Re Ss
[2020] VSC 618
•23 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0237
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by SS |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 21 and 22 September 2020 |
DATE OF JUDGMENT: | 23 September 2020 |
CASE MAY BE CITED AS: | Re SS |
MEDIUM NEUTRAL CITATION: | [2020] VSC 618 |
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CRIMINAL LAW – Bail – Applicant on supervision order (‘SO’) under Serious Offenders Act 2018 after completion of sentence for murder – Condition of order that applicant comply with any direction given by Post Sentence Authority (‘PSA’) in respect of the operation of any condition – Direction by PSA to applicant not to record supervision and treatment sessions – Following repeated warnings, applicant allegedly taped numerous sessions – Prior conviction for breaching condition of SO prohibiting use of drugs – Hearing of charges to be adjourned pending preparation of full brief of evidence – Pending proceedings for other alleged breaches of SO and review of SO - Delay – COVID-19 – Personal circumstances indicative of some instability in life of applicant – Level of compliance with SO – Compelling reason not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri | Victoria Legal Aid |
| For the Respondent | Ms C Parkes | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of 11 charges of contravening the conditions of a supervision order and two charges of committing an indictable offence whilst on bail.
It is agreed between the parties that I must refuse bail unless the applicant satisfies me that a compelling reason exists that justifies the grant of bail. This is because the applicant was on a supervision order at the time of the alleged offending,[1] and also because he was on bail for another indictable offence at the time.[2]
[1]Bail Act 1977, Schedule 2, item 28.
[2]Ibid, item 1.
Background
The applicant was convicted of murder in 1998 and received a long term of imprisonment. On 23 August 2019, shortly before his term of imprisonment was to expire, I made a supervision order (‘SO’) for six years under the Serious Offenders Act 2018. The SO included conditions prohibiting the use of drugs of dependence and to submit to testing, imposing a curfew, and requiring compliance with electronic monitoring. There was also a condition authorising the Post Sentence Authority (‘PSA’) to give directions to the applicant in relation to the operation of any condition of the SO, and requiring the applicant to comply with any such direction.
As a result of events which occurred from the time of the commencement of the SO, the Secretary to the Department of Justice and Community Safety (‘the Secretary’) applied for a review of the SO. That review was due to come before the Court today, but will now not proceed until a date to be fixed in the near future. The Secretary will seek a variation of a number of conditions, and centrally, to have a condition varied to require the applicant to reside in a residential treatment facility, Rivergum.
In addition to the current allegations against the applicant regarding breaches of conditions of the SO, there are earlier breaches alleged, which were listed to be heard on 21 and 22 September 2020. Most of these charges have been brought by the Secretary and concern allegations of failing to submit to urinalysis and comply with the curfew. A further charge of failing to comply with the curfew is brought by Victoria Police. The informant for that matter is Senior Constable Park.
The alleged offending
On 7 May 2020, the PSA gave directions to the applicant that he must not record supervision sessions with a community correction officer or treatment sessions. In an audio-visual supervision session on 11 May 2020, the new directions were read out and carefully explained to the applicant. There was further verbal explanation to the applicant of the directions on 10, 11, and 12 June, 9 July, and 13 August 2020. The new directions were sent by email to his solicitor on 6 August 2020.
Police ascertained that the applicant was in possession of two mobile phones. This information was relayed to Corrections Victoria, who on 27 August 2020, seized a Huawei P 30 Lite mobile phone and a micro SD, Scan Disk 128 GB storage device. The phone was audited and a large number of downloads were located, including images, calls and recordings. It was ascertained that from 7 May 2020, the date the directions were given, there were numerous recordings of supervision and treatment sessions involving the applicant, in apparent contravention of the directions. A further analysis of the material is ongoing, and it is expected further charges will be laid.
It is alleged in the current charges that on numerous dates in July and August 2020, the applicant recorded sessions contrary to the directions. Charges 12 and 13 allege the commission of the above offending while the applicant was on two separate grants of bail, one relating to a charge of theft from a shop, and the other concerning the earlier laid charge laid by Senior Constable Park of breaching a condition of the SO.
The applicant was arrested on the current offending on 18 September 2020 and conveyed to Springvale Police Station for interview. He made full admissions to having recorded the sessions, but disputed that he had been correctly served with the applicable PSA directions.
The applicant was brought before Dandenong Magistrates’ Court on 18 September 2020. He made an application for bail, which was refused on the basis that he had not established a compelling reason. He was remanded in custody to appear in this Court.
Personal background and criminal history
The applicant is now aged 41, and was imprisoned from the age of 19 until his release on 25 August 2019. He was raised by his mother and does not have contact with his father. Growing up, the applicant faced a difficult childhood including physical abuse by his grandfather, the death of his younger brother, witnessing the drowning of a friend, and multiple expulsions from school for delinquency. He engaged in persistent criminality from a very young age. The applicant abused illicit substances including cannabis and heroin from the age of 12 years and resorted to crime to support his habit. He attended numerous high schools and was educated until year nine when he was expelled. In his late teens, he completed year 11 through a TAFE program. Whilst incarcerated he commenced a Bachelor of Arts degree and obtained numerous prison course certifications.
Prior to the murder upon which he received a sentence of imprisonment, the applicant had accrued an extensive criminal history, predominately for matters dealt with in the Children’s Court, from the age of 11 until his incarceration at 19 years old. This history covered a variety of offending, including offences involving dishonesty, driving, drugs, weapons and violence, including against police officers.
The murder itself occurred on 15 December 1998, in the context of an extensive spree of criminality in which the applicant had engaged over the preceding two days. While on the run and under the influence of drugs, the applicant attended inside a secondary school, obtained a knife from within the Principal’s office, and then, while seeking to evade apprehension, stabbed a teacher’s aid to the side of the head with the knife, causing a serious brain injury which led to his death.
Before Teague J in this Court, the applicant pleaded guilty to numerous charges, but pleaded not guilty to murder, disputing murderous intent. He was found guilty by the jury, and sentenced by Teague J on 4 July 2000 on all of the charges to a total effective sentence of 20 years with a non-parole period (‘NPP’) of 15 years.
The applicant was released twice on parole, the first time shortly after the expiry of the NPP. On each occasion, parole ended upon being revoked, and the applicant returned to custody. In the end, he served the entirety of the head sentence before his release.
The law
In applying and interpreting the Act, the Court is required to have regard to the guiding principles set out in s 1B of the Act, which include a recognition by Parliament of the importance of matters including maximising community safety to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act dictates that a person is entitled to be granted bail ‘unless the bail decision maker is required to refuse bail by this Act’. In a number of situations set out in the Act, the law dictates that bail must be refused unless the bail decision maker is satisfied of the existence of either exceptional circumstances or a compelling reason that would justify the grant of bail.
The compelling reason test applies in this case. Pursuant to s 4C(1A) of the Act, the Court is required to refuse bail unless ‘satisfied that a compelling reason exists that justifies the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of a compelling reason. In considering whether a compelling reason exists, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of a compelling reason, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
i. endanger the safety or welfare of any person; or
ii. commit an offence while on bail; or
iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or
iv. fail to surrender into custody in accordance with the conditions of bail.
The respondent would bear the burden of proof in respect of the unacceptable risk test if that test arises for consideration. In considering the test, again, the Court would be required to take into account the surrounding circumstances pursuant to s 3AAA. The Court would also be required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
Meaning of compelling reason
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:[3]
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.[4]
[3][2019] VSCA 214.
[4]Ibid [43].
The evidence
There was a good deal of material before the Court in the bail application, including the remand brief in relation to the current offending, and material which has been filed in respect of the review proceeding to come, including the expert report of Dr Rachel McKenzie, Clinical Psychologist. It was acknowledged that I would be entitled to have regard to the contents of that report for the purposes of this application.
In addition, two witnesses were called by the respondent.
Detective Senior Constable Meta Vincent, the respondent, gave evidence supplementing her remand summary which appeared on the brief. She was asked why she considered the applicant to be an unacceptable risk of reoffending, and said the following:
So his engagement in his treatment has been inhibited by his recording. I guess that’s something that Corrections can probably speak to, but he’s continued to commit offences while he’s currently on bail or awaiting trial for previous offences. He’s shown a complete disregard for the COVID restrictions, returning home in excess of an hour late every night and this has been relayed to him on numerous times. Just his unstable presentation when dealing with any authority or difficult challenges presents as a problem.[5]
[5]Transcript 8.
The respondent was cross examined by Mr de Vietri about a number of issues, including the extent to which the applicant had actually made progress on the SO. I will not summarise the evidence but I have taken it all into account.
Anthony Calandro, the Acting General Manager of Operations at the Post Sentence Branch, gave evidence before me. The Post Sentence Branch is the branch of Corrections Victoria that manages the day to day management of all post-sentence offenders in the state.
Mr Calandro described the applicant’s overall compliance with the SO as poor. He had breached the order in January this year by testing positive to drugs. Since then, further charges had been laid and he had appeared before the PSA on four occasions, on which he had been encouraged to comply with conditions of his order, to little effect. As an illustration of the lack of compliance, he was given a formal warning by the PSA in June about his breaches of curfew, and having agreed to comply in future, was late home that very evening. Also concerning had been his level of engagement with supervision. He was constantly late for appointments, and when he did attend, he was frequently verbally abusive and rude to staff. He had had to change clinicians due to his ongoing disruptive behaviour and verbal aggression. He had also been frequently late for his appointments with the Forensic Intervention Service.
Mr Calandro summarised the unsatisfactory situation with the applicant’s accommodation. Emergency accommodation had been provided for him by the Australian Community Support Organisation (‘ACSO’). The applicant had refused to contribute to rent or to engage with ACSO and Corrections in seeking alternative accommodation, apparently considering that it was the responsibility of Corrections to find him somewhere to live. He had refused to keep the property clean and had even refused the support of a cleaner. As a result, the house is in a squalid state. Mr Calandro stated that there were serious concerns as to where the applicant would live after 30 September 2020 when he would be required to vacate his current home.
In terms of risk, Mr Calandro stated that in light of the history of the applicant on the SO, and his previous parole history, he was concerned that the applicant would continue to fail to comply. In light of the expert report of Dr McKenzie which highlights the risk of the applicant committing a serious violence offence, the current behaviour he was displaying in breaching the conditions of his order was concerning.
Mr Calandro was cross examined by Mr de Vietri. I will not summarise the cross examination, but again, indicate that I have taken the full evidence into account.
Applicant’s submissions
In his very well organised submissions, Mr de Vietri, for the applicant, relied upon a combination of seven factors in proof of a compelling reason that would justify the grant of bail, some of which he submitted would, on their own, be sufficient to get over this hurdle. They were, as follows:
i. Delay. It was submitted that there is a real risk that the applicant would spend more time on remand awaiting trial than he would be likely to receive as a sentence should he be found guilty. The contested hearing of the charges would not proceed for some months. In view of the relatively modest nature of the offending, of which more will be said shortly, it is very unlikely, submitted Mr de Vietri, that the applicant would receive a custodial sentence, or at least, one which would exceed the time on remand. This was relied upon as being a very important consideration, reference being made to the decision of Beach JA in Re Johnstone (No 2).[6]
[6][2018] VSC 803.
The ‘contestability’ of the charges. Mr de Vietri submitted that it should not be assumed that the prosecution case is a ‘lay-down misere’. He did not assert that the case is weak, but nor should it be viewed as being strong, or even reasonably strong. As conceded in the evidence of the respondent, some charges would certainly fall away, and as to the remaining charges, there would be an issue as to whether the directions given were within the power of the PSA to give. The case should be viewed through the prism of the presumption of innocence, as made clear by s 1B of the Act.
The onerous nature of conditions of custody due to COVID-19. On that score, Mr de Vietri pointed out that beyond the matter of delay, there were a number considerations raised by the pandemic in respect of people in custody. No visitors are allowed, there is a period of 14 days quarantine which the applicant is currently undergoing, there is the prospect of future lockdowns, and overall, the applicant is in an isolated situation. This is particularly so as he would be unable to maintain personal contact with his mother, and unable to continue to repair this relationship. Secondly, COVID-19 is impeding opportunities for educational, rehabilitative and recreational pursuits in custody. Thirdly, being in custody in the current regimen, on the eve of the hearing of the breach proceedings and the proceeding for the review of the SO, will make the proper preparation of those matters exceedingly difficult, in a number of ways spelt out by Mr de Vietri.
Nature and seriousness of the alleged offending. Mr de Vietri submitted that what was alleged against the applicant should be viewed in light of the fact that he is a person who recently emerged from prison after a 20 year sentence, suffering from a borderline personality disorder, and finding it difficult to navigate personal relationships properly. The nuisance-type offending alleged is very different from the index offending, and the Court should not confuse the risk of this type of low-level offending with the risk of his committing a serious violence offence. In support of this point, Mr de Vietri took me to a number of passages in the report of Dr Darjee.[7] Whilst not asserting the offending was trivial, Mr de Vietri submitted it was not particularly serious. The accused recorded the various meetings openly, and for a normal member of the community, this would have been lawful behaviour. The offending was not violent, and nor was it indicative of a propensity to commit crimes of violence. On this score, Mr de Vietri reminded me of s 1B(1)(a) of the Act.
[7]Exhibit 7.
The criminal history of the applicant. Mr de Vietri acknowledged there were serious prior convictions, but urged me to focus on the history of the applicant since his release. There was one single breach of the conditions relating to drugs, and no positive tests since that time. There were other matters which were not yet proven, and a pending matter for shoplifting. There was no suggestion of new criminal offending otherwise.
The applicant’s personal circumstances. Mr de Vietri referred to a number of aspects in this regard. These included:
· the applicant’s developing relationship with his mother;
· the fact that he had taken on the care of two dogs, about whose welfare he is very concerned;
· the inroads made by the applicant in developing a pro-social relationship with his former girlfriend FR, and the way in which he had been able to handle the break-up of this relationship;
· the fact that he has accommodation available to him until 30 September, and was making steps to acquire accommodation after that time, and that if he remained in custody, he would end up being homeless even if released later;
· the fact that a remand in custody would prevent him from being able to prove his ability to live independently in the community, harming his prospects in the review application;
· the fact that the applicant has been required to deal with the SO in very difficult circumstances due to COVID-19;
· the applicant’s demonstrated capacity and drive to perform work through Airtasker; and
· the availability of services to the applicant in the community, including the services of ACSO and Caraniche, which would not be available in custody.
The special vulnerability of the applicant. On this score, Mr de Vietri relied upon the physical ill-health of the applicant, principally constituted by the serious neck injury with which he has been diagnosed, his cognitive impairment as revealed in the neuropsychological report,[8] and his mental illness as represented by his borderline personality disorder. Mr de Vietri submitted there were concerns about whether the applicant would receive appropriate medication in prison for his physical complaints, and whether he may be at risk of further injury in prison. In particular, his mental condition would make him more vulnerable than a normal person in a custodial setting. He may therefore be in a precarious situation in view of his existing physical injury.
[8]Exhibit 6.
Turning to the matter of unacceptable risk, Mr de Vietri relied on many of the above matters in showing that the respondent had failed to prove unacceptable risk. Whilst there may be some doubt as to whether he will comply with the letter of the law where the conditions of the SO are concerned, this was a long way from establishing the applicant poses an unacceptable risk, bearing in mind the gravity of requiring him to remain in custody for several months on charges for which, upon conviction, he may not even be imprisoned. Unacceptable risk is something to be determined on a sliding scale depending upon the gravity of the risk in prospect. Here, there is nothing to indicate that the applicant is at an elevated risk of committing serious violence offences as a result of the relatively modest offending alleged. Mr de Vietri took issue with Ms Parkes’ reliance in the application upon the risk assessment contained in the report of Dr McKenzie.
Respondent’s submissions
Ms Parkes, for the respondent, in her equally well-expressed submissions, took me through a number of the matters contained in s 3AAA of the Act in dealing with the surrounding circumstances of this case.
In respect of the nature and seriousness of the offending, she submitted that the offending was serious and protracted. Any failure to abide by the conditions of a SO should be viewed seriously. In this case, the offending alleged was flagrant and deliberate. The applicant had been warned repeatedly not to tape such meetings, and yet continued to engage in the conduct. The directions had been given in order to protect the integrity of the supervision and treatment meetings, an important matter. The applicant was specifically warned by the Court in January of the importance of obeying conditions of the SO. There is a maximum penalty, upon summary hearing, of 2 years’ imprisonment on each charge, and there are likely to be something of the order of 20 individual charges. The applicant faces the likelihood of a significant term of imprisonment.
In respect of the question of delay, the likely delay in this case would not exceed the sentence the applicant may receive upon being found guilty. Furthermore, if he is found guilty on the other charges to be brought against him, which will be proceeding immediately, he may not spend much time at all on remand on the current charges.
The case against the applicant is strong, submitted Ms Parkes. He made full admissions to the conduct, and the technical defence on which he will seemingly rely is an untested one.
Ms Parkes acknowledged the significance of the COVID-19 considerations, but pointed out that this is but one of the surrounding circumstances amongst many for the Court to consider.
In respect of the asserted risks facing the applicant in custody, there is no evidence in support of these risks, it was submitted. As for his health, there is no medical evidence in support of the claim of several bulging discs. In any event, there is no reason why that and any other medical problems cannot be appropriately managed in custody.
Ms Parkes pointed out that the personality disorder disclosed by the expert material is not Borderline Personality Disorder, but rather, Antisocial Personality Disorder.
Ms Parkes pointed to the lengthy criminal history of the applicant. As well as disclosing violent offending, the history shows instances of failing to comply with court orders, breaching bail, breaching parole and, importantly, a prior conviction in this Court of breaching a condition of the SO.
It is an important matter, submitted Ms Parkes, that the applicant was on two grants of bail from the Magistrates’ Court at the time of the alleged offending, one of them for offending of a similar nature to the current alleged offending.
Turning to the personal circumstances of the applicant, these disclose, submitted Ms Parkes, an overall lack of stability in his life at present. His relationship, previously considered to be a protective factor, has ended. He has no stable accommodation lined up beyond 30 September 2020. This is in spite of having been given notice to vacate as long ago as 13 August 2020. He always knew that this was short-term accommodation, and yet has been uncooperative in taking steps to seek somewhere else to live. His employment has been at best sporadic, and there are real issues whether he is even permitted to carry out this form of work in the current climate.
Turning to the risk posed by the applicant, Ms Parkes noted that both the respondent Detective Senior Constable Vincent and Mr Calandro had expressed significant concerns in respect of the applicant’s risk of reoffending. The poor compliance of the applicant with the SO was outlined by Mr Calandro, spanning a variety of contraventions charged and uncharged. All efforts by the authorities to encourage compliance had been to little effect. The concerns held by Mr Calandro that the applicant will continue to fail to comply with conditions are legitimate. Ms Parkes also referred to the risk assessment carried out by Dr McKenzie.
Ms Parkes submitted that bearing in mind the requirement in the authorities that to amount to a compelling reason, the reason in support of a grant of bail must be forceful and therefore convincing, the material in this case fell short of that.
In the alternative, submitted Ms Parkes, there was an unacceptable risk in this case of the respondent reoffending. That risk entailed a risk of reoffending in a similar manner as that alleged here, but Ms Parkes submitted that the risk of reoffending should be interpreted more broadly, particularly in light of the fact that the evidence shows the applicant to pose a high risk of committing a serious violence offence.
Analysis
The seriousness of the alleged offending must be assessed in the overall context in which it occurred. The applicant was made subject to a SO as a result of the exceedingly serious conviction for murder he had sustained as a young person, and the unacceptable risk he was found by the Court last year to pose of committing a serious violence offence if in the community and not subject to a SO. Every condition of the SO was important, as was made perfectly clear to the applicant at the time the order was made, and no doubt, on numerous occasions since then, including by me in this Court on 31 January 2020. As was said by Elliott J in the decision of Director of Public Prosecution v SM[9] to which I was referred at the time of sentencing the applicant earlier this year:
The contravention of a condition of an interim supervision order is a very serious matter. This is demonstrated, amongst other things, by the penalties such contraventions can attract under the Act.[10]
[9][2019] VSC 466.
[10]Ibid [11].
Turning to the strength of the prosecution case, the applicant made admissions to the police of having taped the treatment and supervision sessions alleged. The defence apparently to be relied upon is one focusing on whether the making of the directions in question was within the power of the PSA. I have no way of assessing the prospects of success of that defence, should it in the end be relied upon. Bearing in mind the need for circumspection by a judge in the position in which I find myself, that is, as the judge who will hear the eventual contested hearing, it would be difficult to view the prosecution case at this time as being anything less than reasonably strong, as was submitted by Ms Parkes. It is important for the applicant to understand, however, that that finding is one made solely for the purposes of my performing my duty in dealing with this bail application, and should not be taken as an indication that I have prejudged this case.
The criminal history of the applicant is significant, revealing as it does a very serious background of violence, an inclination in the applicant to ignore court orders, and a prior conviction for the same offence with which he is now charged. It shows how high the stakes are with the applicant, and the importance of the SO to which he was made subject, with all of its included conditions.
Another important matter is the fact that at the time of the alleged offending, aside from being on a SO the conditions of which he knew he was required to obey, the applicant was also subject to two grants of bail. That fact, seemingly, was not sufficient to dissuade him from ignoring the direction he had been given not to record supervision and treatment sessions. It raises a real concern as to his future willingness to abide by the conditions of a grant of bail.
The personal circumstances of the applicant point in both directions so far as bail is concerned. On some scores, his conduct since the commencement of the SO is to his credit, and a source of some encouragement. He has taken some steps to pursue pro-social activities, by way of employment, and involvement in a significant personal relationship with FR. I referred to that relationship at the time of sentencing the applicant on 31 January 2020, noting that it was a very significant matter in his life. He has sought to repair his relationship with his mother. He has taken on the responsibility of caring for a number of dogs. On the other hand, the protective influence of the relationship with FR is now at an end, the employment prospects of the applicant are not clear, and there are real concerns about the future accommodation of the applicant. He has seemingly taken an approach to this issue that his accommodation is a matter for others to arrange. On the evidence before me, it might be considered that he has not taken proper advantage of the services provided to him by ACSO and Corrections Victoria. These matters are in dispute and I do not need to ultimately decide them now. One thing, however, can be readily concluded. The applicant, as things presently stand, is in a situation of some instability, with more instability looming in the near future. The indications were of a worsening situation between the time of the first and addendum reports of Dr Rachel McKenzie on 18 March 2020 and 22 June 2020 respectively. Since then, a difficult situation has become more troubling, and all of the offending alleged against the applicant that is the subject of this application followed the addendum report.
The material before me would entitle a view that in his overall dealings with the authorities since the commencement of the SO, the conduct of the applicant has left a good deal to be desired. His engagement with and compliance with what has been required of him has been sporadic at best, perhaps a manifestation of the resentment he seemingly feels about the stringent nature of the conditions imposed upon him. I need make no definitive decision on any such matters. No doubt there may be two sides to many aspects of the story. For present purposes, however, the personal circumstances of the applicant do not hold out the promise of stability that is often such an important matter where bail is concerned.
I take into account the onerous nature of the custody presently imposed upon the applicant as a result of the COVID-19 pandemic. In his case, the suspension of personal visits has affected him, he is currently in 14 day quarantine, educational and other programs have been suspended, and he will not be able to receive the sort of treatment and services available to him in the general community. Also, now, more than ever, the ability of the applicant to have ready access to his legal advisors will be impeded.
As the Court of Appeal stated in El Nasher:[11]
As the primary judge observed in Tong, the current health crisis and its cascading effects on the criminal justice system form part of the surrounding circumstances required to be considered by every bail decision maker conducting the two step test set out in s 4AA and following of the Act. It remains just one of many factors that must be taken into account by a bail decision maker.[12]
[11][2020] VSCA 144.
[12]Ibid [42].
In respect of the asserted special vulnerability of the applicant, due to his physical and mental issues, I take these matters into account. I note the lack of evidence about the neck injury of the applicant, however, and accept the submission of Ms Parkes that the various physical complaints of the applicant should be able to be adequately dealt with in the custodial setting, in accordance with the policy of Corrections Victoria to provide a level of health care to prisoners the equal of that provided in the community through the public health system. In particular, I do not accept that the applicant would be prevented in a custodial setting from taking pain medications previously and properly prescribed for his use by a medical practitioner. Furthermore, insofar as Mr de Vietri asserted that the applicant would be more vulnerable than a normal person in custody as a result of his personality disorder, that is difficult to accept and there is no evidence which would warrant that conclusion. Sadly, the applicant is very accustomed to time in custody and no doubt has learned the skills he needed to survive the long ordeal to which he was exposed over those many years. As for the asserted risk of further injury to his neck in prison, there is no evidence which would point to that prospect, and it is notable that the applicant claimed to have attended a number of training sessions with an Australian Rules football club in the eastern suburbs of Melbourne earlier this year, before the season was put on hold due to COVID-19.
Turning to s 3AAA(1)(k) and (l), I act on the basis that there may be two or three months before the contested hearing would be able to come on before me, although I would hope that something can be done to shorten this period. This is one of those rare cases currently where the time on remand is not subject to the availability of a court to hear the matter. This matter can be listed before me at short notice, and I have invited the parties to apply their minds to that possibility.
As for the likely sentence should the applicant be found guilty of these charges, the parties were at odds about that. Mr de Vietri submitted that a term of imprisonment would be unlikely. Ms Parkes submitted that a term of imprisonment would be inevitable. It is a matter which is somewhat difficult to judge. I note that at the hearing of the plea before me on 31 January 2020, Mr Hannan for the prosecution, whilst accepting that a fine would be appropriate in that case, submitted that that day would ‘represent an end to the days where [the applicant] may be warned for any breaches of the conditions of the supervision order’.[13] Mr de Vietri told me during the plea hearing that the applicant understood that were he to breach any condition of the SO in future, he would receive what Mr de Vietri described as a short term of imprisonment.
[13]Transcript of proceedings, Director of Public Prosecutions v SS (S ECR 2020 0016, Tinney J, 31 January 2020) 8.
Neither those statements by counsel nor what I said on the matter in passing sentence bind the Court in any way, and nor should it be thought that I have in any way pre-judged this issue. In my view, however, it would be wrong for me to conclude for present purposes that the offending now alleged against the applicant may not result in a term of imprisonment. Whether it does in future remains to be seen.
This bail application occurs in the context of an ongoing struggle by the applicant to comply with the stringent requirements of a SO in a very challenging climate. The implications of the decision to be made in this application for the future course of that SO, and, more specifically, the future course of the court proceedings being faced by the applicant, are not lost on me. What I must do, of course, is decide this application in accordance with the law, and taking into account all of the surrounding circumstances of this case, many of which I have specifically referred to above.
Having carefully considered the comprehensive submissions of Mr de Vietri, and the circumstances upon which they focused, I am not satisfied that the applicant has discharged the onus resting upon him of proving the existence of a compelling reason in justification of the grant of bail. Far from compelling the conclusion that the applicant’s detention in custody is not justified, the circumstances outlined before me point to the opposite conclusion. The applicant having failed in the first step of the two step process of bail, it would be necessary for the application to be refused.
Even had the applicant succeeded in the first step, I would have been satisfied that he poses an unacceptable risk of committing an offence while on bail or endangering the safety and welfare of the public. Just because the offending alleged here may be viewed as being at a relatively low level, not pointing directly to a heightened risk of more serious offending, that does not mean that the question of the risk he poses can be confined in such a manner. To my mind, the current instability of the applicant raises the legitimate concern that he poses a risk, not only of repeated, low-level offending, but of the more serious criminality in which he has engaged in the past. Overall, I consider that the risk he poses is unacceptable, and cannot be made acceptable by the imposition of any conditions.
Conclusion
For the reasons I have stated, this application for bail must be refused.
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