Re Terei
[2024] VSC 294
•5 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0112
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Haley TEREI |
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JUDGE: | Incerti J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2024 | |
DATE OF RULING: | 5 June 2024 | |
CASE MAY BE CITED AS: | Re Terei | |
MEDIUM NEUTRAL CITATION: | [2024] VSC 294 | (First Revision (7 June 2024): [41]) |
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CRIMINAL LAW – Bail application – Applicant charged with firearms and property offences – Drug addiction – Access to Koori Court – HA v The Queen [2021] VSCA 64 – Whether unacceptable risk – Applicant identifies as Aboriginal – Bail Act 1977 (Vic) s 3A – Bail reform.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Khan | Victorian Aboriginal Legal Service |
| For the Respondent | Ms J Piggott | Director of Public Prosecutions |
HER HONOUR:
I heard an application for bail by Haley Terei (‘the applicant’) on 30 May 2024 and granted bail. These are my reasons.
The applicant is charged with a series of offences which are alleged to have occurred between 20 December 2023 and 13 May 2024:
(a) Burglary;
(b) Theft;
(c) Theft of firearms;
(d) Prohibited person possess firearm;
(e) Possess ammunition;
(f) Dispose traffickable quantity of firearms;
(g) Knowingly deal with proceeds of crime; and
(h) Possess methylamphetamine.
At the time of the alleged offending, the applicant was on bail for charges of burglary and commit indictable offence whilst on bail. These matters were resolved on 19 March 2024 when she was sentenced to an 18-month Community Correction Order (‘CCO’) for those charges and other offending.
On 13 May 2024, the applicant was arrested, charged, and remanded in custody in relation to the present matters.
On 15 May 2024, the applicant was refused bail in the Melbourne Magistrates’ Court on the basis that she posed an unacceptable risk of endangering the safety and welfare of any other person. The Magistrate was particularly concerned that five of the stolen firearms had not been located by police.[1]
[1]Affidavit in support, Exhibit JP-2.
The applicant’s matter is next listed on 19 June 2024 at the Melbourne Magistrates’ Court for committal mention.
The alleged offending
Burglary; theft; theft of firearms; prohibited person possess firearm; possess ammunition
On 20 December 2023, the applicant and Matthew Hanley (‘the co-accused’) allegedly entered a home in Hastings, Melbourne by forcing a window. The homeowner was away at the time. The pair stole a substantial amount of property from inside the house, including:
(a) a gun safe containing seven firearms and ammunition;
(b) $470,000 in cash;
(c) a large quantity of valuable and collectible items including gold nuggets; opals and other gemstones; gold and silver jewellery; multiple albums of foreign currency, collectible coins, and stamps; silverware; and military memorabilia.
CCTV footage from the neighbouring home captured a car reverse into the driveway at 4:54am and leave 10 minutes later, with a large item hanging from the boot.
The offenders left two sets of shoe prints, identified as Nike TNs and Nike 270s. A small amount of blood, confirmed to be that of the co-accused, was found where the safe had been removed. A cigarette butt containing the applicant’s DNA was also found in the garage, near where the safe was located.
Deal with proceeds of crime
On 21 December 2023, the co-accused bought a station wagon for $44,000, paying in cash. The next day, he bought a sedan for $22,000, again paying in cash. The co-accused’s partner, as well as his friend Joshua Cook, were present on both occasions.
Between 10 January and 22 March 2024, the co-accused arranged for Joshua Cook’s brother to work on the station wagon and offered to pay him with a gold bracelet containing black diamonds. In text messages to various associates, the co-accused also referred to selling gold, opals, and collectible coins and notes.
On 24 December 2023, the applicant’s then partner, Luke Wells, bought a Jeep Cherokee SUV for $20,000, paying in cash. An unidentified male was also present at the time.
Execution of search warrants; co-accused’s arrest; dispose of traffickable quantities of firearms
On 26 March 2024, police executed a search warrant at the co-accused’s house and located numerous items belonging to the complainant, including a firearm, ammunition, gun safe, jewellery, silverware, gemstones, and collectable coins. Police also found a pair of Nike 270 shoes which matched one of the sets of shoe prints left at the complainant’s home during the burglary.
The co-accused was arrested and transported to Mornington Police Station. Whilst in police cells, the co-accused told covert officers that:
(a) the burglary had resulted in a ‘good earn’ including 15 firearms, jewellery, opals, $400,000 in cash, and a coin collection;
(b) he had sold six of the firearms for $900 each, and had buried a large quantity of the remaining stolen property where police would not find it;
(c) he committed the burglary with a woman named Haley, who he described as a 28 year old with long black hair, who was close friends with his sister. He said he and Haley had split the stolen property 50/50, but that she had been robbed of her cut and had left the area.
The co-accused then participated in a formal record of interview, in which he initially made no admissions. When police asked about images on his phone showing one of the complainant’s stolen guns and a large quantity of cash, he said that a friend had buried the firearm and cash. He was subsequently remanded in custody.
On 10 April 2024, police executed a search warrant at the home of the applicant, her then partner Luke Wells, and his father Ricky Burrows. Police located $8,900 cash, as well as collectible coins, opals, and silver bars belonging to the complainant. Police also searched Ricky Burrows’ phone, which contained images of a large amount of cash, and an outgoing message referring to guns being located.
The same day, 10 April 2024, police executed a search warrant at Joshua Cook’s home and seized his phone. His message history showed he had attempted to sell gold, collectible coins, and opals. There was also a video taken on 15 January 2024 which showed a conversation between Ricky Burrows, the co-accused, Luke Wells, Joshua Cook, an unidentified male, and an unidentified child in which they discussed gold and opals.
Applicant’s arrest; possess methylamphetamine
On 13 May 2024, the applicant was arrested in South Morang. She had 0.5 grams of methylamphetamine on her at the time. She was transported to Mill Park Police Station and provided a no comment interview.
The applicable legislation
Guiding principles
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).
Prima facie entitlement to bail
A person who is accused of an offence and being held in custody for that offence is entitled to be granted bail unless the Act requires it be refused.[2]
[2]The Act, s 4.
Section 4AAA of the Act outlines circumstances in which bail must not be refused.
Section 4AA of the Act outlines the circumstances in which a two-step test applies to the determination of whether to grant bail.
Because no such circumstances exist in this case, the applicant is prima facie entitled to be granted bail, subject to the terms of the unacceptable risk test, below.
Step 1 - unacceptable risk test
Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that the risk is unacceptable.[3] In considering whether any relevant risk is unacceptable, the Court must have regard the relevant surrounding circumstances, including, but not limited to, those in s 3AAA(1) of the Act, and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[4]
[3]Ibid ss 4E(1)-(2).
[4]Ibid s 4E(3).
Determination in relation to an Aboriginal person
Further, in making a determination in relation to an Aboriginal person, the Court is required to take into account any issues that arise due to that person’s Aboriginality, including—
(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;
(b) the risk of harm and trauma that being in custody poses to Aboriginal people;
(c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;
(d) any issues that arise in relation to the person's history, culture or circumstances, including the following—
(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;
(ii) any experience of out of home care, including foster care and residential care;
(iii) any experience of social or economic disadvantage, including homelessness and unstable housing;
(iv) any ill health the person experiences, including mental illness;
(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment;
(vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;
(e) any other relevant cultural issue or obligation.[5]
[5]Bail Act 1977 (‘the Act’), s 3A.
The applicant’s personal circumstances
Ms Terei is a 32 year old Torres Strait Islander and Aboriginal woman of the Yorta Yorta nation.
She has four children between the ages of 8 and 14 years. Her eldest daughter resides with Ms Donna Wells, the mother of her former partner, and Ms Terei intends to reside at this address if granted bail. Her 14 year old daughter was present in court to support the application.
Ms Terei has a significant history of abuse, neglect and family violence. After her mother passed away when she was only three years old, she was raised by her father who is not Aboriginal and sought to separate her from her culture and any cultural supports. This resulted in a ‘whitewashing’ of Ms Terei’s heritage and she grew up believing her mother was from New Zealand.[6] At the age of 15, Ms Terei was abandoned by her father and was raised by staff members of her school.
[6]T72.17-22.
Court Integrated Services Program (‘CISP’) and Australian Community Support Organisation (‘ACSO’) Reports from December 2023 note that Ms Terei’s partner at the time, who is also the father of her children and Ms Wells’ son, was perpetrating family violence against her, including economic abuse.[7] She had engaged in efforts prior to the alleged offending to leave him. Ms Terei states that at the time of her remand in May 2024, she was residing with Ms Wells and her eldest child. She can return to this address if granted bail.
[7]Affidavit in support, JP-4 and JP-5.
Ms Terei spent significant periods of her childhood moving between the care of different persons, though not formally through the Child Protective Services,[8] and comes from a disadvantaged social and economic background.
[8]T73.15-19.
She receives Centrelink payments, and has casual employment available working for her cousin, Mr Jason Garton.
Criminal history
Ms Terei has a criminal history, beginning in the Children’s Court when she was 17 years old.[9]
[9]See affidavit in support, exhibit JP-3.
Her criminal history mostly involves driving offences and dishonest offending, such as theft and the theft of motor vehicles. She was convicted of burglary in 2024 and 2017 and has previous offences of burglary and robbery in 2009. The latter offences are less relevant due to their historic nature, her youth at the time, and the fact that she was sentenced to probation without conviction in relation to these offences.
A common feature of Ms Terei’s history is the breaching of court orders, with a high number of these offences having occurred in 2017. Her history includes contravening CCOs, failing to answer bail, and committing indictable offences whilst on bail. Her offending was generally such that a community based sentence was appropriate, although she was sentenced to terms of imprisonment of approximately 1-2 months on four occasions.
There are several instances in her history of possessing drugs, possessing a controlled weapon, and violent offending; namely, unlawful assault, recklessly cause injury, and intentionally cause injury.
Applicant’s submissions
The written and oral submissions commenced by directly addressing the applicability of the considerations in s 3A to these circumstances and the requirement for the Court to make ‘more than a tokenistic acknowledgement’ of these factors.[10]
[10]T71.26-T72.2.
The applicant referred to the historic and ongoing discriminatory factors that mean that 48% of Aboriginal adults and 82% of Aboriginal children and young people in detention were on remand. The applicant notes that, per Re GG,[11] this gross overrepresentation ‘is married to the dangerousness of custody and detention for them’.[12]
[11][2021] VSC 12.
[12]At [43].
The applicant relied on her personal circumstances, the availability of a static address with Donna Wells and her 14 year old daughter, ongoing employment at her cousin’s aluminium and glazing company, evidence that the applicant has had some success in engaging with alcohol and drug treatment and the conditions of the CCO to support her application for bail. The applicant has a referral to Banyule Community Health for alcohol and drug support.
The applicant submits that, beyond the considerations in s 3A, the Court should take into account the opportunity for the applicant to participate in the Koori Court should her matter resolve. Being on remand may instead have a deterrent effect on this potential participation and may also limit the applicant’s ability to engage with any of the cultural programs suggested across the course of a plea in the Koori Court.
The applicant also noted at the hearing that s 3A of the Bail Act should be read in conjunction with s 19(2) of the Charter of Human Rights and Responsibilities Act 2006, which asserts that Aboriginal persons hold distinct cultural rights.
The applicant submits that the prosecution case is not overwhelming and that the triable issues make it ‘weak and tenuous’.[13] The applicant further notes that there are elements of delay in the proceedings.
[13]T77.11-13.
The applicant admits her criminal history but notes that her history consists entirely of summary matters and the longest imprisonment period of two months.
Witness testimony
The Court was assisted by the attendance of Ms Donna Wells and Mr Jason Garton.
Ms Wells is the mother of the applicant’s former partner and proposes for the applicant to live with her if she is granted bail. Ms Wells is the primary carer of the applicant’s 14 year old daughter. The applicant has lived with Ms Wells since she was 17 years old, interspersed with periods where she lived elsewhere.
Ms Wells was clear that she would not tolerate any substance abuse in her home and, given her own personal experiences, understood the dangers of drug use. Ms Wells said that she would contact the police if she was aware that the applicant was breaching her bail conditions.
I consider Ms Wells a credible witness who expressed a desire to open her home once more to the applicant.
Mr Garton has offered to continue providing casual work to the applicant at his fabrication business.
Respondent’s submissions
The respondent submitted that the applicant poses an unacceptable risk of endangering the community and of failing to answer bail.
The respondent points to the applicant’s CISP report and her rejection of a proposed detox program as evidence that the applicant lacks insight into a significant issue in her life. Instead, the applicant has what the respondent describes as an ‘absolutely appalling’ history of failing to appear on bail and is likely to continue this behaviour.[14]
[14]T82.30-31.
The respondent’s main concern is that the applicant may have further dealings with the firearms that have not been recovered and that this poses an unacceptable risk to the public. The respondent notes that other firearms have reportedly been recovered from individuals with extensive criminal histories, and police intel is that the applicant has knowledge of the other weapons’ whereabouts.
Additionally, the respondent expressed concerns about the proposed bail address and the likelihood of either Ms Wells or Mr Garton being able to report a breach of a bail condition.
Informant’s testimony
The informant was called to provide evidence about the strength of the prosecution case. Canvassing the admissibility of evidence and the detail of the case at this stage is unnecessary.
The informant spoke to concerns that the applicant may have knowledge of the stolen firearms that have not been recovered and an ability to continue to deal with these weapons if granted bail.
The informant also expressed doubts about the proposed address and made what I consider to be ill-founded comments about the risk of the applicant fleeing the jurisdiction.
Consideration
The reforms to the Act
This application for bail comes before the Court only months after the introduction of what members of the Victorian Parliament considered ‘significant reforms’ to the Bail Act 1977.[15] A large part of these reforms was a focus on the Aboriginality of the applicant, requiring the Court to pay particular attention to this aspect of an applicant’s cultural identity in an attempt to make the bail system, in the words of the Attorney-General, ‘safer, fairer and more balanced’.[16] As it was put in the Second Reading Speech, the changes are ‘intended to support the common law responsibility on bail decision makers to ensure incarceration rates of Aboriginal peoples are not further compounded unless there is good reason’.[17]
[15]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2023, 3163 (Jaclyn Symes, Attorney-General, Minister for Emergency Services).
[16]Ibid, 3164.
[17]Victoria, Parliamentary Debates, Legislative Assembly, 31 August 2023, 2941 (Harriet Shing, Minister for Water, Minister for Regional Development, Minister for Equality).
The critical provision, which I have set out in full above, is s 3A. This section requires the bail decision maker to ‘take into account any issues that arise due to a person’s Aboriginality’ and sets out a non-exhaustive list of considerations.
The crucial phrase in this provision, and the phrase that must be given careful consideration if these reforms are to be as ‘significant’ as intended, is take into account. It is a somewhat innocuous phrase and appears another 18 times throughout the Act. However, in this section, we cannot allow the process of taking into account the Aboriginality of an applicant to become anything less than the radical transformation to the decision making process that was called for by the Yoorrook for Justice Report and following the tragic death of Veronica Nelson. It cannot simply become a box-ticking exercise on the way to considering the other statutory elements in the bail flow chart. It must inform every consideration and the perception of every aspect of the applicant’s application and encourage us to not contribute to incarceration levels unless there is a good reason to do so. It requires the decision maker to look beyond the personal circumstances of the applicant and to the entrenched disadvantages of a class of people of which the applicant is a part.
It is a clearer exercise to see how the provision informs the consideration of ‘exceptional circumstances’ and ‘compelling reasons’ for the grant of bail in ss 4A and 4C. But the provision deliberately sits apart from the other ‘surrounding circumstances’ in s 3 and must equally apply when considering the ‘unacceptable risk’ test under s 4E.
As the Court of Appeal affirmed in HA (a pseudonym) v The Queen, the assessment of ‘unacceptable risk’ must ‘be relative to all the circumstances’.[18] I consider that this makes the unacceptable risk test a balancing act, between the possible risks outlined in s 4E(1)(a) and all of the circumstances of the applicant. When considering unacceptable risk for an Aboriginal person, the decision maker must now have each of the factors identified in s 3A at the forefront of their reasoning. As such, particularly in applications like this one where there are undeniable elements of risk and the applicant’s risk undoubtedly teeters on the edge of being unacceptable, the taking into account of the s 3A factors may nevertheless mean that the applicant does not pose an unacceptable risk.
[18]HA v The Queen [2021] VSCA 64, [6].
While the increased emphasis on the applicant’s Aboriginality may appear to have the practical effect of requiring more of the respondent in demonstrating that any risk is ‘unacceptable’, it would be a mistake to miss the focus of these reforms on the reasoning process of the decision maker, especially of ss 3A(1)(a) to (c) which apply to any person of Aboriginal or Torres Strait Islander heritage. When faced with any application, but especially an application such as this one, the decision maker must take into account that they have an opportunity to not contribute to the systemic incarceration of Aboriginal persons. This notes that Ms Terei is, by way of her Aboriginality alone, at higher risk of harm in custody. A failure of our system to recognise that Aboriginal people, especially women, are inherently vulnerable was a chief finding in the inquest into the death in custody of Veronica Nelson and in Yoorrook for Justice.[19]
[19]Coroner McGregor, Coroners Court of Victoria, Inquest into the Passing of Veronica Nelson (30 January 2023) Appendix B, 1; Yoorrook Justice Commission, Yoorrook for Justice - Report into Victoria’s Child Protection and Criminal Justice Systems (31 August 2023) 296-7.
This is by no means to suggest that the bail of an Aboriginal person becomes a foregone conclusion and usurps the discretion of the decision maker. It is not a more lenient test and the paramount consideration remains the safety of the community and the applicant from risk which is an unacceptable risk. However, the applicant’s Aboriginality is a weighty factor in bail applications.
The present application
As I have noted above, Ms Terei has a prima facie entitlement to bail subject to the terms of the unacceptable risk test. I must refuse bail if the respondent satisfies the Court that Ms Terei poses an unacceptable risk of endangering the safety or welfare of any other person, failing to answer bail and interfering with a witness or otherwise obstructing the course of justice.
The Court must have regard to the relevant surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable. I have had regard to the viva voce evidence, the affidavits in support on behalf of the applicant and respondent, along with the submissions.
Ms Terei is a 32 year old Torres Strait Islander and Aboriginal woman of the Yorta Yorta Nation. Her Aboriginality comes through her mother. In considering whether she poses an unacceptable risk if granted bail, I have considered the issues that arise due to her Aboriginality. This includes regard to the elements in ss 3A(1)(a) to (c), which have general work to do on any bail application concerning an Aboriginal person, and ss 3A(1)(d)(i)–(vi), which require a more nuanced assessment of the individual circumstances. A decision maker must also have regard to s 3A(1)(e).
Ms Terei is an Aboriginal woman who was removed from any connection to her Aboriginal culture following the premature death of her mother. While Ms Terei had some support from family from her father’s side and limited access in recent times to professional support (via the CISP and ASCO program), none of the support appears to have provided Ms Terei with an opportunity to develop cultural connection and understanding. If Ms Terei’s case resolves and she accesses the Koori Court, it may provide a unique opportunity for her to engage in a culturally appropriate process and to develop a better understanding of her culture and form some connection to this aspect of her identity. This is precisely the type of consideration that it is intended for a decision maker to engage in under s 3A(1)(e).
On a bail application such as this one, it is difficult to disentangle or quantify how the issues listed in ss 3A(1)(d)(i)-(vi) bear on Ms Terei. The issues often overlap and it is not always possible to put issues into neat boxes that precisely correspond to the legislative descriptions. The evidence is necessarily confined and a bail application does not always allow for a thorough exploration or testing of the evidence. However, the following issues in Ms Terei’s case are pertinent. Ms Terei has four children between eight and fourteen years old who are in the care of family members. The eldest child is in the care of her paternal grandmother Donna Wells, who is Ms Terei’s former partner’s mother. Prior to being placed on remand, this was the address where Ms Terei was said to be living.
Ms Terei has expressed a desire to play an active role in the lives of all her children and I accept this is an important factor for her personally and for her children. It is particularly important that Ms Terei be given every opportunity to engage and care for her children. While this is a critical issue for any parent seeking bail, it has particular significance for an Aboriginal parent given the intergenerational and ongoing trauma suffered by the separation of Aboriginal children from their parents, and the ongoing pain the separation causes.[20]
[20]Yoorrook Justice Commission, Yoorrook for Justice - Report into Victoria’s Child Protection and Criminal Justice Systems (31 August 2023) 108; 178-9; 296.
Ms Terei has a significant history of abuse, neglect, loss, family violence, and substance dependence. Ms Terei has been the victim of family violence in all her serious adult relationships. This family violence included physical assault, threats of violence, coercive and controlling behaviour and economic abuse.
The CISP report dated 18 December 2023 is extremely informative and revealing of her circumstances in the immediate period before the alleged offending on 20 December 2023. Ms Terei was referred to Orange Door on 12 October 2023 where it was disclosed that she was a victim of family violence perpetrated by her child’s father and her ex-partner. She resided within emergency accommodation with a view to escape the violence and was referred to a women’s refuge, but the referral was unsuccessful due to zero capacity. Regrettably, she did not go to live with Donna Wells at this time, as it seems that Ms Wells was awaiting her new social housing at or about this time and may not have been able to provide Ms Terei with accommodation.[21] Instead, Ms Terei returned to live with her ex-partner on 25 October 2023.
[21]T14.17-30.
The CISP report confirms that Ms Terei received 21 weeks of case management support. She participated in seven alcohol and drug counselling sessions and completed six of ten days in a residential detox program from 5-10 December 2023. The report notes that she was to be commended for her efforts. Prior to attending detox in December 2023 Ms Terei reported having relapsed badly. Regrettably, she self-discharged from the program before it completed. However, it gives me some hope that although Ms Terei reported that detox was a ‘traumatic experience’, she also considered it ‘the best thing that I have ever done’.
Ms Terei was due to commence a four month alcohol and drug rehabilitation admission with the Salvation Army on 15 December 2023, but advised CISP that she did not need it. With the benefit of hindsight, her journey to recovery and sobriety in December was just in its infancy and she required much more ongoing support and treatment. It is not surprising that within days of discharging herself from such a challenging experience with unstable accommodation she found herself in a vulnerable position and offended again and breached her bail conditions.
I make the observation that it is well known that recovery from addiction will inevitably have periods of relapse and is not managed in a matter of days or weeks.[22] Recovery is not a linear process. It is an important factor that Ms Terei engaged in detox programs, counselling, and psychological treatment while on bail. I consider this demonstrates that she made a genuine effort to address her drug problem. This substance abuse will be a critical factor in her ability in the future to not reoffend and to comply with any court orders. I note that Ms Terei managed to participate in the detox program and counselling as part of the CISP program while she was experiencing and fleeing family violence.
[22]See for example Carlo DiClemente and Michele Crisafulli, ‘Relapse on the Road to Recovery: Learning the Lessons of Failure on the Way to Successful Behaviour Change’ (2022) 48 Journal of Health Service Psychology 59; John Kelly et al, ‘ How Many Recovery Attempts Does it Take to Successfully Resolve an Alcohol or Drug Problem?’ (2019) 43(7) Alcoholism: Clinical & Experimental Research 1533.
Unfortunately, CISP recommended that the CISP bail conditions be removed on 18 December 2023 and just two days later, it is alleged that Ms Terei was involved in the offending which is the subject of this bail application. The alleged offending is serious. I have had regard to the victim’s desire that the applicant not be granted bail. Amongst a vast quantity of goods stolen, there were seven guns, which is cause for serious concern. The inability of police to recover five of the seven stolen firearms was the reason that bail was refused by the Magistrates’ Court on 15 May 2024.
I understand that there remains two firearms that are yet to be located. The respondent’s primary concern is that Ms Terei may have further dealings with the firearms that have not been recovered and that this poses an unacceptable risk to the public. It is further alleged that Ms Terei has knowledge of the other weapons’ whereabouts. However, the alleged offending occurred on 20 December 2023 – Ms Terei was arrested almost five months later on 13 May 2024, and there is no evidence that she had any further dealings with the firearms in that period. Taken at its highest at this time, the evidence is that she told police on the day of her arrest that she might be able to find out where the firearms are located. Whilst the whereabouts of any stolen firearms is a matter of serious concern, I am not overly persuaded by the respondent’s argument that Ms Terei knows the whereabouts of the firearms or is likely to have further dealings with the unlocated firearms.
Now is not the time to comment on the prosecution case or the likelihood of any defence that may be available to the charges against Ms Terei. It seems, however, that the case against her is strong, albeit with some triable issues.
Ms Terei acknowledges her criminal history and previous sentences of imprisonment. The criminal history consists entirely of summary matters. What is of serious concern is her bail compliance history. She was on bail at the time of the alleged offending and has a repeated history of disregarding court orders and breaching bail. The charges against her while on bail were resolved on 19 March 2024 and she was sentenced to an 18-month CCO. The CCO includes a treatment and rehabilitation condition, judicial monitoring and community work. Unfortunately, there was little evidence before the Court about the nature of support or treatment that will be available to Ms Terei as part of the CCO.
Ms Terei has been assessed by the ACSO as suitable for an episode of complex counselling and she has asked that the treatment be provided by Banyule Community Health. I am told that she is on a waiting list for Banyule Community Health, but there was no evidence of the expected duration of the wait time for the service. In the interim, Ms Terei has access to DirectLine, which is a publicly available drug counselling service. Given the extent of her drug problem, an online or telephone service is unlikely to be protective or adequate. She also has a telehealth appointment with Dr Farrah at the Hastings Medical Centre on 2 June 2024. She had an appointment with her case manager earlier in the week that was cancelled due to her incarceration and I was not informed about the next date scheduled with the case manager.
It is difficult at this stage to assess any future compliance with the CCO given the early stages of the order. However, having regard to the CISP report dated 18 December 2023, there is strong evidence of Ms Terei’s recent willingness and ability to comply with bail. This is contrasted with her poor history of compliance with bail and her six previous, separate undertakings of bail as of 20 December 2023 and her failure to comply with the conditions.
It seems that the previous assistance and supervision of CISP was especially important and kept Ms Terei free from offending for some time, and importantly began to address her complex underlying issues, including the serious drug problem and strategies for escaping family violence.
If granted bail, Ms Terei will need the assistance and supervision provided now under the CCO. Her ability to comply appropriately with the terms of any order is connected in part to her participation and acceptance of the treatment and conditions which will be imposed on her by the CCO. I do not doubt Ms Terei’s motivation to address her drug problem, however recovery will take time, access to adequate professional support, and some amelioration in her personal circumstances.
Ms Terei has the support of family. Ms Wells has agreed to provide her with accommodation in Heidelberg Heights. Ms Terei’s daughter lives at this address but spends some time with her father in Hastings. The unit has two bedrooms. Ms Wells indicated that she would contact police if Ms Terei breaches her bail conditions and said she would not tolerate having her live there in a drug affected state. Ms Wells said she could facilitate any communication between Ms Terei and Ms Terei’s ex-partner about arrangements for their daughter.
The respondent submits there are concerns with Ms Terei living at this address. It was suggested by Detective Hamilton that Ms Wells is unlikely to report any breaches of the applicant’s bail as it may affect her relationship with her granddaughter. Evidence was also given by Detective Hamilton that Ricky Burrows lives at the address half of the time and that Ms Wells has a criminal history.
While I appreciate that residing with Ms Wells may not be ideal, what is clear is that Ms Wells has been caring for Ms Terei and her daughter over a long period. Although Ms Wells has a history, none of it gives me any concern. I believe that Ms Wells will not tolerate drugs in her home and that she can provide a safe place for Ms Terei and her daughter. While it will undoubtedly be hard for Ms Wells to report Ms Terei for breaching bail conditions, I believe that Ms Terei’s daughter is old enough to understand the seriousness of her grandmother’s promise to the Court. It is a sad situation that Ms Wells and the applicant’s daughter are put in this position.
Ms Terei’s cousin, Jason Garton, gave evidence that he can provide her with employment.
I have had regard to the opportunity and desire to meaningfully participate in the Koori Court should the matter resolve. I accept that being on remand can have a deterrent effect to Ms Terei participating in Koori Court, given the potential additional delay while awaiting a plea date. Added to this is the fact that being on remand limits Ms Terei’s ability to engage with culturally appropriately therapeutic services which may be proposed by Elders and respected persons over the duration of a plea.
Conclusion
There is always a risk when bail is granted. Ms Terei has a difficult but not impossible task ahead of her if she is granted bail. However, the period from July to December 2023 demonstrates that she has the strength and capacity to do better for herself and, in turn, her children.
Ms Terei should not think that she will continue to be granted bail. In fact, each time she comes before the Court, the hurdle becomes higher and more difficult. Considering all the matters that I have discussed, and the imposition of the current CCO, I am not satisfied that the respondent has established that with the appropriate conditions Ms Terei is an unacceptable risk. However, given her poor compliance with bail conditions and the lack of evidence concerning the CCO conditions, I am only prepared to grant her bail for a limited period. I will therefore require Ms Terei to present herself to me in just over two weeks on 17 June at which time I will consider whether to extend her bail.
This is by no means an easy decision. However, when I look at Ms Terei, a woman who has been denied access to her cultural heritage, who is expressing a desire for cultural support to turn a corner in her life, and with significant personal struggles, I see no good reason for contributing to the stark overrepresentation of Aboriginal people on remand.
As a result, I conclude that bail should be granted on the following conditions:
(a) Bail is granted for the period until 17 June 2024 when the applicant is to attend the Supreme Court at Melbourne and then surrender herself and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender herself into custody.
(b) The applicant reside at the Heidelberg Heights address, and not change that address without the leave of the Court.
(c) The applicant remain at those premises between the hours of 10pm until 5am each day (‘the curfew hours’) for the duration of bail.
(d) The applicant not contact in any way or associate with Kylie Hanley, Joshua Cook, Luke Wells, Ricky Burrows, Adrian Kerr, or any witnesses for the prosecution, except for the informant.
(e) The applicant present herself at the door of the premises during curfew hours if and when called upon by a member of Victoria Police to do so.
(f) The applicant abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(g) The applicant is to accept all referrals from and follow lawful directions of Corrections.
(h) The applicant is to provide a copy of these conditions to her general practitioner, Dr Farrah, at Hastings Family Medical Centre prior to attending her appointment scheduled for 2 June 2024.
(i) The applicant is to possess only one mobile phone and the applicant is to provide this mobile number, the PIN code and the IMEI number of this mobile phone to the informant.
(j) The applicant is not to operate a motor vehicle.
(k) The applicant must surrender any passport or other travel documentation.
(l) The applicant is not to leave the State of Victoria.
(m) The applicant is not to attend any points of international or interstate departure.
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