Re Williams
[2022] VSC 712
•22 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0277
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by Benjamin WILLIAMS |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2022 |
DATE OF JUDGMENT: | 22 November 2022 |
CASE MAY BE CITED AS: | Re Williams |
MEDIUM NEUTRAL CITATION: | [2022] VSC 712 |
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CRIMINAL LAW – Bail – Alleged armed robbery by 30-year-old applicant of his mother – No relevant criminal history – Compelling reason required to be demonstrated – Court Integrated Services Program support on offer – Respondent conceded it would be open to Court to find a compelling reason – Also conceded that risk posed could be ameliorated by the imposition of strict conditions – Compelling reason made out – Unacceptable risk not established – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Joosten | Barwon South West Lawyers |
| For the Respondent | Ms J Poole | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail on charges he faces of armed robbery, theft and common law assault. The alleged victim of the charges is the applicant’s mother, Michelle Williams.
It was agreed between the parties that the Court was required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).[1]
[1]Armed robbery is an offence which is contained at item 22 of Schedule 2 of the Act.
Prior to the commencement of the application, the position of the respondent was that whilst it would be open to the Court to find that a compelling reason in justification of bail existed, bail was opposed on the basis of an unacceptable risk that the applicant would endanger the safety or welfare of any person, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice.
During the hearing of the application, Ms Poole, who appeared for the respondent, fairly and, in my view, correctly conceded that any risk posed by the applicant may be able to be ameliorated by the imposition of conditions such that it would not be unacceptable. Bail was formally opposed, but no strong opposition was advanced to a grant of bail.
In the circumstances, I was satisfied that the applicant had discharged the onus resting on him of satisfying the Court of a compelling reason, and that the respondent had not discharged the onus resting on him of proving an unacceptable risk. I therefore made a grant of bail to the applicant.
I indicated at the time that I would publish my reasons at a later time. These are those reasons.
Procedural history
The applicant was arrested and remanded in custody on 2 September 2022. He has made two unsuccessful applications for bail. The first was on 2 September 2022 in Ballarat Magistrates’ Court. The applicant was unrepresented on that occasion. Bail was refused on the basis that the applicant posed an unacceptable risk. A second application proceeded in Ballarat Magistrates’ Court on 6 October 2022. The applicant was represented on this occasion. Bail was refused again due to a finding of unacceptable risk.
On 2 September 2022, the police applied for and were granted an interim family violence intervention order (‘FVIO’) against the applicant naming his mother as the protected person. The interim FVIO has full no-contact conditions, with the exception that the applicant may communicate with his mother through a lawyer, or attend her home to collect personal property if in the company of a police officer. The interim FVIO remains in effect until further order, and the matter is due to return to the Ballarat Magistrates’ Court on 8 December 2022.
The charges upon which the application for bail is brought are next before Ballarat Magistrates’ Court on 8 December 2022 for committal mention.
Summary of alleged offending
As indicated earlier, the complainant in this matter is the applicant’s mother, Michelle Williams.
At the time of the alleged offending, the complainant was living in Ballarat East, and the applicant was living in a bungalow on the same property.
At 3:25am on 2 September 2022, the applicant attended the main residence of the Ballarat East property, entered the complainant’s bedroom while she was asleep, and demanded cigarettes. The complainant told the applicant he could take what she had, which the applicant did, and then left the room.
Shortly after, the applicant returned to the complainant’s bedroom brandishing a small kitchen knife and told the complainant he was taking her phone, apparently being of the belief that the complainant had been talking about him to people in the community. It is alleged that the applicant then put his forearm on the complainant’s chest, restricting her movement, and made stabbing motions with the knife toward her while demanding, ‘Give me your phone, give me your fucking phone.’ The knife is not alleged to have connected with the complainant’s body at this time.
A struggle ensued, during which the complainant sustained a small cut to her wrist. The applicant took the complainant’s phone and left the address with the knife in his pocket.
Sometime during the incident, the complainant’s father, who had been asleep in another room of the house, was awoken by a scream from the complainant, and the police were called.
The applicant was located by police in the vicinity of the Ballarat East property and arrested. In an interview with the police the applicant made partial admissions but denied knowing how the complainant sustained an injury to her wrist.
Personal background
The applicant is 30 years old. When he was an infant, his maternal grandparents took over his care. He reports living with and being raised by his grandparents for most of his childhood. He was educated at primary schools in the Ballarat area before attending Ballarat Secondary School, leaving during year 9 due to bullying and social issues. He has had no formal training and limited employment history. He has applied to engage in a TAFE course at Federation University in the area of automotive work. During early adolescence, the applicant started drinking alcohol, which evolved into a pattern of misuse by the time he had reached his mid-twenties. This occurred, to some extent, in the context of his attempting to moderate hyperactive thoughts. Around the time of the alleged offending, the applicant was binge-drinking on about a monthly basis. The applicant has no formal diagnoses in relation to his mental health or cognition, but reports a history of anxiety, social discomfort and strong emotions, including ‘controlling anger’, as well as learning difficulties and other cognitive challenges. At the time of the alleged offending, the applicant was unemployed and on Centrelink payments. He was living at a property in Ballarat East, where his grandfather and mother also lived, and continue to live. The applicant’s grandmother had recently gone into aged care. The applicant’s mother had apparently moved into the house to care for her father. The applicant is unable to return to this address due to the circumstances of the alleged offending, and reports not having had contact with his family since his remand.
Criminal history
The applicant has no criminal history in the adult jurisdiction. He has one disposition in the Children’s Court in 2010 for a single offence of criminal damage, which was dismissed following his compliance with a 12-month adjourned undertaking.
The law
Section 1B of the Act sets out the guiding principles of the Act, 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.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[2] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]The Act, s 4C(2).
[3]The Act, s 4C(3).
If satisfied that a compelling reason exists, 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.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[4]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[5]
[4][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[5]Ibid [43].
Applicant’s submissions
Ms Joosten for the applicant relied upon a combination of matters set out in her written outline and oral submissions in proof of the existence of a compelling reason and in resisting the prosecution contention as to an unacceptable risk. They were as follows:
a) The lack of any significant criminal history by the applicant and the lack of any adverse bail history.
b) The fact that an interim FVIO is now in place. The order is a full no-contact order. The applicant has not been subject to such an order before, and there is no reason to suppose he would not comply with it.
c) The increased burden of remand as a result of the COVID-19 pandemic. Ms Joosten outlined the ways in which the 71 days spent thus far by the applicant in custody have been rendered more onerous by the restrictions which have applied, and still do apply in custody. This period, for a 30-year-old man with no criminal history and no previous period spent in custody, has had a salutary effect upon him.
d) The likely sentence upon conviction and the risk that the applicant would spend more time on remand than any sentence he would receive. It was submitted that upon conviction, in light of the applicant’s lack of prior convictions and the time he has already spent in custody, a community correction order would be open.
e) The availability of support services including those of the Court Integrated Services Program (‘CISP’). Ms Joosten relied on the contents of a report from CISP Remand Outreach Program (‘CROP’) dated 10 November 2022 in support of the contention that substantial support would be provided to the applicant should he be released on bail, including assistance where accommodation was concerned. The applicant had been recommended by the author of the report for case management. He had never had an opportunity to engage with this service before. It would provide the opportunity for various supports to be provided to the applicant as determined by CISP.
A number of these matters were expanded upon by Ms Joosten in her written outline. In addition, attention was given to a number of the circumstances contained within s 3AAA(1) of the Act. In the circumstances, it is unnecessary to further elaborate on these matters.
During the course of discussions, when I expressed some concern about the seemingly strange nature of the alleged offending, Ms Joosten pointed to the difficult relationship between the applicant and his mother. She indicated that there was nothing to indicate that the applicant was in the throes of a binge drinking episode at the time of the events. Nor was there any psychiatric issue which warranted exploration.
On the question of unacceptable risk, Ms Joosten submitted that in effect, the only matter being relied upon in support of that by the respondent was the nature of the alleged offending itself. The applicant has no prior convictions, and no history of committing offences on bail or breaching intervention orders. He has made no threats towards his mother, or expressed any intention of contacting her or returning to the property. As indicated in the CROP report, the applicant has demonstrated an understanding of the FVIO conditions and the consequences of breaching that order.
Ms Joosten submitted that the risk of the applicant committing further offences, endangering the safety or welfare of any person, or interfering with a witness could be reduced to an acceptable level through the imposition of stringent bail conditions.
On the troubled aspect of accommodation, it was submitted that whilst the applicant does not yet have stable accommodation, that should not be a prerequisite to the grant of bail. Given his lack of criminal history and limited formal supports in the community in the past, he should be given the opportunity to engage with the available housing services to achieve stable housing.
Respondent’s submissions
As indicated above, in the end, the prosecution opposition to bail was formal only. In reality, Ms Poole did not seek to dissuade me from a finding that any risk posed by the applicant could be ameliorated by conditions so as not to be unacceptable. She did note that although there were no reported instances of past family violence, the discussions the informant had had with the complainant indicated some background of tensions in this regard. However, Ms Poole noted the FVIO now in place, and accepted that the complainant ‘should be protected by that’.[6]
[6]Transcript 14.
Analysis
In all of the circumstances of the case, including notably the concession of the respondent in this regard, I was readily able to be persuaded of the existence of a compelling reason that would justify the grant of bail as a result of the combination of matters relied upon in this regard by Ms Joosten. The real issue in the application was the matter of unacceptable risk, to which I now turn.
The applicant, at the age of 30, had never been in significant trouble with the law. Nor was there any proven history of violence or aggression by him towards his mother, notwithstanding a somewhat strained relationship. The alleged offending was serious and quite inexplicable, but did not result in significant injury to the complainant. The motivation for it was difficult to understand but there was nothing to indicate that if the applicant was released on bail, there would be likely to be any return to such conduct. The concerns harboured by the complainant may be understandable, but there was every reason to suppose that the period of time the applicant had spent on remand – 71 days – would have had a marked effect on him, and impressed strongly upon him the need to comply with the FVIO to which he is now subject, and any conditions of bail imposed by the Court.
The availability of the supervision on offer from CISP was a significant matter in this application. This offered the prospect of support in a number of respects, including importantly in the area of accommodation, which would otherwise have been a concerning aspect of the application.
In the end, having considered all of the surrounding circumstances, including importantly the fact that upon conviction, it may well be that the conduct of the applicant could be met with a non-custodial disposition, I was not satisfied that any risk posed by the applicant would remain unacceptable with the imposition of stringent conditions.
I make the observation that the previous refusal of bail in the Magistrates’ Court was entirely understandable in light of the circumstances which prevailed at the time. Things had markedly changed by the time the application came before me, warranting the different conclusion I have reached.
Conclusion
For the above reasons, I made a grant of bail to the applicant.
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