Re Wells

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2025 0189

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by CHRISTOPHER WELLS

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JUDGE:	Kaye JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2025
DATE OF JUDGMENT:	28 August 2025
CASE MAY BE CITED AS:	Re Wells
MEDIUM NEUTRAL CITATION:	[2025] VSC 526

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CRIMINAL LAW — Bail application — Applicant charged with two charges of intentionally damaging property by fire — Applicant prima facie entitled to bail — Whether unacceptable risk of endangering the safety and welfare of others if granted bail — Whether unacceptable risk applicant will fail to answer bail — Applicant Aboriginal person — Intellectual disability — Significant mental health issues — Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, and 4E, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Malik	James Dowsley & Associates
For the Respondent	Mr A Singh	Victoria Police

HIS HONOUR:

The applicant is subject to two charges of intentionally damaging property by fire contrary to s 197 (1) of the Crimes Act 1958. The offences are alleged to have been committed on 23 January 2025 and 29 April 2025 respectively.
The applicant was arrested on 13 May 2025 and remanded into custody. On 6 August 2025, he made an unsuccessful application for bail in the Heidelberg Magistrates’ Court. The application was refused on the ground that there was an unacceptable risk that he would endanger the safety or welfare of other persons and that he would fail to surrender into custody in accordance with the conditions of his bail. He now applies to this Court for bail.

Background to offending

The applicant is 37 years of age, having been born in Hobart on 27 October 1987. He is an Aboriginal man of the Palawa people. At the age of seven years, he was taken into care. During his childhood, he experienced multiple foster placements across north and northwest Tasmania. Throughout his life he has experienced significant trauma and instability.
The applicant has been and is engaged with the National Disability Insurance Scheme (‘NDIS’) with a significant number of impairments which have been diagnosed to include: an intellectual disability; an acquired brain injury; a Schizoaffective Disorder; an Antisocial Personality Disorder; and a Substance Abuse Disorder.
The alleged offending
At the time of the alleged offending, the applicant was residing in his NDIS-funded residential facility at 4 Wallaroo Way, Doreen (‘the premises’).
At the time of the first offence, on 23 January 2025, he was living at the premises with his carer, Komalprett Kaur (‘K Kaur’). On that day, the applicant attended the local shops and attempted to withdraw money using his bankcard in order to purchase methylamphetamine. The transaction was declined. As a result, the applicant returned to the premises in an angry mood. He asked to use K Kaur’s telephone. When K Kaur refused, he became more angry.
At approximately 12:40pm, the applicant managed to get K Kaur out of the house, and he locked her in the backyard. He then used a cigarette lighter to start a fire on the couch that was located in the loungeroom. The couch immediately became engulfed in flames and posed a significant risk to the house. When the applicant realised how substantial the fire was becoming, he allowed K Kaur to return to the house. K Kaur attempted to put out the fire with water but did not succeed. She then dragged the couch to the outdoor veranda area, which resulted in the veranda also catching on fire.
While K Kaur was attempting to extinguish the fire, the applicant entered his bedroom, that was located at the rear of the house, and set fire to his bed. The house became engulfed in thick black smoke. K Kaur convinced the applicant to leave the house for their own safety. Ambulance Victoria attended the scene and assessed K Kaur and the applicant for smoke inhalation. K Kaur was transported to hospital with smoke inhalation and anxiety. The applicant was detained by police and transported to the Northern Hospital pursuant to s 232 of the Mental Health Act. He remained in the mental health facility for a period of time, before he was released back to the same NDIS facility.
The owner of the NDIS facility, Sandeep Uppal, has advised police that the repair costs to the premises were in excess of $20,000. After the incident, K Kaur resigned from her job and she has never returned to the Doreen facility. She has refused to engage with police concerning the fire as a result of her fear of the applicant.
The second charge of arson concerns a fire that occurred at the same premises on 29 April 2025. On that date, the applicant was again at the premises with his new carer, Harpreet Kaur (‘H Kaur’). The house had been repaired after the previous fire and the applicant was again residing in his bedroom at the rear of the house.
At approximately 9:00am, the applicant awoke, had breakfast, and then went back to sleep until lunchtime. At that time, he walked out of his bedroom towards H Kaur while flicking a cigarette lighter. After the previous incident, the applicant had not been permitted to have cigarette lighters in his possession and he was required to request them from his carers. H Kaur asked the applicant where he had got the lighter from, and the applicant responded that he had ‘a stash of them’, and that ‘it was none of [her] business’. H Kaur requested that the applicant give her the lighter, but the applicant refused to do so. He returned to his bedroom, and piled his doona and bedsheet on top of the bed before setting them on fire using the lighter. When H Kaur realised what had happened, she attended the bedroom, but the applicant obstructed her from entering it. Finally, he allowed her to enter the room. While H Kaur was attempting to extinguish the fire, the applicant went into the loungeroom and set fire to a clothes-horse which had his clothes drying on it.
When H Kaur returned to the kitchen area to obtain water, she observed the clothes‑horse was alight and she dragged it outside to the back veranda. When she re‑entered the house, the applicant exited the front door, and locked the security door behind him, effectively caging H Kaur inside the burning property. H Kaur telephoned the emergency number 000 and requested Fire Rescue Victoria’s attendance. She then contacted the property owner, Mr Uppal, who resided a short distance away. He attended the house within minutes. At that point, H Kaur located some spare keys and was able to exit the house. H Kaur and Mr Uppal then reattended inside to attempt to extinguish the fire, but they were unsuccessful in doing so.
When local members of the Country Fire Authority (‘CFA’) attended, they were both observed to be covered in black smoke and suffering from smoke inhalation. H Kaur was transported to the Northern Hospital for assessment and observations. Mr Uppal was taken to the Austin Hospital with the assistance of MICA because she required intubating. They were both not fit to provide a statement on that date.
On the attendance of police, the applicant was located crying and stating that he did not mean to hurt anyone. He advised police that he had set fire to his bedroom and the lounge. The applicant was detained and transported to the Northern Hospital by police pursuant to s 232 of the Mental Health Act. He was subsequently admitted into the secure mental health ward at the hospital.
On 13 May 2025, police attended the Coburg Motor Inn and arrested the applicant in the presence of his two carers. The applicant was initially compliant with police and was transported to the Mill Park Police Station for interview. When he was told that his carer was not available to attend the station, the applicant became aggressive. An assessment by the Victoria Police forensic medical officer, Dr Shamsul Kazi deemed him to be unfit to be interviewed.
As noted, the applicant made an unsuccessful application for bail to the Heidelberg Magistrates’ Court on 6 August. The matter returns to that Court on 6 October next for further mention. The applicant has no other outstanding matters for which he is on bail or for which he is subject to summons.

Previous convictions

The applicant has three relevant previous convictions in Victoria, each of which were for offending that was committed between 2 February 2010 and 10 March 2010.
On 5 June 2018, the applicant was sentenced by the Melbourne County Court, on one charge of armed robbery and one charge of failing to answer bail, to 179 days’ imprisonment (equivalent to time served) and placed on a community correction order for two years, with conditions that he undergo supervision and participate in the services specified in a justice plan. The offending occurred on 2 February 2010. On that date, the applicant and his co-accused approached the victim on a tram in the St Kilda area. The co-accused produced a flick knife and held it against the victim. The applicant demanded the victim’s mobile telephone. When the victim refused, the applicant snatched the telephone from him. The offenders and the victim each exited the tram in Ackland Street.
On 13 June 2012, the applicant was sentenced by Broadmeadows Court to 4 months’ imprisonment, which was wholly suspended, on one charge of robbery. The offending occurred in Essendon on 4 February 2010. After the victim got off a tram, he was approached by four males, including the applicant, who demanded his mobile phone and wallet. The victim, fearing being assaulted, handed over his mobile phone and some loose coins. The offenders (including the applicant) fled the scene.
On 21 October 2010, the applicant was sentenced by the Supreme Court, on one charge of attempted armed robbery and one charge of theft, to 7 months’ imprisonment, with a declaration of 226 days already served by way of presentence detention.[1] The offending occurred on 10 March 2010 in Brunswick. At the time of the offending, the applicant and his associate were riding bicycles. The applicant came across the victim and demanded his money and wallet. When the victim said that he had no money, the applicant produced a blade from a pair of scissors, and made further demands for the victim’s car keys. He pointed the blade at the victim’s chest. The victim was unable to produce anything of value. The applicant and his associate then fled the scene, and the applicant was subsequently apprehended.
[1]DPP v Wells [2010] VSC 469.
The applicant also has a criminal history in Tasmania, which includes the following previous convictions.
On 17 March 2014, the applicant was sentenced on one charge of theft to four weeks’ warrant of commitment (imprisonment). The offending had occurred on 11 February 2013.
On 15 August 2013, the applicant was convicted and sentenced to 5 years’ imprisonment on charges of aggravated burglary, arson, and committing an act intended to cause bodily harm. The arson occurred on 10 February 2013 in Devonport. The applicant and his co-offender unlawfully entered the administration building of the Oldaker Street Christian Centre and stole computers. On the following day, they returned to the centre, unlawfully removed the exterior cladding from the building, piled toilet paper in five or six locations, and set fire to them. They then attended Woolworths, purchased a bottle of methylated spirits, returned to the Centre, and splashed the methylated spirits over the previously lit area. The consequential damage was assessed in excess of $134,000.
The aggravated burglary took place on 14 December 2012 at the City Mission. The victim attended the City Mission to locate a bed, but was unsuccessful in doing so. The applicant and his co-accused then told him that there were beds available at a nearby church. When they approached the church, the applicant punched the victim in the face and twisted his arm behind his back. The applicant and the co-offender rifled through the victim’s pockets and stole $75 and tobacco. The victim sustained a fracture to his left forearm and required stitches near the elbow.
The offence, that constituted commission of an act intended to cause bodily harm, took place on 1 January 2013. On that date, the complainant was wandering the streets of Launceston. At 2:30am, the applicant, in company with three other males, approached the victim. When the victim refused to join them for a drink, the applicant threatened to bash him if he did not give him cigarettes. The victim was then forced into a laneway. The applicant pushed the victim to the ground, and while other males pinned him down, the applicant picked up a nearby brick and struck the victim to the head more than five times.
On 22 January 2005, the applicant pleaded guilty to one charge of unlawfully setting fire to vegetation, assault, and destroying property, which occurred on 8 September 2005.

The applicant’s circumstances

As I have noted, the applicant was born in Tasmania in 1987. His parents separated when he was two years of age. The applicant’s mother and father both had mental health issues, and the applicant experienced an abusive and traumatic childhood.
Subsequently, and throughout his life, he has experienced further significant trauma and instability. When he was seven years of age, he was removed from his mother’s care by the authorities because of her conduct towards the applicant, and he was placed in a foster home with two of his brothers. In that scenario, he was subjected to further violence and abuse, including sexual abuse. In the ensuing years, the applicant had approximately seventeen different placements as arranged by the Department of Human Services.
When the applicant was nine years of age, he commenced smoking cannabis, and he subsequently began using methamphetamine and heroin when he came to Melbourne in 2009. The applicant has experienced drug-induced psychoses which have involved him experiencing auditory hallucinations and paranoia.
The applicant struggled at school and attended special schools before he left school at the age of fourteen years. He then had some employment in gardening, farming and factory jobs. Since he relocated to Melbourne in 2009, he has not been engaged in any further employment.
The applicant has long-standing intellectual and mental impairments. Testing in 2004 revealed that his IQ was 73. In July 2010, he was examined at Port Phillip Prison by a consultant forensic psychiatrist, Dr Danny Sullivan, for the purposes of a plea. Dr Sullivan concluded that the applicant has a clear intellectual disability which is in the mild range. His disability is evident in his poor judgment, concrete thinking and impaired psychosocial adjustment.
Subsequently, the applicant was examined by Ms Carla Ferrari, a forensic psychologist, in 2018. Ms Ferrari concluded that the applicant meets the criteria for Schizoaffective Disorder, Posttraumatic Stress Disorder, Opioid Use Disorder, Borderline Personality Disorder, and intellectual disability.
As I have noted, the applicant is a participant in the National Disability Insurance Agency (NDIA). The NDIA funds the applicant to be supported by a number of supports, that include a Specialist Support Coordinator (‘My Right 2 Voice’), and Boundless Disability Nursing Care (‘Boundless’).
The applicant’s Specialist Support Coordinator, Ms Leeona Pollard, provided a letter in support of the application.
In the letter, Ms Pollard outlined the supports that are available to the applicant. In particular, the applicant is provided with one-to-one 24 hour, seven day per week, support staffing within a Specialist Disability Accommodation (SDA) in a single occupancy setting at 18 Austral Street, Beveridge. That property is of a Robust Build with the installation of fire sprinklers which have been reviewed and approved by the CFA. The role of the daily one-to-one support worker is to assist the applicant with day-to-day tasks within the home as well as support his access to the community. In addition, the applicant will have available a behaviour support practitioner and occupational therapist. The latter will provide capacity building supports, which include access to allied health for occupational therapy and speech therapy, and behaviour intervention planning. Further, the applicant will have available specialist support coordination at levels 2 and 3.
Ms Pollard also noted that the applicant is linked with key mainstream services that include:
·A local general practitioner for physical health and prescription coordination.
·Department of Families, Fairness and Housing (DFFH) Complex Clients Team for case consultation, collaborative system navigation and ‘wraparound’ support.
·A referral for DFFH Forensic Disability Services has been completed for access, on a voluntary basis, to offence-related treatment programs and courses, clinical consultation for behaviour support planning and guidance and support for the team in managing risk.
·On release, Ravenhall Correctional Facility will complete a referral and handover for a public mental health service, Goulburn Valley Area Mental Health, for ongoing psychiatric support and medication management.
Ms Pollard further noted that the onsite support, which has been, and will be, available to the applicant, includes trained staff, who have worked with the applicant for a long time, who have built trust with him, and are aware of his triggers.
Ms Pollard explained that, in response to the applicant’s high risk profile and his recent offending, the following risk mitigation strategies have been, or will be, made available to promote safety and to support the applicant’s reintegration into the community:
·Fire sprinklers have been installed in the specialist disability accommodation property in Beveridge.
·A wall-mounted flameless lighter and fireproof rubber matting have been installed outside the property to provide a safe designated smoking area for the applicant who is a heavy smoker.
·All staff have received fire and safety training, including the use of fire extinguishers, fire blankets and emergency procedures in the event of a fire.
·There will be ongoing collaboration with the CFA, which will include multiple onsite property visits, and the provision of direct contacts in the event of a fire-related incident.
·A forensic risk assessment is currently being undertaken, by Problematic Behaviour Support Services, to evaluate the risks to the community concerning fire-related behaviour and potential threats to the staff.
·DFFH is organising additional training for staff to enhance understanding of the applicant’s presentation, associated risks, and appropriate management risk strategies.
·A voluntary referral has been arranged to the DFFH forensic disability clinical service for access to offence-related treatment programs, clinical consultation and risk management guidance for the care team.
·On release, the applicant will initially receive two-on-one support during daytime hours for the initial period of one to two weeks, in order to manage immediate risks while he settles in to the new property.
·Upon the applicant’s release, the Support Coordination Care team will research and complete a referral to link the applicant with an alcohol and other drug program with his consent.
The application for bail is also supported by a Cultural Pathways Plan prepared by Ms Chanel Kinniburgh, Koori Jurisdiction Partner, Dhumba Murmuk Djerring Unit.
In her report, Ms Kinniburgh explained that, in addition to existing NDIS supports, the applicant may be referred to the SALTIE clinic. That clinic provides forensic and disability services for people who are involved in the justice system, including persons with complex cognitive psychosocial and physical disabilities. The supports aim to manage the risk of reoffending, address behaviours of concern, and uphold the rights and responsibilities of people with a disability.

In addition, Ms Kinniburgh explained that another service available is Hard Cuddles, which delivers trauma-informed counselling and rehabilitation, both in the community and in custody, for serious violent and sexual offenders. The programs combine behavioural therapy, capacity building, emotional regulation, male mentoring and men’s workshops, which aim to reduce reoffending while promoting accountability, self-awareness and positive community reintegration.
On the hearing of the application, Mr Dilpreet Singh gave evidence on behalf of the applicant. Mr Singh is an endorsed enrolled nurse employed by Boundless Disability Nursing Care. Since February 2024, Boundless has been engaged by NDIS to provide support services to the applicant.
Mr Singh commenced working in that capacity in late March 2025 and he is now the team leader of the group of staff who provide 24‑hour nursing service and support to the applicant. Since commencing work with the applicant, Mr Singh has worked between three and five shifts each week. During that time he had the opportunity to view the applicant while he was under the influence of drugs. Mr Singh explained that at those times the applicant would experience hallucinations and delusions. However, he was compliant with his fortnightly depot injections that he was receiving from Noogal Clinic in Mill Park. Mr Singh said that, when the applicant was under the influence of drugs, Mr Singh would address the paranoia experienced by the applicant by speaking to him and distracting him, which was generally effective.
Mr Singh stated that if the applicant were granted bail, he would initially be provided with support workers on a two-to-one basis for the first few weeks while he was settling in. He said that the support workers of Boundless had received training from an occupational therapist and from a behaviour support specialist which is designed to address the applicant’s particular issues. He said that staff have already been employed and trained in that respect. Further, the staff members, who will attend the applicant, would be both male and female. Previously the applicant wished only to be attended by female staff, and Mr Singh had been an exception to that rule. However, the applicant is now receptive to being attended also by male staff.
Mr Singh said that if the applicant were granted bail, he would be escorted to his appointments, and that staff would engage in particular distraction strategies and engage him in activities to keep him distracted, which are generally effective in addressing his mental state issues. In addition, the applicant has expressed a desire to address his drug addiction problems, and, if he were granted bail, staff of Boundless would assist him by taking him to treatments. Mr Singh also stated that if the applicant were granted bail, staff would seek to ensure that the applicant did not have the opportunity to obtain drugs, and they would take steps to ensure that he did not use his NDIS funding to purchase drugs.
Mr Singh explained that the owner manager of Boundless, Ms Sandeep Uppal, has visited the applicant while he had been remanded in custody. The applicant has expressed to Ms Uppal a willingness to engage in programs of drug and alcohol counselling. Mr Singh gave an assurance that the informant would be contacted if the applicant were to be observed to be either in possession of, or under the influence of, drugs. I interpolate that that, on the hearing of the application, it was confirmed that all of the applicant’s urine screens while in custody have been tested negative for drugs.
Mr Singh confirmed that the premises in Austral Street, Beveridge have a wall‑mounted electric lighter installed in it. He said that the applicant mainly smokes at home, and that staff would be responsible for ensuring that he was not in possession of any cigarette lighters.
In cross-examination, Mr Singh agreed that, before the date of the second offence on 29 April 2025, the applicant had a behaviour support specialist available to him, where he had been regularly receiving depot injections at Noogal Clinic to address his substance abuse and his mental health issues. In addition, Boundless staff were using strategies to address the applicant’s mental conditions, including engaging in a reassurance strategy and taking him into the community. Mr Singh agreed that he himself had, before 29 April 2025, used all the strategies which were available to assist the applicant in respect of his wellbeing, which are the same as those that Mr Singh will be using in the future if the applicant were released on bail.
In re-examination, Mr Singh said that if the applicant were released on bail, there would be four points of difference compared to the manner in which the applicant was cared for before his remand. First, some of the staff engaged in attending to the applicant would be male. Secondly, initially the applicant would be provided with two‑to‑one support. Thirdly, the staff will have been given specific training relating to the applicant’s medication and issues. That training is being and will be provided by the occupational therapist and behaviour support specialist. Fourthly, the applicant will be receiving specific treatment for his drug addiction problem.

Informant’s response to application

The informant, Detective Senior Constable Prasad, compiled a report in response to the application. In the report, it is noted that Ms Uppal, the owner of the premises in Wallaroo Way, Doreen, has stated that she holds no concerns if the applicant were granted bail, as the applicant has been supplied SDA Robust Housing that will have the right level of care, the new housing has nothing to do with Ms Uppal, and the applicant has expressed remorse. The victim, H Kaur, has also been consulted and expressed the view that she holds no concerns if the applicant were granted bail as she considers that the applicant deserves a second chance. H Kaur noted that it was the applicant’s mental health condition that triggered his offending, that he will not attempt to contact or locate her, and that she will not have any further involvement with his residence or care.
In his report, Detective Senior Constable Prasad has noted that in the week that preceded each of the two arson offences, the applicant had been observed by his carers to be using ketamine, heroin and methylamphetamine. His substance abuse appears to have fuelled his offending and the deterioration of his mental health. Detective Senior Constable Prasad has expressed concern that if the applicant were to relapse, it is highly likely he would reoffend, as no proposal has been put before the Court as to how his drug addiction is to be sufficiently addressed. Further, Detective Senior Constable Prasad has expressed concern that the applicant appears to use arson as an emotional outlet when he does not get his own way or when he is angered. On each occasion, the applicant put not only himself, but also the lives of those who are employed to support him, at risk. In addition, he noted that the applicant does have a history (in 2012) of failing to answer bail.

Bail provisions

Section 4 of the Bail Act 1977 (‘the Act’) provides that a person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the Court is required to refuse bail.
Section 4E(1) of the Act provides that bail must be refused if the Court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would (inter alia) endanger the safety or welfare of another person, or fail to surrender into custody in accordance with the conditions of bail. Section 4E(2) provides that the respondent bears the burden of satisfying the Court as to the existence of such a risk, and that the risk is unacceptable. Section 4E(3)(b) provides that in considering whether there is an unacceptable risk, the court must consider whether any conditions of bail may be imposed which mitigate the risk so that it is not unacceptable.
Section 4E(3)(a) provides that, in determining whether the applicant is an unacceptable risk, the Court is required to take into account the ‘surrounding circumstances’, which are specified in s 3AAA of the Act.
Relevantly, for the purpose of the present case, the circumstances specified in s 3AAA include the following: whether if the applicant were found guilty of the offences, he would be sentenced to a term of imprisonment, and if so, whether the time that the applicant would spend remanded in custody, if bail were refused, would exceed that term of imprisonment; the nature and seriousness of the alleged offending; the strength of the prosecution case; the criminal history of the applicant; the extent to which the applicant has complied with previous grants of bail; the applicant’s personal circumstances, associations, home environment and background; any special vulnerability of the applicant, including (inter alia) being an Aboriginal person, experiencing ill health (including mental illness), or having a disability (including an intellectual disability and cognitive impairment); the availability of treatment or bail support services; the length of time the applicant is likely to spend in custody if bail is refused, and the likely sentence to be imposed should he be found guilty of the offences with which he is charged.
As noted, the applicant identifies as an Aboriginal person. Section 3A of the Act provides that, in making a determination whether to grant bail in relation to an Aboriginal person, the Court must take into account any issues that arise due to the applicant’s Aboriginality, which include (inter alia): the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being overrepresented in the criminal justice system; the risk of harm and trauma that a term of custody poses to Aboriginal people; and issues that arise in relation to the applicant’s history, culture and circumstances, including the impact of trauma and intergenerational trauma, including abuse, neglect, loss and family violence, mental illness suffered by the applicant, and any disability of the applicant.
In HA (a pseudonym) v The Queen,[2] the Court of Appeal described the significance of those provisions as follows:
Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[3]
[2][2021] VSCA 64.
[3]Ibid [58]–[59] (Maxwell P, Kaye JA).
In El Nasher v Director of Public Prosecutions,[4] the Court of Appeal explained the process of evaluation of the question whether an applicant for bail constitutes an unacceptable risk in the following terms:
What constitutes an acceptable risk (or conversely, an unacceptable risk) will always be a question of fact and degree. There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[5]
[4][2020] VSCA 144.
[5]Ibid [51] (Priest, T Forrest and Weinberg JJA).

Submissions

Mr A Singh, who appeared on behalf of the respondent, submitted that if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of other persons, and that he would fail to surrender into custody in accordance with the conditions of his bail.
In particular, by reference to the factors specified in s 3AAA, Mr A Singh submitted that the offending in the case is serious in nature. An aggravating feature of the second offence, on 29 April 2025, is that the applicant initially blocked his carer, H Kaur, from entering the bedroom to extinguish the fire, and later he locked the security door to the premises, which effectively caged H Kaur inside the burning property. When interviewed by police, the applicant said that he had ignited the fires because he was being impulsive and he did not think that there was anything wrong in him doing so. Thus, it was submitted that the applicant has no proper insight into the wrongfulness of his actions. Mr A Singh submitted that in view of the applicant’s previous convictions, and the serious nature of the offending in the present case, if the applicant were convicted, it is probable that he would receive a lengthy term of imprisonment, which would exceed any period of remand if the applicant were not granted bail.
It was further submitted that the prosecution case on each charge is strong, and that if the applicant is refused bail, the time spent on remand would not exceed any period of imprisonment imposed on the applicant. In that respect, Mr A Singh also noted that the applicant has a significant and relevant criminal history in both Victoria and Tasmania, and that he has previously been sentenced to terms of imprisonment.
Mr A Singh noted that the applicant’s affidavit states that he will be supported by a number of entities, including a My Right 2 Voice Specialist Support Coordinator, Boundless Disability Nursing Care, a behaviour support practitioner, and an occupational therapist. It was submitted that those supports will not be sufficient to alleviate the risk of the applicant reoffending for three reasons. First, at the time of the offending, the applicant was a recipient of NDIS services, and those services could not deter him from the offending. Secondly, there is no information before the Court to explain what the services will actually be doing in order to proactively manage the risk that the applicant poses to the safety of the community. Thirdly, nothing has been put before the Court to confirm how the applicant’s substance abuse issue will be sufficiently addressed if the applicant were to be released on bail. In particular, there is no program presently in place to address that issue.
In response, counsel for the applicant, Mr Malik, submitted if the applicant were released on bail, it should not be concluded that there would be an unacceptable risk the applicant would endanger the safety or welfare of another person, or fail to surrender into custody in accordance with the conditions of his bail.
Mr Malik submitted that if the applicant were released on bail, he would be subject to stringent restrictions in terms of his compliance with medication, his movements, his access to drugs, and his attendance at rehabilitation programs within a secure environment. Mr Malik further submitted that if the applicant is not granted bail, he may serve a longer period on remand than any term of imprisonment which might be imposed on him if he pleaded guilty or were found guilty. While the offences themselves are serious, Mr Malik noted that the applicant would have a number of significant mitigating factors available to him which would reduce his moral culpability for the offending.
In respect of the issue of unacceptable risk, Mr Malik submitted that a number of circumstances have changed since the applicant was last in the community. In particular, there is in place a regime that will address the underlying causes of the applicant’s offending behaviour. The applicant will not have access to cigarette lighters and fire-lighting paraphernalia, and he will not have the opportunity to be on his own in the community and access drugs, as he will be accompanied at all times when he is out in the community. Further, Mr Malik emphasised that the supports that are in place will include drug and alcohol counselling, which the applicant is now willing to attend.

Analysis and conclusion

It cannot be gainsaid that, if the applicant were released on bail, there would be a material risk that he might engage in further conduct which might endanger the safety of other persons and himself. The two offences, that are the subject of the charges, clearly demonstrate the existence of such a risk. In addition, the applicant has a number of previous convictions, including for offences of violence. He is subject to long-standing and quite serious mental health issues.
The critical question is whether, taking into account the surrounding circumstances, and the steps which would be taken to address the applicant’s problems if he were released on bail, the risk of the applicant engaging in such conduct would be unacceptable. As Mr A Singh correctly pointed out on behalf of the respondent, in addressing that question, it is necessary to take into account the guiding principles which are specified in s 1B of the Bail Act, that include (inter alia) that parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.
As I have noted, in considering whether the risk is unacceptable, it is necessary to take into account the ‘surrounding circumstances’ specified in s 3AAA of the Act. In particular, in the present case, it must be acknowledged that the offending alleged against the applicant was serious. It would seem that, prima facie, the prosecution has a strong case in respect of each of the charges. The applicant has a relevant criminal history with a number of previous convictions.
If the applicant is not granted bail, it is a matter of speculation whether the time that he would spend on remand would or might exceed any sentence of imprisonment which might ultimately be imposed on him. It is anticipated that there may be a delay between 10 and 12 months between the time of the applicant’s first remand in custody, and the hearing and determination of any contested charges. It is difficult to predict, or express any view as to, the sentence which might be imposed on the applicant if he were convicted. While the offences were objectively serious, there are a number of matters which would reduce the applicant’s subjective culpability for the offending, including issues relating to his traumatic, dysfunctional and disadvantaged upbringing[6] and, significantly, his psychological disorders, and the role that they played in his offending.[7]
[6]Bugmy v The Queen (2013) 249 CLR 471.
[7]Compare Verdins v The Queen (2007) 16 VR 269, 276 [32].
Further, in assessing whether the relevant risk is unacceptable, it is necessary to take into account the particular vulnerabilities of the applicant, arising from his long‑standing psychological disorders and his intellectual disability. It is also relevant, under s 3A and s 3AAA, to take into account that the applicant is of Aboriginal descent, although it would appear that he has not had, and does not have, any significant connection with his heritage.

In considering whether the material risk, that I have identified, is unacceptable, it is necessary to take into account that if the applicant is granted bail, he will have available a number of supports which are designed to address his underlying psychological issues that mediate his offending. Certainly, at the time of the offending, the applicant did have a significant body of support designed to address his underlying psychological issues and limitations. Notwithstanding the availability of those supports, which included 24-hour one-on-one support by staff of Boundless, the charges against the applicant comprise two serious offences that he is alleged to have committed during the time in which that support was available and operative. Nevertheless, as Mr Malik pointed out on behalf of the applicant, a number of additional protective factors are now available to the applicant that were not in place at the time of the offending.
First, if the applicant were released on bail, for the initial period of his release, he would receive two-on-one attendance by Boundless staff. One of those attendants would be male.
Secondly, and importantly, all of the Boundless staff have been, and will be, trained in strategies that are specific to address the particular issues arising from the applicant’s psychological disorders.
Thirdly, the premises, in which the applicant would reside, will have provision to minimise the risk of the applicant engaging in acts of arson. In particular, a wall‑mounted flameless cigarette lighter and fireproof rubber matting had been installed. Fire sprinklers have also been installed in the property. The staff have received fire and safety training.
Fourthly, and importantly, the applicant is now genuinely motivated to engage in necessary drug and alcohol treatment. The applicant has expressed such an interest to Ms Sandeep Uppal in her visits to him while in custody. The applicant’s urine screens while in custody have all been negative. Appropriate treatment, of the applicant’s drug problem is of fundamental importance in addressing a central cause of the applicant’s behavioural problems, and his offending.
In addition to those matters, in his evidence, Mr Dilpreet Singh undertook (but not in the strict legal sense) to advise the informant if at any time there was any conduct by the applicant in which he was observed to be consuming drugs, or otherwise breaching the terms of his bail.
If the applicant were released on bail, he would be subject to specific conditions. They would include that he reside at the premises in Austral Street, Beveridge, that he not consume any illicit substances, and that he submit to urine testing, and provide the results of that testing, as directed by the Informant. That last condition should assist to dissuade the applicant from resorting to the consumption of illicit substances. It should also enable the Informant to readily detect if the applicant were to breach the condition of his bail that he not use illicit substances.
In addition, I consider that this is a case in which there should be a process of judicial monitoring of the applicant’s conduct on bail, in order to oversee his compliance with its terms. Accordingly, I would also order that the applicant appear for bail monitoring before this Court on 9 September next, and that he must appear on any further dates for bail monitoring as appointed by this Court during the term of his bail.
Taking those matters into account, I am not satisfied that, if the applicant were released on bail, the risk that he would endanger the safety and welfare of others is unacceptable. Nor am I satisfied that if the applicant were released on bail there would be an unacceptable risk that he would not surrender into custody in accordance with the conditions of his bail.
Accordingly, I propose to make an order that the applicant be admitted to bail on his own undertaking and subject to the following conditions:
(1)The applicant appear at the Heidelberg Magistrates’ Court on 6 October 2025 and then surrender himself, and must not depart without leave of the Court.
(2)The applicant reside at 18 Austral Street, Beveridge in the State of Victoria, and not depart from those premises other than in the company of a member of staff of Boundless Disability Nursing Care.
(3)The applicant not consume any drug of dependence or alcohol within the meaning of the Drugs Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(4)The applicant submit to urine testing and provide the results of that testing, as directed by the Informant or her nominee within 24 hours of being given a direction to do so by the Informant or his nominee.
(5)The applicant attend and receive such:
(a) drug addiction assessment and treatment;
(b) mental health assessment and treatment;
as directed by the team leader of Boundless Disability Nursing Care who is responsible for his care.
(6)The applicant must not contact, directly or indirectly, any witnesses for the prosecution, except the Informant.
(7)The applicant is not to leave the State of Victoria.
(8)The applicant must appear for bail monitoring before the Court at 10am on 9 September 2025 and he must appear on any further dates of bail monitoring appointed by this Court during the course of this order.
(9)The applicant not be in possession of any cigarette lighters or matches.

[2025] VSC 526

28 August 2025