Re VR
[2021] VSC 873
•7 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0318
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by VR |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 and 7 December 2021 |
DATE OF JUDGMENT: | 7 December 2021 |
DATE OF REVISED REASONS: | 6 January 2022 |
CASE MAY BE CITED AS: | Re VR |
MEDIUM NEUTRAL CITATION: | [2021] VSC 873 |
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CRIMINAL LAW — Bail — Application for bail — Charges of reckless conduct endangering life and serious injury, false imprisonment, threat to kill and inflict serious injury, assault and contravening a family violence intervention order — ‘Compelling reason’ test — Serious allegations — Strength of the prosecution case — No statement of complainant in brief of evidence — Availability of CISP support — Onerous custodial conductions due to COVID-19 pandemic — Significant prior criminal history — No fixed bail address available — Compelling reasons established — Unacceptable risk demonstrated — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Julian Lowy | Michael J. Gleeson & Associates |
| For the Respondent | Mr Grant Carr | Victoria Police |
HIS HONOUR:
Introduction
By application filed 12 November 2021, VR (‘the applicant’) seeks bail in this Court in relation to a matter where the informant is Detective Senior Constable Diane Jeffries. He has been remanded in custody since 17 October 2021 when he was arrested and charged with the 10 charges related to alleged offending on 16 and 17 October 2021. Those charges are:
(a) reckless conduct endangering serious injury;[1]
[1]Contrary to s 23 of the Crimes Act 1958 (Vic).
(b) common law assault;[2]
[2]Contrary to common law.
(c) unlawful assault;[3]
[3]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
(d) contravene final family violence intervention order (‘FVIO’) (four counts);[4]
(e) contravene FVIO intending to cause harm or fear for safety (two counts);[5] and
(f) persistent contravention of FVIO.[6]
[4]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
[5]Ibid.
[6]Contrary to s 125A(1) of the Family Violence Protection Act 2008 (Vic).
On 29 November 2021 the applicant was charged with the following additional seven charges arising out of the same incident:
(a) reckless conduct endangering life;[7]
[7]Contrary to s 22 of the Crimes Act 1958 (Vic).
(b) common law false imprisonment;[8]
[8]Contrary to common law.
(c) threat to kill;[9]
[9]Contrary to s 20 of the Crimes Act 1958 (Vic).
(d) threat to inflict serious injury;[10]
(e) unlawful assault (2 counts);[11] and
(f) contravening a FVIO intending to cause harm or fear for safety.[12]
[10]Contrary to s 21 of the Crimes Act 1958 (Vic).
[11]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
[12]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
The applicant was refused bail in the Broadmeadows Magistrates’ Court on 3 November 2021 on the basis that he had failed to show a compelling reason justifying the grant of bail and was otherwise considered an unacceptable risk of committing a further offence whilst on bail and endangering the safety or welfare of another person. In circumstances where the presiding Magistrate held that the applicant had not established a compelling reason, they did not need to consider the issue of risk.
The matter is next listed in the Broadmeadows Magistrates’ Court on 7 December 2021 for mention. As I understand it this matter will proceed as a summary contest sometime later. It is anticipated that the contest will occur in the first quarter of 2022.
The alleged offending
The applicant and the complainant have been in an on-off relationship characterised by family violence for three years. Reciprocal full non-contact FVIOs were in place at the time of the alleged offending. This is clearly a toxic relationship, which in her evidence the informant described as ‘a homicide waiting to happen’. That is a very concerning opinion from an experienced police officer.
It is alleged that at approximately 12:00pm on 16 October 2021 the applicant and the complainant met and travelled to Brunswick by tram to purchase drugs before returning to an Essendon motel room at approximately 4:00pm. The complainant met with the applicant willingly but told him she did not want to have sex.
Throughout the evening, the prosecution allege that the applicant verbally and physically abused the complainant, made accusations of infidelity and derogatory comments, searched her phone, hit her multiple times to the upper body, pinned her to the floor and choked her. Eventually the applicant fell asleep with his hand on the complainant’s neck, however the complainant accidentally woke him by stirring in her sleep and he choked her again.
It is alleged that in the early hours of 17 October 2021, the complainant woke after the applicant allegedly struck her ribs. The applicant followed her to the bathroom and stood behind her at the basin demanding sex. When the complainant refused, the applicant responded ‘bad luck’ and proceeded to penetrate and ejaculate in her vagina before returning to bed.
A short time later the applicant hit and choked the complainant again, before she fled the room at 4:30am without her phone, bag or shoes. She hid by a gas meter at the front of the motel and saw the applicant exit the room and drop some of her belongings onto the road. As she went to retrieve these he saw her and threatened to rape and assault her again.
At 5:07am a passing motorist called police after finding the complainant in the middle of the road claiming to have been raped and strangled by the applicant. Police attended and the complainant gave an account of the incident which was captured on Body Worn Camera. She was conveyed to hospital and later tested positive to COVID-19.
The Body Worn Camera footage has been supplied to the Court, as has a transcript of the footage. Beyond that however, there is no sworn statement of the complainant in the brief of evidence, a matter to which I will return later in these reasons.
Arrest
The applicant was arrested at the hotel room at 2:30pm on 17 October 2021. He was not interviewed at that time as he was considered a COVID-19 risk.
Investigation and evidence
Photographs taken of the complainant and at the scene show a tear to her shirt, red marks on her collar bone and neck and her socks on the ground near a gas meter.
Forensic analysis of the complainant’s phone found inside the motel room, swabs taken from the complainant and the applicant’s genital areas, samples and exhibits taken from the room are pending, however initial tests indicated the presence of semen in the complainant’s vagina. This is relevant primarily to an allegation of rape which is not yet the subject of any charge and, as I indicated in the course of discussion with parties, would seem to me to face significant difficulties given the complainant’s account of the incident in the Body Worn Camera footage.
Outstanding matters
At the time of the offending the applicant was on summons in two other matters.
Huiswaard matter
On 25 November 2019 an interim no contact family violence intervention order protecting the complainant was made at Heidelberg Magistrates’ Court. This order was served on the applicant on 4 December 2019.
On 3 January 2020 the applicant sent the complainant’s 13 year old son a message asking him to get the complainant to contact him and asking him to ‘be discreet’. The complainant’s son told his father and they attended the Mernda Police Station to report this on 6 January 2020. On 23 January 2020 the applicant was interviewed and on 3 March 2020 he was charged on summons with contravening a final family violence intervention order.
The applicant failed to appear in this matter in Heidelberg Magistrates’ Court on 7 October 2021 and a warrant for his arrest was issued. This warrant was executed on 17 October 2021.
This matter is next listed for mention with the Jeffries matter in the Broadmeadows Magistrates’ Court on 7 December 2021.
Breach of Community Corrections Order
On 25 June 2019 the applicant was convicted of using a carriage service to harass, three counts of contravening a family violence intervention order and persistent contravention of a family violence intervention order for offending involving a former partner. He was sentenced to a 24 month Community Corrections Order (‘CCO’) commencing the same date.
A report provided by the Department of Justice and Community Safety alleges the applicant has breached this CCO by reoffending twice, first by offending for which he was convicted on 10 June 2021 and secondly in the Huiswaard matter, as well as by contravening conditions.
The applicant is on summons for this matter which is next listed for mention in the Dandenong Magistrates’ Court on 26 April 2022.
The applicable legislation
The parties both submit that the applicant must establish a compelling reason justifying the grant of bail, having been charged with a schedule 2 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’), namely, persistent contravention of a FVIO.[13] In determining whether a compelling reason exists the Court must take into account the relevant ‘surrounding circumstances’, including those in s 3AAA(1) of the Act.[14]
[13]Bail Act 1977 (Vic) (‘the Act’) sch 2 item 19; s 4AA(3).
[14]Ibid s 4C(3).
If satisfied that a compelling reason exists, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[15] In considering this, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[16]
[15]Ibid ss 4D(1)(a) and 4E.
[16]Above n 13, s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[17]
[17]Ibid s 1B(2).
Intervention orders and family violence risk
Section 5AAAA(1) of the Act requires the Court to make certain inquiries of the prosecutor including whether there is a family violence intervention order in force against the applicant.
Section 5AAAA(2) of the Act requires the Court considering the release of a person charged with a family violence offence to consider whether, if the accused were released on bail, there would be a risk that they would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a family violence intervention order.
The applicant is listed as the respondent in two current family violence intervention orders. Their details are as follows:
(a) a full non-contact family violence intervention order listing the complainant as the protected person, which was made in Dandenong Magistrates’ Court on 31 March 2021 and expires on 30 March 2022; and
(b) a final full non-contact family violence intervention order with exemptions pertaining to Family Law Act orders, child protection orders and communication through a lawyer, listing a former partner of the applicant and their two children as protected persons, which was made in Dandenong Magistrates’ Court on 28 November 2016 and expires on 31 December 2060.
Informant Jeffries argues that the applicant has a history of frequently contravening family violence intervention orders, detailing nine incidents requiring police attendance recorded on the Law Enforcement Assistance Program where the applicant has allegedly physically or verbally abused the complainant between 23 November 2019 and 17 October 2021. It was argued that it is likely there have been additional unreported incidents.
The applicant’s personal circumstances
The applicant is 46 years old with no fixed address. He has experienced housing instability since early 2021 and at the time of the offending was residing in crisis accommodation arranged through VincentCare Northern Community Hub (‘VincentCare’), being the motel in Essendon.
The applicant has had issues with substance abuse for 32 years, using methylamphetamine, amphetamines, cocaine, heroin and cannabis, and has reportedly been diagnosed with depression and anxiety.
Criminal history
The applicant has a criminal history dating back to 2011. His relevant convictions are summarised as follows.
30 March 2011
The applicant physically and verbally assaulted a former partner after accusing her of seeing other men. He was convicted of recklessly causing injury, theft and indecent or obscene writing in a public place.
9 June 2016
The applicant was convicted of contravening a final family violence intervention order, persistent contravention of an family violence intervention order and criminal damage relating to three separate incidents involving two former partners. He was sentenced to a 12 month CCO (‘the first CCO’) with 100 hours of community work.
29 November 2016
The applicant attended the address of a former partner to see his two children where he verbally abused her and damaged her new car. He was convicted of contravening a final family violence intervention order and persistent contravention of a family violence intervention order and sentenced to a 12 month CCO (‘the second CCO’) with 60 hours of community work and conditions to engage with alcohol and drug, mental health and behavioural change services. He was also convicted of breaching the first CCO which was extended and varied to 75 hours of community work on identical conditions to the second CCO.
25 June 2019
Between 25 August and 29 December 2018 the applicant contacted a former partner numerous times using various messaging platforms in contravention of a full non-contact FVIO. The applicant was sentenced to a third CCO, this being the order for which the applicant is currently subject to breach proceedings as earlier detailed.
10 June 2021
The complainant and the applicant were staying together at a motel in contravention of their reciprocal family violence intervention orders. Police were called following an argument and escorted the applicant from the premises. They were called back ten minutes later and saw the applicant banging on the door to the motel room threatening to kill the complainant. He was convicted of two counts of contravening a family violence intervention order and two counts of contravening a condition of bail and fined.
The applicant’s submissions
Mr Lowy of counsel on behalf of the applicant relied on the following matters, in combination, to establish a compelling reason justifying the grant of bail. It was further submitted by Mr Lowy that the respondent had not established that the applicant posed an unacceptable risk within the meaning of the Act.
Strength of the prosecution case
The applicant is contesting the charges, relying upon the unsigned complaint statement, submitting that it does not detail the allegations. Further, the prosecution have not disclosed the 000 call or any further evidence that they rely upon in addition to the preliminary brief. During the hearing of this application, it became apparent that despite the lack of a signed statement from the complainant, there is a conversation between her and members of Victoria Police in which she gives a contemporaneous account of the alleged offending. This conversation is depicted in the Body Worn Camera footage of First Constable Nicola.
Availability of support services through CISP and VincentCare
It was put on the applicant’s behalf that he proposes to receive support in the community through the Court Integrated Services Program (‘CISP’). The applicant was assessed in custody on 26 October 2021 and found suitable for case management to address substance use, mental health concerns and family violence behaviour and receive assistance to secure accommodation and other necessities. During this assessment the applicant reported:
(a) he is currently prescribed an antidepressant however his mental health is stable and not of concern to him;
(b) he had not been abusing substances in the nine months preceding the offending, with the exception of occasional cannabis use to calm anxiety when exercise did not assist;
(c) he had engaged in drug and alcohol counselling in 2019 whilst subject to a CCO and is motivated to seek assistance with relapse prevention; and
(d) he has no intention of continuing the relationship with the complainant and was open to a behavioural change program.
The applicant was reassessed and again recommended for case management on 22 November 2021. His first appointment was scheduled for 2 December 2021, a date which has now passed after the hearing of this application was adjourned so that the respondent could file the Body Worn Camera footage with the Court. In addition to the required supports identified in the previous report, his assessor noted that the applicant expressed motivation to engage in an anger management program to manage his ‘frustration’. It is said the applicant’s case manager will assisting him with accessing relevant courses and counselling. A further CISP report has been filed since this matter was adjourned, to which I will refer in more detail later in these reasons.
Accommodation support
The CISP Remand Outreach Program (‘CROP’) have agreed to pay for two nights of accommodation at [redacted] upon the applicant’s release and CISP will assist him in contacting VincentCare to discuss options and secure future accommodation.
COVID-19 and onerous conditions in custody
It was submitted on the applicant’s behalf that the current conditions in custody are more onerous than usual. He, like all other people in custody throughout the pandemic, has been subject to extensive restrictions and is unable to undertake programs and treatment.
Delay
It was submitted that the applicant will face significant delay in his matter being finalised as a contest mention would likely not proceed until at least February 2022. In these circumstances, it was put that if bail is refused the time the applicant will spend on remand will likely exceed any custodial sentence imposed.
Unacceptable risk
It was submitted that that the risk of the applicant interfering with the complainant is reduced by the proposed support from CISP and that his time on remand has had a deterrent effect on future offending as it is his first time in custody. It was further submitted in the written material filed with the Court that continued remand could potentially exacerbate the applicant’s risk of reoffending. The evidentiary basis for this assertion is not absolutely clear to me.
The applicant contends that these factors in combination with appropriate conditions of bail would mitigate any risk to an acceptable level. Proposed conditions include to reside at an address proposed by VincentCare or his CISP case worker and advise of changes in accommodation, not to contact witnesses, to comply with CISP directions and the family violence intervention order, and to provide details of his mobile phone to the police.
The respondent’s submissions
Mr Carr on behalf of the respondent opposed the application on the basis that the applicant had not shown a compelling reason justifying the grant of bail. Further, it was submitted that, if granted bail, the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing a further offence and interfering with a witness or otherwise obstructing the course of justice.
The respondent relied upon the report of informant Jeffries prepared for the purpose this application, in which she sets out in detail the reasons for opposition to the grant of bail.
Nature and seriousness of offending
It was submitted that the allegations are ‘very serious’.
Strength of the prosecution case
The respondent submitted that the prosecution case is strong, despite being in the preliminary stages, relying on first-hand, contemporaneous evidence of the complainant whose account, demeanour and observable injuries are consistent with independent witness evidence, her socks being located in her hiding spot, and photographs taken shortly after the alleged incident occurred.
The respondent addressed the applicant’s submissions as to the strength of the prosecution case as follows:
(a) the complainant gave a Video Audio Recorded Evidence (‘VARE’) statement on 12 November 2021. I note that I have not seen this VARE statement, nor has it been served on the applicant;
(b) the 000 call has been obtained and, although the prosecution do not rely solely on this evidence, the complainant can be heard giving a verbal account of the incident shortly after it is alleged to have occurred. Likewise, the 000 call has neither been provided to the Court nor served on the applicant;
(c) the Body Worn Camera footage of the police interaction with the complainant shortly after the incident has been provided; and
(d) a thorough remand brief was provided upon the applicant’s remand, no full brief has been requested to date and a full investigation is still being undertaken.
In addition to the above, the respondent relies upon statements of an independent witness and attending police members, forensic evidence, CCTV, medical records, the property of the complainant retrieved from the scene, mobile phone records and the applicant’s record of interview.
Criminal history
The respondent submitted that the applicant’s criminal history is ‘highly relevant and concerning’ and suggestive of behaviour toward future partners, noting his priors for contravening family violence intervention orders by harassing, assaulting and threatening former partners and damaging their property.
It was conceded that the applicant does not have prior convictions for contravening bail conditions.
Availability of support services through CISP and VincentCare
The respondent submitted in the written material filed with the Court that there is a prospect that the applicant will be without accommodation soon after release given the temporary nature of the short-term accommodation arrangements made and he will need to seek further support to secure more permanent housing.
In the respondent’s submission, the applicant has previously been given the opportunity to address his offending behaviour and substance use whilst subject to multiple community corrections orders. He has previously participated in two Men’s Behavioural Change Programs, however completed only one of those, suggesting he would be unlikely to engage if afforded a third opportunity to attend such a program.
It was further submitted that the applicant’s history of transiency will make it difficult to monitor him on bail and that the proposed arrangements for him to reside in temporary accommodation are inadequate to mitigate risk, particularly as he has a history of offending in emergency accommodation.
Family violence risks
The respondent submitted that the applicant’s history of family violence offending involving the complainant and numerous former partners indicates a pattern of inflicting violence against women and the family violence intervention order would not ‘in any way’ reduce the risk he poses.
Views of the victim
The complainant has told police that she fears for her safety and life if the applicant is released, particularly as she has cooperated with police. The informant Jeffries has also expressed concern for the complainant’s welfare.
Time on remand and likely sentence
The respondent submitted that the matter may proceed to a contested hearing between March and May 2022. In Mr Carr’s submission, if the applicant is found guilty of these matters, he is likely to be sentenced to a term of imprisonment equal to or exceeding the time he will spend on remand.
Unacceptable risk
Endangering the safety or welfare of any person
The respondent submitted that the applicant has continuously exposed the complainant to verbal and physical abuse and threats throughout their relationship. The applicant has also allegedly engaged in ‘high risk behaviours to the extreme end’, for example strangulation, demonstrating risk to the complainant’s safety and welfare.
Committing a further offence
The respondent submitted that the applicant is likely to continue to offend if granted bail based on his history of contravening court orders.
The respondent submitted that the existence of family violence intervention orders, community corrections orders and bail undertakings have failed to deter the applicant from further offending in the past and it is therefore unlikely that the proposed conditions of bail would mitigate any risk of further offending against the complainant to an acceptable level.
Interfering with a witness or obstructing the course of justice
The respondent submitted that the applicant has repeatedly breached the family violence intervention order by contacting the victim and there is a real risk of him continuing to do so. The respondent disagrees that bail and other external supports would sufficiently mitigate this risk and the applicant’s history of breaching court orders and engaging in family violence offending, particularly by using carriage services to contact former partners, demonstrates a disregard for court orders and legitimises the complainant’s the fear. Further, informant Jeffries is concerned that the applicant will interfere with the ongoing investigations in relation to the allegations of sexual assault.
Analysis and conclusion
The relationship between the applicant and complainant is a violent and corrosive one and clearly it should end. It was submitted on behalf of the applicant that he wishes for it to end. It has been characterised by abuse and anger. Whilst I do not conclude that the applicant is solely responsible for the animosity in his relationship with the complainant, there is a passage in the most recently filed CISP report which I do find concerning:
The writer would like to note that whilst [the applicant] expressed a willingness to explore and address his behaviour, he did appear to frequently minimise his behaviour and displace blame for the reasons for his remanding. He engaged in externalising blame towards [the complainant], stating that the [complainant] made false accusations in the past, cited the complainant’s mental health issues, along with claims of her substance use. He may benefit from education and support around behaviour that constitutes family violence. [The applicant] and his CISP Case Manager will explore suitable services/programs in relation to family violence issues.
The writer would like to highlight there has been an increase in Family Violence referrals within the community, which may impact/limit [the applicant’s] ability to engage in these services during a standard episode of the CISP.
The allegations against the applicant involve controlling and violent behaviours. The applicant’s apparent lack of insight into this as reflected in the above quoted passage of the CISP report is of concern, as is the foreshadowed paucity of services available through an episode of the CISP. The Courts and the community no longer minimise the effect of family violence. The offending is clearly serious.
As to the strength of the prosecution case, the complainant gives a contemporary account of the incident which has been recorded on First Constable Nicola’s Body Worn Camera. I assume that the complainant will give evidence at the hearing of the contest. I find it difficult to assess how strong her evidence will be. Mr Lowy on behalf of the applicant makes the point that, at this time, the complainant has made no commitment to give evidence and has not made any sworn statement. His submission is that the complainant’s account remains amenable to change and she has not yet committed to a version of events. I think this is a difficulty with the strength of the prosecution case of some consequence. In my view the state of the prosecution case is most unsatisfactory as it is on the evidence before me. There is some evidence as to what occurred and the complainant has detailed a version of events to members of the police force. However, the complainant is clearly not committed to what she has told the police as depicted in the Body Worn Camera footage. There is no ability to compel the complainant to give evidence in accordance with what she said in that footage. On the basis of the significant problems with the prosecution case, I do consider that the applicant has established a compelling reason justifying the grant of bail.
Turning next to the question of unacceptable risk. The applicant has a relevant criminal history dating back to 2011. His convictions involve violence towards women in 2011 and breaching a final family violence intervention order and criminal damage in 2016. It also involves the offences to which I have already referred in 2018 and 2019 and of course the most recent criminal prior on 10 June 2021. The applicant’s criminal history is clearly relevant to an assessment of risk.
The history and circumstances of this case also indicate that there is a very high risk that further offences and further family violence could be committed either against the complainant in this case or potentially other people. Family violence intervention orders have failed to deter the applicant from family violence offending in the past.
So far as delay is concerned, there is a prospect of some delay but in my view it is not by any means certain that the sentence which might be imposed on the applicant should he be found guilty would be less than the period of delay.
I agree with the respondent’s submission that the applicant’s history of transiency will make it difficult to monitor him should he be released on bail and the applicant’s proposed accommodation arrangements would be extremely difficult to enforce no matter how stringent any residential bail condition is.
The applicant poses a significant risk of endangering the complainant’s welfare and committing an offence while on bail. I am of the view that the respondent has satisfied the Court that this risk cannot be reduced to an acceptable level with the imposition of conditions of bail, notwithstanding the matters put on behalf of the applicant. In those circumstances, the application for bail is refused.
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