Re Ss (No 2)
[2021] VSC 526
•20 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0175
| 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 |
DATE OF HEARING: | 20 August 2021 |
DATE OF JUDGMENT: | 20 August 2021 |
DATE OF REASONS | 25 August 2021 |
CASE MAY BE CITED AS: | Re SS (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 526 |
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CRIMINAL LAW – Bail – Breach of condition of supervision order – Unlawful assault – Applicant subject to a supervision order under Serious Offenders Act 2018 – Ordered to reside in Rivergum Residential Treatment Centre (‘Rivergum’) pursuant to intensive treatment and supervision condition - Alleged offending during the course of an excursion away from Rivergum for a dental appointment – Desirability of applicant returning to treatment – Secure nature of facility – Whether sufficient to ensure security and safety of applicant, other residents and staff – Whether appropriate that applicant return to Rivergum while charges pending – Only short delay until hearing of contested charges – Compelling reason not made out – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri | Marshall Jovanovska Ralph Criminal Lawyers |
| For the Respondent | Ms R Champion | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail on a number of charges he faces in respect of incidents which occurred on 9 July 2021. The charges are of contravening a condition of a supervision order pursuant to s 169(1) of the Serious Offenders Act 2018 (‘SOA’)(2 charges) and unlawful assault.
The charges of contravening a condition of a supervision order are offences contained within Schedule 2 of the Bail Act 1977 (‘the Act’), meaning that the compelling reason test applied to this application. This meant that I was required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail.
Having heard the application, I refused the application, on the basis that the applicant had failed to discharge the burden resting upon him of establishing, to my satisfaction, a compelling reason that justified the grant of bail. I indicated for completeness that even had I been satisfied of the existence of a compelling reason, I would have been satisfied that the applicant posed an unacceptable risk of endangering the safety or welfare of a person or of committing an offence while on bail.
I indicated at the time of announcing my decision that I would publish detailed reasons for the decision at a later time. These are those reasons.
Background
The applicant was convicted of murder in 2000. He was made subject to a supervision order (‘SO’) under the SOA on 23 August 2019. The order permitted the applicant to reside in the community. On a review of that SO on 8 January 2021, the order was modified to contain an intensive treatment and supervision condition requiring him to reside at Rivergum Residential Treatment Centre (‘Rivergum’). The applicant commenced residing at Rivergum in February 2021.
The current alleged offending arose on 9 July 2021 on the occasion of the applicant being transported from Rivergum to attend a dental appointment in Ararat.
The applicant was charged on that day and remanded in custody. A filing hearing was held in Ballarat Magistrates’ Court on 12 July 2021. The applicant applied for bail. Bail was refused on the basis that the applicant had failed to show a compelling reason and because the learned magistrate was satisfied there was an unacceptable risk that the applicant would endanger the safety or welfare of any person.
The matter was transferred to this Court pursuant to ss 173(6) and 175 of the SOA. The matter has been set down for a contested hearing in this Court on 1 September 2021.
The alleged offending
The circumstances of the alleged offending are set out in detail in the materials filed in relation to the application for bail. This includes the summary appearing on the preliminary brief served, and the detailed report prepared by the informant/respondent Detective L/S/C Greg Mitchell (‘the informant’).
Very briefly, on Friday 9 July 2021, the applicant was taken by staff of Rivergum to a pre-arranged dental appointment in Ararat. Due to a number of recent incidents involving the applicant at Rivergum, management decided to arrange extra personnel to assure security while the applicant was being conveyed to and from the appointment. The applicant was in a car containing two Specialist Case Workers (‘SCW’) from Rivergum and two Emergency Response Group (‘ERG’) members from Hopkins Correctional Centre. A second vehicle containing four members of the Security and Emergency Services Group (’SESG’) was also involved in the trip. The applicant had been informed of these measures before the outing commenced.
The dental appointment concluded without incident at approximately 12.18 pm and the applicant was conveyed back to Rivergum with the above security arrangements in place. He was seated in the rear of one of the vehicles with the two SCWs to his right. As the vehicle approached Rivergum, the applicant demanded to know why extra staff were involved in the transfer. SCW Craig Youlden (‘Youlden’) explained the reason. It is alleged that the applicant became angry, cracked his knuckles, began moving his body and shoulders into Youlden and yelled, ‘Fuck you, cunt, I’ll smash your fucking head in, you smart arse cunt. Go back to prison you fucking screw. You’re nothing but a screw maggot dog’. Youlden attempted to calm the applicant down, indicating the car would need to be pulled over if the applicant continued. The applicant then pushed his nose into Youlden’s nose and yelled, ‘You wanna fucking go? You wanna pull the car up? Don’t fucking threaten me, just pull the car up.
The vehicle was pulled into a secure bay at Rivergum. The applicant yelled abuse and threats at SESG members before moving his face close to Youlden and saying, ‘I’ll smash you, you weak cunt’.
The above matters are relied on in proof of charges 1 and 2.
The applicant was moved to the residential part of Rivergum while the course of action was discussed by authorities. Police were notified and observed on their attendance that Youlden was visibly shaken. A decision was made to arrest the applicant with the use of SESG members and Victoria Police members from Stawell. By this time, the applicant had returned to his unit.
Charge 3 arose from the circumstances of the arrest of the applicant. SESG members attended at the back door of the unit and informed the applicant that they were going to enter the unit and arrest him. He attempted to physically block the door and shouted abuse and threats towards the members, claiming that he was in possession of weapons including shivs. The SESG members utilised a plastic shield as they pushed forcibly on the door against the resistance of the applicant. In the process, they deployed OC spray against the applicant before gaining entry and subduing him on the floor, against his strong resistance. He was then forcibly removed to the rear of a police van and transported to Ararat Police Station where his behaviour remained volatile. He complained of a sore neck and was transported to Ararat Hospital where tests were conducted. He was returned to the police station and took part in a police interview.
During the interview, the applicant denied having made any threats to Youlden and alleged that he was being set up by staff. He denied at any time threatening any person, although he admitted that he had been angry and that a heated exchange had occurred. He admitting approaching Youlden afterwards, but claimed that it was to apologise to him. As for the arrest, he claimed that the SESG members had forced their way into his unit and assaulted him. He summarised his behaviour as being argumentative, and complained about having been taken off mood stabilising medication by Corrections Victoria.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applied to this application. As a result, s 4C(1A) dictated that the Court was required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail. The applicant bore the onus of satisfying the Court as to the existence of a compelling reason.[1] In determining whether a compelling reason existed, the Court was required to take into account the surrounding circumstances,[2] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]Section 4C(2).
[2]Section 4C(3).
If satisfied that a compelling reason exists, the Court was then required to apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail was required to be refused if the Court was satisfied by the respondent that there was a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk was an unacceptable risk.
In applying the unacceptable risk test, the Court was again required to have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there were any conditions of bail that might be imposed to mitigate the risk so that it was not unacceptable, pursuant to s 4E(3) of the Act.
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
Two witnesses were called by the respondent during the application.
Alexander Lowen, the acting manager of the Detention Order Management Team of the Post Sentence Branch, Corrections Victoria, was in a position of being able to give evidence concerning the operations of Rivergum, Melbourne Assessment Prison (‘MAP’) and Ravenhall Correctional Centre (‘Ravenhall’). He gave evidence about the treatment of the applicant at Rivergum from the time of his arrival there, and of the various phases of treatment. The applicant remains in Phase 1. He engaged well in treatment initially, before a significant decline in behaviour and attendance in June leading up to the current events. This deterioration coincided with the cessation of provision to the applicant of a certain anti-psychotic medication which occurred on medical advice. From that time there was a significant escalation in difficult behaviour and aggression towards staff. A number of incidents were outlined. Upon the applicant’s arrest, he was housed initially in MAP. Mr Lowen detailed an incident of violence by the applicant in that prison towards a staff member on 17 July 2021. Video footage of this incident was tendered in evidence. On 27 July 2021, the applicant was transferred to Ravenhall. A further incident occurred at that prison when the applicant was meeting with a senior clinician from Rivergum as part of the ongoing treatment provided by Rivergum to the applicant in prison. By reference to the contents of an affidavit sworn by Joseph Mollica, a principal clinician with the Forensic Intervention Services who provide the clinical component of the Rivergum model, Mr Lowen highlighted the complexity involved in the management at Rivergum of individuals with outstanding legal matters. The normal holistic mode of treatment would not be available to the applicant, and his presence there with outstanding charges concerning clinical staff would create instability within the therapeutic community. Seven of the prosecution witnesses work at Rivergum. It would not be possible to move them so as to avoid ongoing daily contact with the applicant. Nor would it be possible for the usual restorative justice process following incidents between staff and residents to occur in this case. In cross-examination, Mr Lowen indicated that the applicant had engaged reasonably well in the program from February to May. He agreed that the incidents which had occurred in MAP and at Ravenhall did not involve actual assaults upon prison officers. He was asked about the security measures in place and available at Rivergum. He indicated that were the applicant to be bailed to Rivergum, he would receive treatment. He agreed that the applicant could voluntarily exclude himself from aspects of the treatment, but noted that he would not then be participating fully in the Rivergum model.
The informant gave evidence before me in the application, which supplemented the contents of his detailed report exhibited to the affidavit in response. In the report, the informant, amongst other things, answered a number of contentions in the affidavit in support, summarised CV concerns about the applicant being bailed to Rivergum, outlined the risks posed by the applicant in light of his antecedents, and set out the reasons why a grant of bail was opposed. In his evidence, the informant outlined the role he plays in the Supervision Order Specialist Response Unit, whose office is ‘embedded’ in Rivergum. He indicated that he has a knowledge of the working operations and practices at Rivergum. He provided information about the alleged offending, and the witnesses who will give evidence in the hearing. He was present at the arrest of the applicant on 9 July 2021 and expressed his view that the large number of people involved in effecting the arrest was necessary in the circumstances. Through the witness, body-worn camera footage of the arrest was tendered in evidence. The informant reiterated his view set out in his report that Rivergum ‘does not have the capacity to facilitate a high-secure lockdown of the applicant within the facility should an incident of violence occur’.[5] He outlined the security limitations of Rivergum relative to a prison, likening the former to ‘a retirement village type of environment’.[6] The witness noted that the primary alleged victim, Mr Youlden, still works at Rivergum, and is concerned about his safety should the applicant be released on bail. For Mr Youlden to be effectively isolated from the applicant would necessitate his being precluded from his duties. The informant expressed the view that no conditions of bail could satisfactorily ameliorate the risk posed by the applicant.
[5]Transcript 41.
[6]Ibid 42.
The applicant’s submissions
Mr de Vietri for the applicant relied upon a combination of matters in proof of a compelling reason. They were as follows:
a) The importance of the applicant returning to ongoing treatment available to him at Rivergum. Mr de Vietri submitted that this would fulfil the overall aims of the SOA which are the protection of the community and the rehabilitation of the offender. He advanced this as the most important matter upon which the applicant relied in the application. In terms of the Act, it was covered by the availability of treatment as considered in s 3AAA(1)(i) of the Act. In this case, he submitted, it was more than just the availability of treatment. Here there was the very unique situation, as he put it, where a serious violent offender on a SO had available to him a very thorough and intensive rehabilitative process. It was very important that he be returned to that process.
b) The secure nature of the Rivergum facility. Mr de Vietri submitted that this was something ‘quite unique’ about the application.
c) The strength of the prosecution case. Mr de Vietri submitted that whilst there was not much dispute about charge 3, as for charges 1 and 2, it was ‘not an insurmountable Crown case on those two charges’.[7] These, he submitted, were the serious charges, in light of the fact that charge 1 would constitute a breach of a restrictive condition which, upon conviction, would lead to a minimum 12 months’ imprisonment in the absence of a special reason. Mr de Vietri submitted that these two charges were ‘defendable’ firstly in terms of what was said and done in the car, and whether or not such words and conduct even if established would amount to an assault, and actually threatened the safety of those in the car.
d) The nature and seriousness of the offending. Mr de Vietri submitted that whilst breaches of SOs are taken seriously, this was not a case alleging the use of ‘actual force’ or violence. No assault of a serious nature was alleged.
[7]Transcript 3.
Turning to the matter of unacceptable risk, Mr de Vietri submitted that the security measures in place at Rivergum, should the applicant be bailed to reside there, would be sufficient to ameliorate the risk of his endangering the safety or welfare of others or reoffending. Mr de Vietri submitted, further, that the question of unacceptable risk needed to be looked at in the context of the fact that the applicant ‘has not committed an actual violent offence since 1998, the index offending’.[8] He has a personality disorder and can be argumentative and confrontational, but given that he has demonstrated at least some ability to regulate himself and prevent himself from actually engaging in violent conduct, the risk he poses can be satisfactorily ameliorated in the Rivergum setting. Furthermore, Mr de Vietri pointed out that the respondent made no assertion of risk of the application interfering with witnesses or interfering with the course of the investigation or pending legal proceedings.
[8]Ibid 5.
The respondent’s submissions
Ms Champion for the respondent relied upon the contents of her outline of submissions, supplemented by her oral submissions, in resisting the grant of bail. Having dwelt on the law as it applies to the application, she submitted that the alleged offending is serious, for reasons she spelt out in the submissions. The prosecution case is strong, she submitted, with the availability of four eye-witness accounts in respect of the most serious charges, namely charges 1 and 2, and the body-worn camera footage and eye-witness accounts in support of charge 3.
The lengthy and significant criminal history of the applicant was highlighted. Beyond the convictions for violent offences including the index offence of murder, the history includes ten recent convictions across two court appearances for breaching a supervision order and a number of other convictions for breaching bail and other court orders. The history shows poor previous compliance with parole and, overall, a history of disregard of court orders.
Of note, submitted Ms Champion, is of course the fact that this alleged offending occurred while the applicant was subject to a SO.
The view of Mr Youlden was pointed to, as well as the concerns held by CV about a grant of bail to Rivergum.
The delay likely in this case would be minimal, with the contested hearing to occur on 1 September 2021.
Turning to the likely length of the sentence should the applicant be found guilty, this would be likely to exceed any time spent on remand.
Ms Champion submitted that there would be limitations on the ability of Rivergum to contain the risk of violence posed by the applicant should he be bailed there. By way of illustration of this, it was noted that even the very stringent measures put in place to ensure security for the outing in question were not enough to manage the risk. Ms Champion relied strongly on the negative attitude of CV to a grant of bail to the applicant. There were security and other practical reasons for this attitude. The applicant has displayed sustained threatening and intimidating behaviour, targeting Mr Youlden not once but twice. Even the implementation of significant resources and processes was not enough to prevent the alleged offending. Rivergum staff are prosecution witnesses, raising concerns about whether treatment can effectively be administered. Essential outings in the community would not be able to be effectively managed, highlighting a risk to the broader community as well as staff of Rivergum. The applicant’s aggressive and violent behaviour has continued on remand.
In respect of the applicant’s assertion that the cessation of the anti-psychotic has contributed to his offending behaviour, Ms Champion pointed out that there is no evidence in support of this.
In respect of the future should the applicant be denied bail, continuing support from Rivergum will still be available to him.
In conclusion, Ms Champion submitted that the applicant had failed to discharge the burden of establishing that a compelling reason exists. Furthermore, it was submitted that there would be an unacceptable risk of the applicant endangering the safety of people and committing offences while on bail.
Analysis
I propose to deal in turn with the four matters relied upon in combination in proof of the existence of a compelling reason which would justify the grant of bail.
The first of these was the importance of the applicant returning to ongoing treatment available to him at Rivergum. Whilst there is no doubt that in the longer term, it would be very much in the interests of the applicant, the community, and justice more broadly that the applicant be permitted to recommence the treatment available to him in Rivergum, it must not be forgotten that what is in issue here is what will occur in the short period of time before the resolution of the charges the applicant faces. There are powerful reasons why the presence of the applicant in Rivergum while he has charges outstanding which concern, amongst other things, an assault alleged against a staff member, witnessed by other staff members, would be problematic. No fewer than seven members of the Rivergum staff who would, in the normal course of events, come in contact with the applicant, are witnesses for the prosecution. The alleged victim of the applicant’s offending, who would normally be in close contact with the applicant, harbours fears for his safety should the applicant be bailed there. The prospect of the applicant being bailed to reside back in Rivergum in those circumstances was not, to my mind, an appealing one. Furthermore, there is evidence which indicated that the fact of the pending charges would, for this period of time, interfere with the ability of the applicant to receive the important and ongoing treatment which was in the past, and hopefully will again in future, be available to him. In addition, the evidence pointed to the risk of the presence of the applicant in Rivergum, for now, creating instability and impacting on the treatment progress of other residents in the Rivergum community. In addition to what I have said thus far, it must be noted that the alleged offending of the applicant occurred in the context of a significant deterioration in his attendance and behaviour in the weeks leading up to his incarceration. The defence submission as to the importance of the applicant returning to treatment pending the hearing of the charges must be assessed in the context of the seeming breakdown in treatment before the alleged offending.
The second matter relied upon in the application was the asserted secure nature of the Rivergum facility, which was put forward as being something ‘quite unique’ about the application. Of course there is a measure of security and control about Rivergum, but the evidence clearly pointed to the security shortfalls of that facility relative to the prison in which the applicant is presently being housed. Rivergum is not built or staffed to deal with some of the security situations which may be readily accommodated within a prison. Having had the opportunity during the application to view the video footage of the arrest of the applicant in Rivergum on 9 July 2021, and the incident which took place in MAP on 17 July 2021, I note that the challenges presented by the applicant’s behaviour on those occasions were clear to see. There would be real concerns about the ability of staff at Rivergum to safely and securely handle such conduct of the applicant in future without exposing themselves or other residents to the risk of harm.
Turning to the strength of the prosecution case, it was effectively acknowledged that the case on charge 3 is strong, and all that was submitted in respect of the other charges was that it was ‘not an insurmountable Crown case’ and that the charges are ‘defendable’. Mr de Vietri understandably did not submit that the prosecution case is a weak one. Whilst acknowledging his indication that there may be an issue whether what occurred in the car would amount to an assault, that proposition was not expanded upon. As for what actually occurred, four eye witnesses will attest to that, as I understand it. The prosecution asserts that the case will be a strong one. That remains to be seen. On any view, however, the case is not a weak one.
The final matter specifically pointed to by Mr de Vietri was the nature and seriousness of the offending. He submitted that no actual force was used, and that this was not a case of an assault of a serious nature. That may be so. However, the offending alleged is nonetheless of some seriousness, as submitted by Ms Champion.
The matters relied upon by Mr de Vietri fall to be examined, of course, in the context of the rest of the surrounding circumstances of this case. These include the very serious criminal history of the applicant for violence and other crimes, his poor record of compliance with court orders, the fact that he was on a SO at the time, the fact that his behaviour on the SO had deteriorated substantially in the lead-up to the current events, the problems in the applicant returning to treatment at Rivergum while the charges remain outstanding, the known view of the alleged victim of the offending in opposition to bail, and the very short period of time the applicant would spend on remand should bail be refused.
Having considered the matters relied upon by Mr de Vietri in the context of all of the surrounding circumstances of the case, I was of the view that the applicant had failed to discharge the burden resting upon him of proving the existence of a compelling reason that would justify the grant of bail. That would have been sufficient to dispose of the application.
For completeness, I indicated my view at the time of refusing the application that in all of the circumstances, even had I been satisfied of the existence of a compelling reason, I would have been of the view that the applicant posed an unacceptable risk of endangering the safely or welfare of a person or committing an offence while on bail. Bail would have been refuse for that reason in any event.
Conclusion
For the reasons I have endeavoured to set out above, this application for bail was refused.
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