional circumstances and as meeting the argument that SS is an unacceptable risk of offending while on bail.
First, the strictures of his supervision order offset the risk of offending. Those strictures include electronic monitoring via an ankle bracelet, a curfew, compulsory testing for illicit substances when suspicions of drug‑taking occur, and various programmes designed to address drug and alcohol problems and offending behaviour.
Second, notwithstanding the evidence of Detective Crossland suggesting SS does not spend much time with his elderly mother, and that he is not formally her carer, there is evidence that he does spend time with her, and there is no dispute that she is intellectually disabled and that he does care for her. I accept that is so.
Third, Mr Pearson submitted that, while SS’s progress in the community since being released from Rivergum in April has not been without problems, it has not been abject. I understood Mr Pearson to add that, in assessing both his alleged criminality and his compliance with the supervision order, I should have regard to the fact SS has an acquired brain injury as a result of being assaulted in custody, as well as a complex array of mental health and personality issues. Thus, while SS is alleged to have breached his curfew in May (which is a contested matter), there were no reported problems from May until 29 September, when he was remanded in custody for three weeks for removing his electronic monitoring bracelet, for which I sentenced him on 20 October. Pursuant to his supervision order, SS continues to live at his premises, to report when required, and to accept supervision. He has been working with Corrections on finding employment, including the possibility of opening a shop selling clothes. Finally, he has not committed any serious violent offences while subject to the supervision order.
For the reasons urged by Ms Champion, I accept that there is some risk that, if bailed, SS would commit further offences. However, I do not accept that that risk is an unacceptable risk. I am persuaded that the matters raised by Mr Pearson tend to offset that risk. The conditions of the supervision order are very strict. While SS has breached them on occasions in the past, I am satisfied that the risk of his doing so by further offending is not at an unacceptable level. Finally, another factor in my assessing whether the risk of reoffending is unacceptable or not is the prospect that, were he not bailed, there is a likelihood SS would be spending time in custody beyond the likely sentence to be imposed were he convicted.
Ms Champion advised that, were I minded to grant bail, the only condition sought by the Director would be one directing SS’s compliance with his supervision order.
Conclusion and order
It is for these reasons that I am satisfied that the application must succeed.
Accordingly, I order that SS be admitted to bail upon his own undertaking and with the conditions that he: (a) comply with the conditions of his supervision order; (b) appear at this Court for mention on 14 December 2023 at 10:30 a.m.; and (c) appear at the Magistrates’ Court at Melbourne for mention on 15 December 2023 at 9:30 a.m.
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