Re Villani
[2021] VSC 638
•1 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0241
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by DALLAN VILLANI |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 23 & 28 September 2021 |
DATE OF JUDGMENT: | 1 October 2021 |
CASE MAY BE CITED AS: | Re Villani |
MEDIUM NEUTRAL CITATION: | [2021] VSC 638 |
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CRIMINAL LAW – Bail – Two alleged sprees of dishonest offending, the second occurring whilst applicant on bail for first – 23-year-old offender with drug problem – Significant criminal history – Offending all drug related – Availability of residential drug treatment place at Odyssey House – Delay – COVID-19 – Strong family support – Surety available – Exceptional circumstances established – No unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Avis | Leanne Warren & Associates |
| For the Respondent | Mr P Collins | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applies for bail on a large number of charges laid in two separate groups by Detective Senior Constable Martin Salter, whom I will call the respondent.
The first group of charges (‘the first Salter matter’) are for offences allegedly committed between 29 April 2019 and 18 February 2021. The charges were laid on 18 February 2021, and are for theft of a motor vehicle (4 charges), obtaining property by deception (4 charges), handling stolen goods (4 charges) and possessing housebreaking implements.
The second group of charges (‘the second Salter matter’) are for offences allegedly committed between 1 and 3 March 2021. The charges were laid on 4 March 2021, and are for theft of a motor vehicle (4 charges), contravening a conduct condition of bail (2 charges), committing an indictable offence whilst on bail (2 charges), handling stolen goods (27 charges) and dealing with property suspected of being the proceeds of crime (2 charges).
The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing a Schedule 2 offence under the Bail Act 1977 (‘the Act’) whilst on bail for a Schedule 2 offence.[1]
[1]The Act, s 4AA(2)(c).
Chronology
Having been arrested and charged with the first Salter matter on 18 February 2021, the applicant was released on police bail with, inter alia, conditions requiring him to reside at 2/20 Royal Avenue Springvale and to remain at that address between the hours of 10.00pm and 6.00am.
The alleged offending the subject of the second Salter matter occurred within two weeks of his release on the above grant of bail.
The applicant was arrested on the second Salter matter on 3 March 2021 and then remanded in custody on 4 March 2021.
He made an application for bail on those charges on 1 September 2021. Bail was refused in Heidelberg Magistrates’ Court on 2 September 2021. At the same time, bail was revoked in respect of the first Salter matter.
A further application for bail in Heidelberg Magistrates’ Court was refused on 21 September 2021.
An application for bail commenced in this Court on 23 September 2021 and returned for a second day of hearing on 28 September 2021.
Co-accused
There are two co-accused in the first Salter matter, Timothy Georgiadis (‘G’) and Steven Krestevski (‘K’). K is also the co-accused in respect of the second Salter matter. Neither has made any application for bail.
The alleged offending
First Salter matter
The alleged offending in this matter arises out of a series of incidents alleged to have occurred between 28 April 2019 and 12 February 2021. In summary, the prosecution case is as follows:
Overnight between 28 and 29 April 2019, two vehicles, including a white Mercedes Benz sedan; two sets of car keys; two mobile phones; and a handbag containing a credit card were stolen from a home in Keilor East. At 8.13am on 29 April 2019, it is alleged that K drove the stolen Mercedes Benz to the Golden Star General Store in Thomastown, with the applicant in the passenger seat. Upon arriving at the store, the applicant allegedly exited the vehicle and entered the store and used the stolen credit card to make two transactions to the value of $48.00, before he and K left in the stolen vehicle.
Overnight between 24 and 25 January 2021, a Mazda 3 was stolen from a driveway in Coburg. Several days later, between 30 and 31 January 2021, number plates were stolen from a vehicle in Glenroy. At 4.50am on 3 February 2021, a bank card was stolen from a vehicle in Westmeadows. At 6.00am that same day, CCTV captured G driving the stolen the Mazda 3, bearing the stolen number plates, into the Tap & Go Car Wash in Campbellfield. The applicant was seen as a passenger in the vehicle, and subsequently made a purchase of $5.20 from a vending machine at that location. On 4 February 2021, the Mazda 3 was located by police and analysed, and the applicant’s palm prints were located on a door and window, on the inside and outside of the vehicle.
On 3 February 2021 a Land Rover Discovery was stolen from a home in Coburg. On 4 February 2021 the Land Rover was located and analysed, and the applicant’s palm print was located on the outside of the vehicle.
Between 11.00pm on 4 February 2021 and 5.00am on 10 February 2021 a Jeep Cherokee was stolen from a home in Mernda. At 9pm on 10 February 2021, CCTV captured G driving the Jeep Cherokee to a Coles Express in Thomastown, and filling it up with fuel. The applicant was captured on CCTV exiting the passenger side of the vehicle, entering the store, and then returning to the passenger side of the vehicle before both he and G drove off without paying for the fuel.
At 2.11 am on 11 February 2021 a wallet and bank cards were stolen from a vehicle in Lalor. On 12 February 2021 CCTV captured the applicant attending a 7-Eleven service station in Pascoe Vale and using one of the stolen bank cards to purchase cigarettes, to the value of $99.48. On 3 March 2021, when the applicant was arrested in relation to the second Salter matter, shorts he was seen wearing on CCTV in this matter were located in his possession.
The applicant was arrested on 18 February 2021 at his home in Springvale. A glass breaker, torches and two items of clothing allegedly worn by him in CCTV from the Tap & Go Car Wash in Campbellfield and Coles Express Thomastown were located and seized. He made a ‘no comment’ interview and was released on police bail as indicated earlier.
Second Salter matter
The alleged offending in this matter arises out of a series of incidents that are alleged to have occurred between 1 and 3 March 2021. In summary, the prosecution case is as follows:
Between 30 January and 3 March 2021 various persons made reports to police relating to vehicles, number plates and other property being stolen.
On 27 February 2021 a Toyota Landcruiser and Holden Club Sport Commodore were stolen from addresses in Maribyrnong. Between 26 February and 1 March, two sets of number plates were stolen from separate vehicles in Craigieburn and Trentham respectively. At 4.00pm on 1 March 2021, K was observed by police driving the stolen Landcruiser, which was bearing one of the sets of stolen number plates, in Oakleigh South. A person was observed in the front passenger seat, whom police believe was the applicant. At 5pm police observed the applicant and K exit the Landcruiser at an address in Mount Waverley and enter the stolen Club Sport Commodore, which was displaying the other set of stolen number plates. Police searched the Landcruiser, locating property which had been reported as stolen from various locations including a television, jewellery, keys, vehicle log books, sporting equipment, number plates, and a wallet containing assorted cards and other items. On 2 March 2021, a forensic examination was conducted on the Landcruiser and the applicant’s palm prints were located on the passenger side window.
On 1 March 2021 a VW Amarok Utility was stolen from a Camberwell address. At 4.00pm on 3 March 2021, police observed K driving the stolen vehicle with the applicant in the passenger seat. The vehicle was fitted with cloned number plates. At 8.00 pm police located the VW Amarok parked on a street in Coburg. Upon searching the vehicle, police located assorted identification, bank and other cards, a laptop, two sets of number plates, vehicle log books, keys, jewellery and other items and documents which had been reported as stolen.
At 10.00pm on 3 March 2021, police observed K driving a stolen Toyota RAV4 in Glenroy with the applicant in the front passenger seat. The vehicle was fitted with stolen number plates. Police arrested the applicant and K and located a number of items in the vehicle including Victorian number plates, bank and identification cards, passports, car keys and other documents which had been reported as stolen.
On 4 March 2021 a forensic examination of the VW Amarok Utility was conducted and the applicant’s palm and fingerprints were found on the cover of the stolen number plates fitted to the vehicle.
The applicant was arrested on 3 March 2021, and formally charged and remanded the following day.
Personal circumstances and criminal history
The applicant is 23 years old. He commenced an apprenticeship as a carpenter at the age of 14, completing the apprenticeship when still a teenager. He does not have much of an employment history, having last had a full time job for several months about two years ago. He has a history of poor mental health and problematic drug use, including the binge use of methylamphetamine, GHB and alcohol.
The applicant has a criminal history which commenced in 2017 when he was aged 19. Although filling 17 pages of a criminal record, the history of the applicant encompasses four court appearances over the three years from 16 April 2017 to 3 April 2020. The history mainly consists of dishonesty offences, including numerous charges of theft of a motor car. In addition, there are serious driving offences, property damage offences, some violent offences, and offences of failing to answer bail and contravening conduct conditions of bail. At his second appearance in April 2018 for a range of offending, the applicant received a short term of imprisonment to be followed by a community correction order (‘CCO’) which had a condition allowing for assessment and treatment for drug abuse or dependency. The applicant later breached this CCO, being dealt with for such on 15 November 2018. He was again placed on a CCO to commence after the service of another short period of imprisonment. He again breached the CCO, the breaching report showing his poor compliance with the order, and failure to comply with some aspects of the drug treatment offered to him. On 3 April 2020, the applicant was again before the Magistrates’ Court for numerous dishonesty, driving and bail offences. He received an aggregate term of 12 months’ imprisonment with a minimum of six months. The Court was informed that the applicant was not granted on parole and was released in mid-December 2020.
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.
As already indicated, the exceptional circumstances test applies in this case. The applicant bears the burden in respect of that test. In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[2] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent 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.
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.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J in DPP v Muhaidat[3] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[4]
[3][2004] VSC 17 (‘Muhaidat’).
[4]Ibid [13]; See also Re Sipser [2019] VSC 362 [43]; Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81 [39] (‘Re Reker’).
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[5]
[5]See, for example, Re Brown [2019] VSC 751 (Lasry J).
Evidence
Two witnesses gave sworn evidence before the Court during the application. The first of these was Steven Villani, the father of the applicant. He gave evidence that he and the applicant’s sister have had regular contact with the applicant since he has been in custody. Mr Villani spoke of the improved physical appearance of his son in custody and the improved attitude of his son towards his drug use and reoffending. He informed the Court of efforts made to arrange residential drug rehabilitation for him. Now is the first time there has been an offer of a place at Odyssey House (‘OH’). Mr Villani made mention of mental health issues experience by the applicant in the past. He indicated that in the event bail was granted and a period of residential drug treatment was completed, he could offer his home in Wallan as a stable address at which the applicant could live away from Melbourne. In cross-examination, Mr Villani indicated that the applicant had always had that address open to him, and had always had his support. He gave evidence that the applicant’s last full-time job was two to three years ago for a period of a few months.
The second witness called by the applicant was Monique Fletcher, a registered nurse and Alcohol and Other Drugs therapist at OH. She was called on the second day of the application at the suggestion of the Court, as it was apparent that insufficient information concerning OH and the proposed arrangements for the applicant was contained in the brief letter from Ms Fletcher originally placed before the Court. Ms Fletcher indicated that she was the person who had assessed the applicant as being suitable for admission into the OH program in Lower Plenty, and informed the Court what had been involved in the assessment. She outlined the various stages of the program, and the rules in place at OH. Entry into level 1 would follow a four week assessment phase. OH recommends at least a four month episode of care, which would include an intense eight week course to prepare the resident for further advancement in the program. After the four months, either the resident would be prepared for what Ms Fletcher called a safe exit, or alternatively, would remain in the program, which would go for 12 to 18 months, during which there would be progression through levels 2 and 3. Ms Fletcher was at pains to emphasise throughout her evidence the voluntary nature of involvement at OH. She did say, however, that in the event that the applicant was bailed to OH, the facility would be aware of the bail conditions, would notify breaches to the informant, would provide the results of random drug screenings to the informant, and would notify the informant should the applicant depart the program. She indicated that every two hours throughout the day and night, a ‘house run’ would be carried out, to ensure each resident was present. No resident would have any reason to leave the premises at any time other than in the company of a senior resident. Should a curfew be imposed by a condition of bail, it should be between the hours of 10.00pm and 5.00am, to enable the resident to take part in supervised early morning exercise activities away from the House. Ms Fletcher acknowledged the strict, and as she described it, ‘militant’[6] nature of the program, but noted that many individuals do successfully complete it and go on to live meaningful lives. In cross-examination, she would not be drawn on the likelihood of the applicant being able to comply with the strict rules and requirements, but conceded that it would be a hard adjustment.
[6]Transcript 52.
The applicant’s submissions
Ms Avis, for the applicant, relied on a combination of the following matters set out in a written outline and in her oral submissions in support of proof of exceptional circumstances:
a) The availability of residential accommodation at OH. This was advanced as the most important matter amongst those relied upon by Ms Avis. She emphasised the reputable standing of the facility. The applicant has a history of drug-related offending, into which category the current alleged offending could readily be seen to fit. The applicant has gone through a period of detoxification on remand, and has undergone a change in attitude, so that he is now at a point where he could benefit greatly from the period of residential rehabilitation which is now on offer to him for the first time. He is still a young man. Ms Avis relied on a number of authorities, including Robinson v The Queen[7] which emphasise the desirability, in an appropriate case, of an applicant for bail being given the opportunity to commence steps towards rehabilitation whilst on bail. Insofar as the applicant has had earlier opportunities to engage in drug treatment, which he has not taken advantage of, Ms Avis pointed out his young age at the time, and submitted that drug rehabilitation rarely follows a smooth course. The attitude of the subject of rehabilitation will be centrally important. In the applicant’s case, as a 23-year-old person, he has gone through a long period of custody in onerous conditions in light of the impacts of COVID-19. Ms Avis submitted that the availability of a placement in a residential rehabilitation facility at this juncture in the applicant’s life is a particularly forceful factor in establishing exceptional circumstances.
[7](2015) 47 VR 226 (‘Robinson’).
b) The availability of stable accommodation and family support upon exiting OH. Ms Avis did not submit that residential and other conditions should be set to come into effect upon the departure of the applicant from OH, but noted that he continues to have the support of a loving and stable family and has available to him stable accommodation with his father away from Melbourne.
c) The special vulnerability of the applicant in custody due to mental health issues. Whilst there was some material in the evidence of the father of the applicant and some references in the submissions of Ms Avis about previous mental health concerns with the applicant, no material was placed before the Court indicating what his current situation is in this regard.
d) The strength of the prosecution case. Ms Avis submitted that the prosecution case ‘is not overwhelming in regard to a number of the more serious charges’.[8] She submitted that there would be ‘triable issues’ concerning the knowledge or intent of the applicant in circumstances where he was a passenger in vehicles which were apparently stolen.
e) Delay and the effects of COVID-19. Ms Avis submitted that the applicant will have spent 251 days on remand by the time the contest mention proceeds on 9 November 2021. The contested hearing would not proceed until February 2022 at the earliest. This long delay, exacerbated by the effects of the COVID-19 pandemic, is significant and exceptional, submitted Ms Avis. She submitted that there is a real risk that the applicant would spend longer on remand than any sentence he would receive. Ms Avis referred to the decision of Priest JA in Re Elias,[9] submitting that the same principles apply in this case.
f) Ties to the jurisdiction. It was submitted that the applicant has strong family support in and connections to Victoria.
[8]Outline [20].
[9][2020] VSC 502.
In respect of the question of unacceptable risk, Ms Avis submitted that the respondent has failed to discharge the onus in this regard. She emphasised the drug connection of the current and previous offending, and noted that if granted bail, the applicant would be subject to the strict regimen of OH which would reduce the risk posed. In this regard, Ms Avis noted what was said in Robinson at [51]. Should he exit the program, it would be reported to police. She pointed also to the strong family support and stable accommodation available to the applicant. She accepted that bailing the applicant would not be without some risk, but submitted that any risk could be mitigated to an acceptable level by the imposition of strict conditions.
The respondent’s submissions
The position of the respondent in opposing bail was outlined in the affidavit in opposition, the exhibited report of the respondent, and the oral submissions of Mr Collins.
Mr Collins acknowledged the importance of the impacts of the COVID-19 pandemic, but submitted that this was not, of itself, an exceptional circumstance.
In respect of the likely delay, Mr Collins submitted that the period on remand would not be likely to exceed the sentence passed should the applicant be found guilty. He submitted that the matters of the availability of stable accommodation and strong family support should be viewed in light of the reality that these supports were always available to the applicant, and yet he offended in the past. In any event, the stable accommodation and family support are not so important because it is proposed that the applicant be bailed to OH.
Turning to the strength of the prosecution case, Mr Collins challenged the defence position. He submitted that it was not much to say that the case was not overwhelming. He submitted that the case is a strong one, and in respect of the apparent issue to be taken as to the applicant’s knowledge or intention at the time of being in the stolen vehicles, evidence would show that he knew that his co-accused were being investigated for car thefts.
In respect of the defence reliance on the special vulnerability of the applicant in custody, Mr Collins submitted limited weight should be given to that matter. There was no medical evidence before the Court explaining the applicant’s current condition. Indeed, the evidence of the applicant’s father indicated that the applicant is healthier and with a more positive attitude than in the past.
Mr Collins took no issue with the applicant’s reliance upon his ties to the jurisdiction.
Turning to the central issue, namely, the availability of residential rehabilitation, Mr Collins acknowledged this to be a significant matter, but submitted that it fell short of being an exceptional matter, alone or in combination. The applicant has had opportunities in the past to rehabilitate himself, and has failed to capitalise on these. It was his family and lawyers who pushed for him to be given the place at OH, not the applicant himself. He did not seek to go there in the past when he was not in custody, or seek any other form of treatment.
In terms of the seriousness of the offending, Mr Collins acknowledged that the offending is not alleged to be violent or to involve any person engaging in dangerous driving. Nor does the applicant have many prior convictions for violence. However, he submitted that notwithstanding the fact that the stolen vehicles and property were recovered, the property was of a high value, and the offending is serious, being of a persistent nature and involving a large number of victims.
Turning to unacceptable risk, Mr Collins noted that drug use appears to be at the heart of the applicant’s offending now and in the past. He referred to a report prepared on 17 December 2019 in respect of the applicant’s breach of a community correction order. That report had noted that the applicant posed a high risk of general re-offending as indicated by an assessment tool. As Mr Collins put it, that risk assessment ‘turned out to be quite astute and entirely accurate’.[10] He pointed out that the applicant was released in mid-December 2020 after serving 12 months in custody. Some of the first Salter offending occurred within 6 weeks or so of his release. The applicant having been bailed on 18 February 2021, the later Salter offences commenced on 1 March 2021. In light of that chronology and the criminal history of the applicant, his risk of reoffending ‘is palpable’,[11] it was submitted.
[10]Transcript 84.
[11]Ibid.
Mr Collins conceded that the risk of endangering the safety or welfare of any person in the usual sense may be moderated by the fact that the applicant’s past offending has generally not been violent. However, Mr Collins submitted that the psychological and financial welfare of the many victims of the applicant’s offending is also a legitimate consideration. In the period of three months after the release of the applicant in December 2020, he allegedly offended against no fewer than 32 victims, whose rights and welfare were adversely affected. Mr Collins invited me to contemplate the inconvenience suffered by each victim. Although not the victims of violence, they would still come within the terms of one of the guiding principles of the Act set out in s 1B.
Analysis
Whilst noting that of course, it is the combination of factors advanced upon which the applicant relies, it might be observed that some of these are not particularly weighty. The availability of stable accommodation upon the applicant’s departure from residential rehabilitation is not very significant, because what is proposed on behalf of the applicant is that he be bailed to reside at OH, with no prospect of living elsewhere unless and until an application for variation of bail is brought. Looking at the situation as it appears now, the availability of stable accommodation at some indeterminate time in the future is not a powerful consideration.
As for the availability of family support, whilst this is a fortunate feature of the applicant’s position, the support on offer now is no different from that to which he had access in the past. It was seemingly not such as to be able to prevent him from persistently reoffending.
The special vulnerability of the applicant in custody is not a matter which was supported by evidence. Fortunately, there is nothing to indicate he suffers from any current mental health concerns. This is not to downplay the significance of the onerous conditions in which he has been held on remand to date in light of the restrictions brought about in custodial settings due to the COVID-19 pandemic, and the fact that any time being spent in custody by a 23-year-old person is an important matter.
As for the likely delay before the resolution of the charges, whilst the period is a significant one, I do not accept that the delay would be exceptional of itself in the circumstances. An important consideration in the application is the question of the relativity between the likely delay and the likely sentence should the applicant be found guilty. I do not consider that the period on remand would be likely to exceed any sentence the applicant would receive if found guilty, in view of the seriousness of the offending and the significance of his criminal history.
Turning to the strength of the prosecution case, it may not be overwhelming, but it is difficult at this stage to view the case as being less than reasonably strong.
As for the ties of the applicant to the jurisdiction, the respondent did not challenge that contention by the applicant, but the reality is that the risk posed by the applicant is much more that he would reoffend and thereby endanger the safety and welfare of the community than that he would fail to appear in answer to bail.
I turn now to what was by far the most weighty of the matters relied upon by Ms Avis, and the matter on which this application turns, namely, the availability of residential rehabilitation in OH to the applicant.
In Robinson, Maxwell P and Redlich JA stated:
The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person’s freedom of movement and association but — on the positive side — it means that the pre-trial period can be used constructively to tackle the person’s drug addiction. In this case, as in so many others like it, R’s drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to R if he remained in custody.[12]
[12]Robinson [50].
The conditions proposed in the case before me are more stringent than those which were considered by the Court of Appeal in Robinson. Furthermore, for what it is worth, the offending alleged in that case was far more serious than that alleged against the applicant, although the prospective delay in Robinson was longer.
Ms Avis contended, and it was not challenged by the respondent, that the current offending alleged against the applicant, as with the bulk of his prior offending, is strongly connected with his ongoing drug problem. Not all that much information was placed before the Court as to the details of the applicant’s drug use over the years and its interplay with his criminal history, but it is interesting to note that his involvement in the criminal justice system, at least insofar as is indicated by his criminal record, commenced seemingly out of the blue when he was 19. In the years since then, he has engaged in persistent and serious offending, principally involving offences of dishonesty. The applicant has unfortunately spurned the opportunities offered to him to rehabilitate himself generally and, more specifically, as regards his drug problem. He has seemingly not been sufficiently deterred by the periods of imprisonment he has been ordered to serve from further offending. He has thus far shown an apparent lack of respect for court orders and for the strictures of bail. It may be that all of this can most sensibly be viewed through the prism of his ongoing use of illicit drugs, and the unfortunate world to which that has exposed him continuously.
Mr Collins correctly emphasised that the applicant has not taken advantage of drug treatment opportunities presented to him, and that during his years of drug abuse, has not sought admission into OH or any other residential treatment service. He submitted that the opportunity now before the applicant to go to OH has been the result of the efforts of the applicant’s family and lawyers rather than his own endeavours. In respect of that last point, I note what was said by Maxwell P and Redlich JA in Robinson, to the effect that it will be commonplace for it to be an applicant’s legal advisers rather than the applicant himself to have arranged residential treatment, as they will be better place to identify a suitable treatment provider and negotiate appropriate arrangements.[13]
[13]Robinson [54].
I consider there is some force in the submissions of Ms Avis that the course of drug rehabilitation is often not a smooth one and that what the applicant has gone through in this most recent period of incarceration, occurring as it has in the age of COVID-19 and the onerous custodial conditions brought about by the pandemic, may well have served to bring about an improvement in the attitude of the applicant such that there will be a greater prospect that he will properly embrace the opportunity for drug rehabilitation now offered to him.
I also accept the submission of Ms Avis that the availability of a placement in OH at this juncture in his life is a particularly forceful factor in establishing exceptional circumstances.
In Robinson, Maxwell P and Redlich JA observed:
Having indicated that he would consent to these conditions, R had demonstrated in two different — but related — ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.[14]
[14]Ibid [51].
In my view, Mr Collins was right to question the value of the availability of residential treatment in this case in light of the concerning recent history of the applicant and his failure to capitalise on the opportunities he has been given for drug rehabilitation in the past. Having said that, it is obvious that the applicant is not beyond redemption by any means. He hopefully has within himself the ability to turn his life around given the appropriate guidance and assistance. There is no question that the community would be best served by continuing to foster his rehabilitation if that is possible. As acknowledged by the Court in Robinson,[15] the threat of imprisonment should the applicant breach any of the conditions of bail would provide a powerful incentive for him to comply.
[15]Ibid [53].
The availability of a residential drug treatment option will not always have the force which it commands in this case. In some cases, for example, the alleged offending may be of such a nature that the risk to the physical safety of the community inherent in the release of an applicant into a non-secure residential treatment facility may not be justified. In other cases, there may be less material which would warrant even cautious optimism that the applicant may be able to abide by the strict requirements of residential treatment.
I also note the observations of Lasry J in Re Bailey[16] about the need for proper evidence in cases such as the present:
In such applications where issues of alcohol and substance abuse arise, the availability of residential treatment is a valuable tool for dealing with people like the applicant. However, those facilities are not custodial and depend on the commitment of an accused person to the treatment and assistance they offer. In order for courts to be able to rely on such well-meaning organisations and have confidence in them, it is necessary that the evidence on an application like this reveal reliable, detailed and genuinely expert assessments of an applicant, their circumstances and the detail of their proposed involvement in residential treatment.[17]
[16][2021] VSC 299.
[17]Ibid [62].
For what it is worth, I consider that at a minimum, sworn evidence from a person with detailed knowledge of the positive assessment made as to the suitability of the applicant for treatment and the details of the treatment itself would usually be of assistance to a Court considering the release of an applicant on bail with a residential treatment condition. As indicated already, at the commencement of the application before me – and no doubt this was also the case in the last application in the Magistrates’ Court – all that was provided was a brief letter from OH. I do not consider that this was sufficient.
I have not specifically mentioned all of the matters contained within s 3AAA(1) of the Act. Two others worthy of mention now are those set out in s 3AAA(1)(d) and (e). The applicant has a number of convictions for contravening conduct conditions of bail and failing to appear. Furthermore, the second Salter matter occurred when he was already on bail for the earlier charges, and the offending allegedly occurred in breach of the curfew which applied to that grant of bail. There is clear reason to be concerned about the applicant’s willingness to abide by the requirements of bail.
Notwithstanding those matters, having considered all of the surrounding circumstances of this case, I am satisfied that the applicant has discharged the burden resting on him of showing that exceptional circumstances exist that justify the grant of bail.
That then takes me to the second step of the two-step bail process. On that score, there is considerable force in the submissions of Mr Collins about the risk posed by the applicant. It is perfectly plain that the applicant, if released on bail, would pose a significant risk of reoffending, as he has seemingly done when on bail in the past. He has repeatedly failed to answer bail in the past, and breached conditions of bail. These are matters of real concern, such that the Court could hardly have unqualified confidence that he would comply in future, and refrain from reoffending.
Having considered the submissions on both sides, and all of the surrounding circumstances, however, I have concluded, with some hesitation, that the risk clearly posed by the applicant as asserted by the respondent can be sufficiently mitigated by the imposition of strict conditions so as not to be unacceptable.
I make the observation in the circumstances that both the position of the respondent in continuing to oppose bail and the decision of the learned magistrate in twice refusing bail are entirely understandable.
Conclusion
For the reasons I have stated, I am prepared to grant bail to the applicant on the strict conditions I will shortly announce.
The applicant should be under no illusions. The matter of bail in his case was a very close-run thing. The grant of bail I have made represents an opportunity to the applicant to turn his life around, which would be not only in his interests but those of the wider community. Every condition of this grant of bail is important and must be followed to the letter. It is a central requirement of his bail that the applicant remain at Odyssey House and comply with the lawful directions of staff there. It is also centrally important that the applicant abstain from the use of illicit drugs. If the applicant breaches any of the conditions of bail, it is inevitable that an application would be brought for the revocation of bail, and highly likely that such application would be successful and the applicant remanded in custody until the resolution of the charges he faces. Were that to happen, the opportunity which is currently available to him would be lost.