Re Terei (No 2)

[2024] VSC 352

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:	17 June 2024
DATE OF RULING:	21 June 2024
CASE MAY BE CITED AS:	Re Terei (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 352

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CRIMINAL LAW – Bail application – Re Terei [2024] VSC 294 – Drug addiction – Compliance with bail conditions – Whether unacceptable risk – Family violence – Applicant identifies as Aboriginal – Bail Act 1977 (Vic) s 30A – Bail reform.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Khan	Victorian Aboriginal Legal Service
For the Respondent	Mr E Fryar	Office of Public Prosecutions

HER HONOUR:

1. On 30 May 2024, I granted bail to Haley Terei for a limited period of two weeks, on stringent conditions.

1. Ms Terei appeared before the Court on 17 June 2024, at which time I was to decide whether to extend Ms Terei’s bail. I extended bail for Ms Terei. These are my reasons.

1. I refer to my earlier ruling Re Terei [2024] VSC 294 for the background circumstances to this matter.

1. The only issue for consideration in Ms Terei’s application for bail was whether she posed an unacceptable risk of endangering the safety and welfare of any other person, failing to answer bail, or interfering with a witness or otherwise obstructing the course of justice.

1. On the return of this application, the respondent confirmed that they opposed any extension of Ms Terei’s bail. The respondent filed an affidavit in opposition dated 17 June 2024. The informant’s report exhibited to the affidavit revealed the following:

(a)   On 4 June 2024, Ms Donna Wells emailed the police stating that Ms Terei was ‘definitely back on the drugs and was arguing with family/daughter’. Consequently, Ms Wells had asked Ms Terei to leave her residence on 3 June 2024, and did not want her to come back to the house;[1]

[1]Ms Wells gave evidence at the bail hearing on 30 May 2024 that Ms Terei could reside at her property in Heidelberg Heights.  This was a condition of Ms Terei’s bail.

(b)  On 6 June 2024, Ms Terei’s solicitor, Mr Jacob Patterson, informed the respondent that Ms Terei was experiencing family violence. He explained that this was the reason for her no longer residing at her designated bail address, not that she was showing a disregard for her bail conditions;

(c)   The informant was notified that Ms Terei failed to attend drug testing on 7 June 2024 as directed, and did not contact Corrections in relation to the non-attendance;

(d)  Ms Terei attended her first drug counselling appointment with Banyule Community Health on 12 June 2024; and

(e)   Ms Terei failed to attend a supervision appointment at South Morang Community Correctional Services (‘CCS’) on 13 June 2024, and did not contact Corrections in relation to the non-attendance until the following day.

1. The Court also received a judicial monitoring report dated 11 June 2024, which spoke to the difficulties Ms Terei has encountered since her release on bail on 30 May 2024. 

1. The report stated that Ms Terei had endeavoured to change her appointments with Corrections from South Morang CCS on 3 June 2024 to Reservoir CCS, as the latter location was easier for her to reach. During a phone supervision appointment on 5 June 2024, Ms Terei informed the author of the report that she had been evicted from her accommodation with Ms Wells, and that she currently had no fixed address. Ms Terei had endeavoured to contact the informant to notify him of the change in her residential address, but was unable to get in contact. Ms Terei also confirmed to the author of the report that she had contact with Mr Minos, a co-accused from her previous matters, in breach of the non-association condition on her Community Correction Order (‘CCO’). Further, Ms Terei did not have a phone, which not only created difficulties in communicating with Corrections to arrange appointments, but also meant that she had lost access to web banking and her Centrelink online account. Ms Terei alleged that she was experiencing ongoing family violence threats, and reported that she was reaching out to a support service with which she had previously engaged.

1. Ms Terei did not file an affidavit in support. However, she was able to provide instructions to her counsel during the hearing, and she informed the Court of various matters from the dock. While her evidence was not under oath, there was no suggestion that the information provided to Court was untrue or unreliable.

1. The Court was informed that whilst Ms Terei was residing with Ms Wells there was significant pressure placed on Ms Wells by her son, Luke Wells, to have Ms Terei evicted from those premises. The evidence before the Court was that Ms Terei had previously experienced quite severe family violence, including at the hands of Mr Wells. Ms Terei has apparently made a private application for a family violence intervention order against Mr Wells which is yet to be determined.

1. The Court was told that after being evicted from Ms Wells’ residence, Ms Terei had been residing at a factory in Craigieburn owned by her cousin, Mr Jason Garton, which had a purpose-built residential facility. Mr Garton is prepared for Ms Terei to reside at that premises on an ongoing basis, and he also resides there four nights a week.

1. Ms Terei confirmed that she had made some enquiries with a family violence network to assist with sourcing alternate accommodation, and this was a reason no formal application to vary her bail address had been made.

1. In relation to Ms Terei’s contact with the co-accused Mr Minos, the Court was informed that Mr Minos had learned of Ms Terei’s whereabouts and, without an invitation, attended at the Craigieburn factory where Ms Terei works and now lives.

1. The Court was made aware that Ms Terei no longer has a phone, as it was handed into police on her arrest.  She currently has access to Mr Garton’s phone and he is willing to take calls from Corrections and authorities on her behalf.

1. Ms Terei participated in a telehealth appointment with her general practitioner, Dr Farrah, on 2 June 2024.  Dr Farrah’s clinic is in Hastings.  Dr Farrah provided Ms Terei with a referral letter to Frankston Mental Health and Wellbeing, which provides an alcohol and drug addiction service, psychologists and psychiatrists.  Ms Terei told the Court that this referral was no longer feasible given her current address, and that she is now seeking a general practitioner closer to her in the Broadmeadows area. Ms Terei will endeavour to change all her appointments with Corrections to a CCS in the Broadmeadows area.

1. Ms Terei told the Court that when she first moved into the factory in Craigieburn, she spoke to her solicitor, Mr Patterson, who provided her with the phone number of a drug and alcohol treatment facility to help with her substance problem.  Ms Terei confirmed that she had completed an assessment with that service and was told that, because she was on a CCO which provided drug and alcohol counselling and support, the facility could not help her and she would have to access treatment via Corrections.

1. Ms Terei informed the Court that she no longer has any form of identification.  When she tried to get emergency accommodation due to family violence, she could not confirm her identity and as such, the providers of emergency accommodation were unable to assist her.  Ms Terei informed the Court that after the bail application on 30 May 2024, she went to the police station with her solicitor Mr Patterson to see if the police could provide her with some form of identification.  Without identification, Ms Terei is unable to purchase a phone, and without a SIM card, Ms Terei cannot access her ‘MyGov’ Services Australia account, her bank account and other important information.

1. The Court was informed that at this stage, beyond the appointment with Banyule Community Health on 12 June 2024, there is no plan or appointments organised through Corrections to get drug and alcohol support and treatment.

Conclusion

1. At first blush, it could be assumed that Ms Terei has fallen back into bad habits and demonstrated a disregard for the bail conditions imposed by the Court on 30 May 2024. However, with the benefit of further information, and importantly, Ms Terei’s explanations, it is clear Ms Terei found herself in an exceedingly difficult position just days after being granted bail. She was evicted from Ms Well’s residence and was effectively homeless.  Despite her best efforts, without any identification, Ms Terei was denied access to the much needed safe emergency accommodation.

1. Ms Terei attempted to contact the informant about her change of address.  Regrettably, the informant was not available at the time.

1. To Ms Terei’s credit, and with the assistance of her solicitor, Mr Patterson, she attempted to get assistance for her drug problems. It appears she has fallen between the cracks, as she is apparently precluded from accessing other drug rehabilitation services whilst subject to a CCO.  While I make no criticism of Corrections, at this stage there is nothing concrete in place to assist Ms Terei with her serious drug problem, which underlies her day to day struggles.

1. Ms Terei found herself back in the community on stringent bail conditions in circumstances where, without the proper supports, it became inevitable that she would not be able to comply with those conditions. At the conclusion of this hearing, I asked if Ms Terei had access to a Myki card, to ensure that she would not incur any fines if she was to use public transport.  Once again, it was her solicitor who indicated that he would personally ensure that Ms Terei left the Court with a Myki card.

1. While the recent amendments to the Bail Act1977 (Vic) are a significant step towards making the bail system safer and more balanced for Aboriginal persons, the failure to have corresponding social policy and social reforms that provide the practical assistance and support to people such as Ms Terei will undermine the outcomes envisaged by the amendments.

1. It is nevertheless worth recognising that, without the recent amendments repealing s 30A (offence to contravene certain conduct conditions), Ms Terei would undoubtedly have been arrested and potentially remanded prior to this bail hearing. This change represents a significant step in the right direction and demonstrates that the amendments do operate effectively in an area that previously had a ‘disproportionate impact on women, Aboriginal people and people experiencing disadvantage’.[2]

   [2]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2023, 2899 (Anthony Carbines, Minister for Police, Minister for Crime Prevention, Minister for Racing).

1. Ms Terei has been a victim of serious family violence. She is fearful of being exposed to Mr Wells, a perpetrator of family violence on her in the past and she is currently living at a residential address that is not necessarily secure, and that is known to at least one co-accused. Fortunately, Mr Minos has been told by people at that address that he is not welcome and should not return.  Ms Terei’s safe and lawful existence in the community is not sustainable in the absence of secure housing, and yet the fact that she does not have identification prohibits her from applying for family violence refuge. Her lack of identification also prevents her from undertaking even the simple task of purchasing a SIM card to be able to use a mobile phone, and this means she is unable to access her bank and MyGov accounts. 

1. The result is that Ms Terei is dependent on the goodwill of her cousin who has taken her in and provided her with interim stable accommodation and work. Ms Terei informed the Court that her cousin has paid for her to undertake a welding course to improve her skills and expand her opportunities within his company.  Ms Terei has also been dependent on the goodwill of her solicitor, Mr Patterson of the Victorian Aboriginal Legal Service, who has provided more than legal advice to Ms Terei. However, it is fanciful to think that Ms Terei will be able to comply with bail conditions, attend appointments or make necessary contacts without permanent, secure housing and access to her own mobile phone.  Equally critically, Ms Terei must be provided with a referral to drug and alcohol counselling as a matter of urgency given the seriousness of her substance abuse problem. 

1. At the conclusion of the hearing, I asked Ms Terei if she thought her bail conditions should include judicial monitoring, noting that she had onerous conditions and that judicial monitoring was already in place at the Magistrates’ Court.  Ms Terei indicated that she thought it would be of benefit to attend judicial monitoring before me in six weeks’ time. 

1. I have concluded that Ms Terei does not pose 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.  To the contrary, I consider Ms Terei has endeavoured to the best of her ability to meet the obligations and responsibilities imposed upon her by the bail conditions I set on 30 May 2024.  The failure is the lack of resources and support in the community for Ms Terei, who is vulnerable and in need of protection and help as she endeavours to remain in the community safely and lawfully. 

1. I conclude that bail should be granted to Ms Terei on the following conditions:

(a)   She attend the Magistrates’ Court at Melbourne on 19 June 2024 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)  She reside at the Craigieburn address, and not change that address without the leave of the Court.

(c)   She remain at those premises between 10pm until 5am each day (‘the curfew hours’) for the duration of bail.

(d)  She not contact in any way or associate with Kylie Hanley, Joshua Cook, Luke Wells, Ricky Burrows, Adrian Kerr, or any witness for the prosecution, except the informant.

(e)   She 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)    She 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)  She accept all referrals from and follow lawful directions of Corrections.

(h)  She possess only one mobile phone and is to provide this mobile number, the PIN code and the IMEI number of this mobile phone to the informant. 

(i)     She not to operate a motor vehicle.

(j)     She surrender any passport or other travel documentation.

(k)  She not to leave the State of Victoria.

(l)     She not attend any point of international or interstate departure.

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