Re Tata
[2024] VSC 378
•5 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0137
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by Michael TATA |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2024 |
DATE OF JUDGMENT: | 5 July 2024 |
CASE MAY BE CITED AS: | Re Tata |
MEDIUM NEUTRAL CITATION: | [2024] VSC 378 |
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CRIMINAL LAW – Bail – First time in custody – Alleged family violence offending against former partner and daughters – Threat to damage property by burning down house – Three threats to kill in family violence context – Reckless conduct endangering serious injury - Steps taken by applicant to carry out threats – Schedule 2 offences - Compelling reason test applicable – No criminal history – No bail history – Contested hearing not likely until at least late 2025 – Family violence intervention orders in place - Seriousness of alleged offending – Prosecution case reasonably strong - Time on remand will not exceed ultimate sentence if convicted – Supportive family and stable residence – Risk posed by applicant – Existence of compelling reason not established - Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Cooper | Victoria Legal Aid |
| For the Respondent | Mr P Pickering | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges of threatening to destroy/damage property, reckless conduct endangering a person, and making a threat to kill (3 charges).
It is agreed between the parties that I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of Schedule 2 offences under the Bail Act 1977 (‘the Act’), namely, the charges of making a threat to kill, which are also family violence offences.[1]
[1]Schedule 2, Item 7.
Procedural history
The applicant was arrested and charged on 8 March 2024. Bail has been refused three times in the Magistrates’ Court, on 8 March, 2 April and 29 April 2024. Each refusal was by a different magistrate. On the first two occasions, bail was refused on the basis of unacceptable risk. On the final occasion, the learned magistrate considered a compelling reason had not been shown, and in the alternative, the applicant posed an unacceptable risk.
The charges faced by the applicant are next listed for a contested committal hearing at Melbourne Magistrates’ Court on 16 October 2024.
The applicant is subject to three final family violence intervention orders (‘FVIOs’) made at Dandenong Magistrates’ Court on 14 March 2024, which were made shortly after the alleged offending.
The FVIOs protect his ex-partner, Donna Williams (‘Donna’), and their adult daughters, Misty and Mona Williams, and remain in effect until 14 March 2027. The FVIOs protecting Donna and Misty stipulate that the applicant must not, personally or through another person:
· Commit family violence against them.
· Intentionally damage their property or threaten to do so.
· Attempt to locate, follow or keep them under surveillance.
· Publish any material about them on the internet, by email, social media or other electronic communication.
· Approach or remain with 5 metres of them.
· Go to or remain within 200 metres of where they live or work (or attend school or childcare, in the case of Misty).
The FVIO protecting Mona includes the same conditions, with an additional condition that the applicant not contact Mona by any means.
All FVIOs contain limited exceptions, allowing the applicant to arrange and/or participate in counselling with Donna, Misty and Mona, and allowing the applicant to communicate with Mona through a lawyer or mediator.
Summary of alleged offending
The applicant, who is 62 years old, has five adult children with Donna Williams including twin daughters Misty and Mona, aged 21. The applicant is separated from Donna, who resides with Mona at an address in Lambourne Avenue, Rowville (‘Lambourne Avenue’). On 7 March 2024, the applicant was at Lambourne Avenue, and had been drinking heavily throughout the day. His daughter Misty estimated that he had consumed 16 cans of beer by the time of the incident. Misty confronted the applicant about his behaviour towards Donna, which had allegedly been violent and abusive for a number of days. Misty told the applicant to leave the premises, and he responded by saying, ‘Fuck you, I’m going to kill the lot of you. I am going to burn down the house’. The digitally recorded evidence-in-chief statement of Misty contained in the hand-up brief, exhibited to the affidavit in support of bail, in fact indicates that the applicant had threatened to burn down the house on ‘multiple’ occasions in the week preceding the alleged offending.
Following this exchange with Misty, the applicant got into his motor vehicle and was heard by Mona to say, ‘I’ll be back to kill all of yous’. [2] He then left the premises and drove to a service station in Lysterfield. He took with him a red jerry can. At the service station, he filled the jerry can with petrol, and then paid for the petrol. His attendance at the service station was captured on its CCTV system.
[2]Statement of Mona Williams of 7 March 2024 [10], Exhibit MC-1 of Applicant’s Affidavit in Support of Application for Bail, 12 June 2024 (‘Mona Williams Statement’).
The applicant returned to Lambourne Avenue and parked his vehicle on the front lawn before getting out of the car with the jerry can. He was observed by Mona, who was inside the house, to walk towards the bike shed at the property. He opened the door to the bike shed and then poured petrol on the ground inside the shed. He also allegedly poured fuel over the veranda of the house. Mona yelled out a warning to others in the house. Misty ran through the house and went out the front and up to the applicant, trying to prevent him from pouring more petrol. She tried to grab hold of the jerry can, and the applicant, according to Misty, then poured petrol on her. Mona observed the applicant and Misty grappling for the jerry can and the applicant attempting to pour fuel on Misty, but did not see fuel land on her. Misty succeeded in removing the jerry can from the grasp of the applicant. The applicant returned to his car and began to reverse back, before stopping and driving forward towards Misty, who was standing in front of the house. She took evasive action to avoid being struck. She then approached the driver’s side of the vehicle and punched the applicant through the open window, causing him to lose consciousness. Misty then called 000 and reported the events. She, Mona and Donna then left the premises and waited down the street for the arrival of the police.
Police attended and located the applicant inside the premises. He appeared to be intoxicated, and had facial injuries. He was placed under arrest and transported to Dandenong Hospital for treatment. At the hospital, the applicant’s clothing was seized and a black cigarette lighter was found in the pocket of his shorts.
After the hospital, the applicant was taken to Ringwood Police Station where he was deemed unfit for police interview due to his intoxicated state. In the end, no interview was conducted.
An examination of Lambourne Avenue did not confirm the presence of petrol on the ground. A later examination of Misty’s clothing, conducted by forensic officer John Kelleher, did not confirm the presence of flammable liquid. Mr Kelleher indicated that this may mean that flammable liquid had never been present, or that it had been present but had burnt or evaporated to a point below the detectable level.
Personal background
The applicant is a 62-year-old Māori man who was born in New Zealand and came to Australia in 1988. He is a permanent resident. He has five children from his relationship with Donna, and a son from another relationship. He has a consistent work history in New Zealand and Australia, predominantly as a crane driver, but also as a truck driver, for which he has a heavy vehicle licence. At the time of these events, he was working as a rigger at a paper mill in Maryvale. The applicant has no mental health issues, nor any history of illicit drug use. He has had a long history of excessive alcohol consumption, with an extensive period of abstinence until three years ago, when he recommenced heavy drinking following the death of a friend. Other than attending several meetings of Alcoholics Anonymous in prison, he has received no treatment for his alcohol abuse.
The applicant has no criminal convictions, and other than three days spent in custody in 1989 in relation to unpaid fines, he has never been in custody.
During his recent incarceration, the applicant suffered a fall in custody which is believed to have aggravated a previous injury to his meniscus in his right knee. He requires the use of a wheelchair to move around, which has been rendered problematic due to his weight. He is a type-2 diabetic, for which he is receiving appropriate treatment in custody.
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. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Bail Act s 4C(2).
[4]Ibid s 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act. The respondent bears the onus of satisfying the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. If that onus is met, then bail must be refused.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is 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 by the Court of Appeal in Rodgers v The Queen:[5]
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.[6]
[5][2019] VSCA 214 (Beach, Kaye and Ashley JJA) (‘Rodgers’).
[6]Rodgers (n 5) [43] (citations omitted).
Evidence led during the hearing
Three witnesses were called by the applicant during the hearing.
Tammy Thomson, the niece of the applicant, attested to her regular contact with the applicant over many years. She lives close to the proposed bail address in this case, and would be able to provide support to the applicant should he be released on bail. Ms Thomson also gave evidence that the applicant had provided her with considerable support when she first emigrated to Australia from New Zealand.
Frederick Ormsby, the first cousin of the applicant’s mother, and long-time friend of the applicant, informed the Court that if released on bail, the applicant would be welcome to live at his rented home in Hoppers Crossing. No alcohol is kept or consumed in the house. Mr Ormsby gave an undertaking to the Court that if he became aware of any breaches of bail conditions by the applicant, he would report this to the police.
Pema Woesang, an Assessment and Referral Practitioner with the Court Integrated Services Program (‘CISP’) Remand Outreach Program (‘CROP’) gave evidence about the contents of her report, dated 25 June 2024 (‘the CROP report’).[7] The report provided information about the background of the applicant, and a number of referrals which would be able to be made for the applicant to receive treatment and support should he be released on bail. Ms Woesang assessed the applicant as being recommended for case management by the Indictable Crime Stream. A case manager has already been appointed. In cross-examination, Ms Woesang conceded that no referrals have yet been made, and any referral will depend on the willingness of the applicant to attend. Failure to attend referrals made by the case manager, however, would constitute a breach of CISP, which would be reported to authorities.
[7]An updated report bearing the same date (25 June 2024) was provided to the Court on 3 July 2024, to amend the date of the applicant’s proposed initial assessment appointment.
Applicant’s submissions
Mr Cooper, who appeared for the applicant, relied upon a combination of matters set out in his written outline and oral submissions in support of the existence of a compelling reason, and in resisting a conclusion as to an unacceptable risk. The matters relied upon were:
(a) The strength of the prosecution case. Mr Cooper submitted that there are triable issues as to whether the applicant used the threatening words attributed to him by Misty and Mona, whether he poured petrol over Misty and/or over the shed and veranda, and whether the applicant’s driving created an appreciable risk of serious injury to Misty. Mr Cooper pointed to the inconsistency between the evidence of the three eye witnesses, the lack of any complaint by Misty during the 000 call of any threat having been made, and the content of the body-worn camera footage capturing what Donna told police.[8] In relation to the alleged pouring of petrol, aside from the fact that only Misty made this claim, the evidence of Mr Kelleher was that no petrol was detected on Misty’s clothing, and an officer from Fire Rescue Victoria did not detect the presence of fuel at the house. In relation to the driving, Misty was able to step back from the car as opposed to jumping. Furthermore, she indicated that the applicant was trying to drive into the house, rather than to hit her.
[8]There was no statement from Donna on the hand-up brief, and it appears that she declined to make a statement.
(b) The lack of any criminal history or adverse bail history. The applicant is 62 years old, and has never been in trouble with the law. He is currently experiencing his first significant period of time in custody. It has been a salutary experience for him. He is aware that he would risk returning to custody should he breach any condition of bail.
(c) Delay. The applicant will have been in custody for 223 days by the time of the contested committal. It is foreseeable that he would spend a further 12 to 14 months on remand awaiting trial, if committed to stand trial. It is difficult to postulate the likely sentence the applicant would receive if convicted, but there is a realistic possibility, if not a probability, that if not granted bail, the applicant may spend a period of time on remand which would exceed the length of any sentence received.
(d) The availability of bail support services. The applicant has been found suitable for CISP support. Supports on offer will directly address his alcohol use and the family violence allegations present in this case. The applicant’s use of his time in custody to undertake relevant programs with the Salvation Army and Alcoholics Anonymous augurs well for his compliance with future programs organised by CISP. The contents of the CROP report and the other material indicate a degree of development in the applicant’s insight into his alcohol problem, and his openness to seeking treatment.
(e) The attitude of the complainants to a grant of bail. Donna, Misty and Mona are not opposed to the grant of bail. This is a notable change in position from the earlier applications.
(f) The applicant’s vulnerability in custody. The applicant sustained an injury from a fall in custody on 11 April 2024. Until recently, the applicant primarily moved around using a wheelchair, which is not sufficient for him in light of his weight. Since the recent transfer of the applicant from Fulham Prison to Port Phillip Prison, no wheelchair has been available to the applicant, meaning that he has been reliant on a single crutch.
(g) The availability of accommodation well away from where the alleged offending occurred. The home of Mr Ormsby would be an appropriate address for the applicant, in part, because it is far from the location of the alleged offending. It is a place where alcohol would not be present, and the applicant would be watched over by a person who has undertaken to report any breach of bail to the authorities.
(h) The family and other support available to the applicant. The applicant enjoys the support of Mr Ormsby, Ms Thomson and his children other than Misty and Mona. He has a broad support network in Melbourne. And indeed, a number of family members attended the hearing in support of the applicant.
(i) The existence of FVIOs in place to protect the affected family members. These orders did not exist at the time of the alleged offending. There is no allegation of the applicant having breached the orders since their inception. Nor does the applicant have any history of breaching such orders.
Mr Cooper described the applicant’s history with alcohol as being ‘patchy’ and not consistent. He had a long period of abstinence in the past. The alcohol use in the lead-up to the alleged offending occurred in the context of his grief over the death of a friend. Since being in custody, the applicant has not consumed any alcohol, and has expressed a desire to obtain treatment and to not resume alcohol consumption.
In response to a suggestion from me that the prosecution case was at least of reasonable strength, Mr Cooper referred to the decision of Re Pecori,[9] a case in which I granted bail to the applicant in spite of the fact that he was charged with a serious instance of rape and the prosecution case was considered by me to be reasonably strong.
[9][2023] VSC 777.
Mr Cooper emphasised that this allegation of family violence arose in the context of a long relationship, which had not been characterised by earlier family violence reports. And the applicant has now had ‘the cold shower of custody’,[10] and knows where any further offending would leave him.
[10]Transcript 39.
He noted that the applicant has no other mental health or drug use issues which might increase his risk profile. He has lived a pro-social life, has an extensive support network available to him, and is well-placed to address his alcohol and behavioural issues.
In respect of the cigarette lighter which was found in the pocket of the applicant’s shorts at the time of his arrest, Mr Cooper submitted that it would be premature to presume that the lighter was necessarily in the applicant’s pocket at the time of the alleged offending.
Dealing with the question of risk, Mr Cooper submitted that the current allegations are the first allegations ever made of criminal offending by the applicant. There are protective factors now in place which were not in place previously, including the applicant’s developing insight into his drinking problem and the existence of the FVIOs. The applicant has never demonstrated an inclination to ignore court orders. In addition, the applicant is severely limited in his ability to move around because of his leg injury, necessarily lessening the risk he poses. Mr Cooper submitted that the Court should have some confidence that the community would be adequately protected if the applicant was released on bail with the conditions proposed.
Respondent’s submissions
Mr Pickering, who appeared for the respondent, filed written submissions before the hearing and made oral submissions in opposition to bail. He conceded that it would be open to the Court on the available material to find that a compelling reason exists that justifies the grant of bail. However, he submitted that even were I to find that a compelling reason exists, I should find that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety and welfare of a person, or interfere with a witness or otherwise obstruct the course of justice.
Mr Pickering, in response to Mr Cooper’s emphasis upon the recognition by Parliament of the presumption of innocence and the right to liberty in s 1B of the Act, noted the parallel recognition of the importance of maximising the safety of the community and persons affected by crime to the greatest extent possible.
In respect of the seriousness of the alleged offending, Mr Pickering pointed out that a feature of the allegations was that, having uttered serious threats in a highly intoxicated state, the applicant went to the considerable lengths of leaving the house, driving to a petrol station and purchasing petrol, returning to the scene, and pouring out petrol in pursuit of his desire to carry out the threat. It is one thing to make drunken threats. It is quite another to actually take steps to carry them out. This was a very serious category of threat.
Mr Pickering also submitted that the applicant’s minimal insight into the offending and his inability or unwillingness to address his alcohol use are matters which increase the risk he poses.
It was submitted that the CROP report should be read in conjunction with the earlier CISP report in which the applicant’s lack of insight was a feature.
As for the recommendations of services in the CROP report which could assist the applicant, nothing is in place. It would be up to the applicant to self-refer, or to otherwise engage in the services mentioned. The proposed conditions are vague, non-specific and voluntary, so as to provide little protection to the community. Mr Pickering described the contents of the CROP report as ‘a plan to make a plan’.[11]
[11]Transcript 48.
The FVIOs in place are yet to be tested, and, given the minimal insight demonstrated by the applicant, the Court could have little confidence in their being followed.
In respect of the plan for the applicant to reside with Mr Ormsby, whilst Mr Ormsby may report any breaches of the bail conditions, it is unclear how he could prevent or deter any breaches by the applicant.
Mr Pickering submitted that the applicant has had serious issues with alcohol for a long time, and at the time of the alleged offending, had drunk an enormous amount of alcohol. On remand, he has had no ability to obtain alcohol. If released on bail there would be nothing to stop him from drinking. Although Mr Ormsby is a non-drinker who has no alcohol in the house, he works full time, and cannot watch over the applicant, who could head to the nearest bottle shop if he so desired.
Mr Pickering submitted that in the current circumstances, bearing in mind the serious features of these alleged crimes, and the background of severe alcohol abuse in which they arose, the applicant represents a clear danger to the community. The conditions proposed cannot ameliorate the risk posed by the applicant to an acceptable level. There is an unacceptable risk of the applicant carrying out further offending, thus endangering the public, and interfering with witnesses. Bail should be refused.
Analysis
Amongst the array of matters set out within the non-exhaustive list of circumstances which are to be taken into account at both stages of the two-step process of bail in this case, there is no question that many of the circumstances would be strongly in support of a grant of bail.
The applicant is a 62-year-old man with no previous criminal history, and therefore, no adverse bail history. There is nothing to suggest he would not have due regard and respect for the orders of a court in general, and any conditions of bail which I might impose, in particular. He has available to him, should he be released on bail, an appropriate place to live, well away from the scene of the alleged offending, with a supportive relative who, to an extent, would be able to look after him. He is fortunate to have a healthy degree of support from family and friends. He would also have the support and supervision of CISP. There are the beginnings of insight, on his part, into the heavy drinking which he was prone to engage in, and by which he was substantially affected at the time of the events in question. There are FVIOs in place which would provide some measure of protection to the complainants. The offending allegedly arose, seemingly out of nowhere, in the course of a very long-term relationship, in which there were no formal reports of family violence in the past. However, I note Mona Williams’ description of her father as ‘loud, controlling, mentally and physically abusive’ and someone who ‘refuses to leave the house to torment my mum’. [12] While these allegations are untested, and as noted, there is no formal family violence history, they are nevertheless concerning.
[12]Mona Williams Statement (n 2) [28].
Despite this final caveat, as I described it at the conclusion of the hearing, this was a strong application for bail, supported by some impressive material.
Having said those things, of course, the circumstances as a whole must be considered, and others amongst them point strongly against a grant of bail.
First, an assessment of the nature and seriousness of the alleged offending does not bode well for the application. Making a threat to kill is generally a serious crime, and the making of such a threat in a family violence context has a particular status under the Act, as noted earlier. And there is something particularly disturbing about the conduct alleged here. It is alleged that the applicant, in an extremely drunken state, made a very serious threat to kill the three complainants by setting fire to the house in which they were located. The essence of a charge of making a threat to kill is that the person accused must have made the threat intending that the person threatened would fear that the threat would be carried out, or being reckless as to that.[13] It is not an element of the crime that the person who made the threat actually intended to carry it out.
[13]Crimes Act 1958 s 20.
In this case, of course, it is alleged that having uttered that frightening threat, the applicant then took steps to follow through with it. The steps he took resulted in his attendance back at the house, some minutes later, armed with a jerry can full of fuel which, on the prosecution case, he proceeded to spill around the premises, and deliberately pour over his daughter.
Sadly, the use of fire, aided by accelerants, as a means of carrying out assaults, leading to the infliction of death or shocking injury upon victims, has become an all-too-common factual scenario in this Court.
The offending alleged against the applicant is disturbing, and of a high level of seriousness.
Turning to the matter of the strength of the prosecution case, the entirety of the prosecution brief was exhibited to the affidavit in support. I have read the brief, although I have not been provided with any multi-media exhibits. Although the prosecution is still at an early stage, with the committal listed for October, and a bail application is not the time for definitive judgments on the matter, I am in a position to make a reasonable assessment of the strength of the case. In my view, notwithstanding the submissions made by Mr Cooper as to the existence of triable issues, it would be difficult to view the case as being anything less than a reasonably strong one. Understandably, Mr Cooper did not submit that the case is a weak one.
Turning to the consideration contained in s 3AAA(1)(k), namely, the length of time the applicant is likely to spend in custody if bail is refused, and that contained in part (l), the likely sentence to be imposed should the applicant be found guilty, I do not accept the contention by Mr Cooper that there is a realistic possibility, even a probability, that the applicant, if not granted bail, may spend longer in custody on remand than he would receive as a sentence.
There is no question that, as things stand, the applicant would spend a significant amount of time in custody on remand if not released on bail. But if he chooses to go to trial in this case, which is of course his right, and if he is then found guilty by a jury, the sentence of imprisonment which would inevitably follow would be likely to far exceed any period of time on remand.
Turning to the question of risk, which is a matter which would appropriately be considered in the first step of the bail process, as well as a stand-alone matter if the second step is reached, I accept that there are a number of circumstances which would tend to control the risk the applicant would pose. However, the offending alleged here, as stated earlier, is disturbing, and occurred in the context of a severe state of intoxication experienced by a man who for years has reduced himself to that sort of state on a regular basis. The applicant has, in reality, received no treatment for the severe problem he has. The first real test of his newfound and developing resolve would not come until he left a custodial setting. The imposition of a condition that he not consume alcohol on bail might be seen as an unrealistic demand, setting him up to fail. A recurrence of excessive drinking may, conceivably, rekindle in him the powerful emotions at the heart of his conduct on the day of the alleged offending.
As was said by the Court of Appeal in FT (a pseudonym) v The King:[14]
It may be accepted that, depending on the circumstances, some risks of offending on bail, even a high risk, may not be unacceptable for the purposes of the Act. The calculus involves an assessment of the probability of the risk eventuating and the likely harm if it does. Here, both those integers weigh heavily against the appellant.[15]
[14][2024] VSCA 90 (Beach, McLeish and Niall JJA).
[15]Ibid [96].
Even if the probability of the applicant seeking to renew hostilities with his daughters and former partner and again seeking to harm them may not be viewed as high, the likely harm should the risk eventuate is catastrophic, and in my view, the risk is an important consideration where an assessment of a compelling reason is concerned.
Amongst the circumstances to which I am required to have regard pursuant to s 3AAA(1)(f) of the Act is whether there is in force a family violence intervention order. And also s 5AAAA of the Act requires me, if considering the release on bail of an applicant charged with a family violence offence, to consider whether if the applicant were released on bail, there would be a risk that he would commit family violence, and whether the risk could be mitigated by the imposition of a condition. I have had regard to these matters.
Since the case of Re Pecori was mentioned by Mr Cooper, and in some respects likened by him to the current case, I should point out, as Mr Cooper correctly noted during the hearing, that each application turns on its own facts. The facts in Re Pecori bear little comparison with those of the case now before me.
In the end, having carefully considered all of the matters placed very ably before the Court by Mr Cooper, and notwithstanding the prosecution concession on the matter, I am not satisfied that the applicant has established the existence of a compelling reason that would justify the grant of bail in this case.
That would be reason enough for bail to be refused. It was the determination reached by the last magistrate to consider the matter, and one with which I agree.
For completeness, I consider that even had I been satisfied as to the existence of a compelling reason, I would have been satisfied that there is an unacceptable risk of the applicant endangering the safety of the public – in particular, his children or former partner – by committing a further offence, or of him interfering with a witness or otherwise obstructing the course of justice.
Before leaving this application, I make the point that the decision I have reached is based on the circumstances as they currently appear to me. Those circumstances may potentially change, with the passage of time or for some particular reason. The decision I have reached on the current application does not forestall any future application for bail, which of course, would be decided on the material as it then appears.
I also note, with great concern, the submission of Mr Cooper that since the applicant has been moved from Fulham Prison to Port Phillip Prison, he has not been provided with a wheelchair. I would urge correctional services to urgently rectify this failing, and ensure that the applicant is receiving adequate assistance and treatment for his leg injury.
Conclusion
For the reasons I have stated, this application for bail must be refused.
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