Re Windley
[2021] VSC 432
•20 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 095
| IN THE MATTER of the Bail Act 1977 |
| -and - |
| IN THE MATTER of an application for bail by LACHLIN WINDLEY |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 May, 17 May 2021 |
DATE OF JUDGMENT: | 20 July 2021 |
CASE MAY BE CITED AS: | Re Windley |
MEDIUM NEUTRAL CITATION: | [2021] VSC 432 |
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CRIMINAL LAW – Application for bail – Persistent contravention of family violence intervention order – Sexual assault – Unlawful assault – Exceptional circumstances made out – No unacceptable risk.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Barker | Michael J Gleeson & Associates |
| For the Respondent | Ms B Cowley | Victoria Police |
HIS HONOUR:
By notice dated 21 April 2021, Lachlin Windley (‘the applicant’) makes application for bail to this Court. The applicant is charged with two charges of sexual assault, two charges of unlawful assault, the persistent contravention of a family violence order and nine charges of contravention of family violence orders. On 3 May 2021 and 17 May 2021 the matter came before me and I granted the application for bail. I indicated that I would provide my reasons and these are those reasons.
Summary of alleged offending
An interim Family Violence Intervention Order (FVIO) was imposed on 1 September 2020 in which the applicant is named as the respondent and his former partner, KB, is named as the protected person. In relation to the present offending, it is suggested that the applicant has been persistently in breach of the FVIO since it was imposed, in that he has continued to reside at KB’s premises in direct contravention of the provisions of the order. There are also a number of other matters identified as single breaches of the order.
The charges of sexual assault arise out of contact between the complainant and the applicant over the days of 7 and 8 October 2020 when the difficult relationship between them came to a head. The other charges of unlawful assault arise out of similar conduct around that period of time. The offending may be summarised in the way that it is described by the complainant: that by persisting to live at her premises, the applicant is simply not prepared to take no for an answer and has in other ways attempted to assert his control over the complainant.
The applicant
At the time of this alleged offending, the applicant was on a Community Corrections Order (CCO) which had been imposed on 24 April 2020 for offences relating to burglaries, thefts and bail offences. As part of the 12-month order, the applicant was required to undergo 100 hours unpaid community work and some therapeutic conditions were also imposed.
The applicant engaged well in supervision and attended 13 appointments. He was absent for three appointments. He was non-responsive after his appointment on 18 September 2020. He said he had lost his mobile phone. In any event, he was remanded in custody soon after on 9 October 2020. He did not engage at all with the required mental health and drug and alcohol counselling requirements and he completed 2.5 hours of his 100 hours unpaid community work.
The interim FVIO where the complainant is the protected person was made, as I have already noted, on 1 September 2020, and remains in force with the usual full exclusion conditions.
The applicant would have, had he been excluded from the complainant’s premises, as he was obliged to be, regarded himself homeless and it was in part due to those circumstances that he continued to impose upon the complainant.
The applicant has an extensive criminal history, including history for contravention of bail and of failing to comply with community corrections orders. That has led to him serving a number of relatively short periods of imprisonment.
The applicable legislation
Step 1 – exceptional circumstances test
As the applicant is charged with committing a Schedule 2 offence within the meaning of the Bail Act1977 (‘the Act’), namely persistent contravention of a family violence intervention order, whilst on a Community Corrections Order, bail must be refused unless he can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[1] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in s 3AAA(1) of the Act.[2]
[1]Ibid, ss 4AA(1), 4A(1A) and 4A(2).
[2]Ibid s 4A(3).
Step 2 – unacceptable risk test
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’.[3] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[4] In considering whether any relevant risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[5]
[3]Ibid ss 4A(4) and 4D(1)(a).
[4]Ibid ss 4D(2)-(3) and 4E(1)-(2).
[5]Ibid s 4E(3).
Family violence risk
Section 5AAAA(2) of the Act provides that, in considering the release of a person charged with family violence offences on bail, the Court must:
(a) make inquiries of the prosecutor as to whether there is in force a FVIO, FVSN or recognised DVO made or issued against the applicant; and
(b) consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.
The applicant identifies himself as Aboriginal, as does his mother. His great-grandfather was Aboriginal. It appears from evidence given during the hearing of the application that the family has not universally so identified. Nonetheless, the applicant has the benefit of the matters set out s 3A of the Act.
Submissions in support of the application
If released on bail, the applicant would reside at 16 Shannon Street, Wentworth in New South Wales with his aunt, Ms Terri Brown. I will come to Ms Brown in detail in a moment.
It is submitted on behalf of the applicant that it is significant that the proposed address is a considerable distance away from the complainant and, if it be made good, offers a guarantee to the complainant of no direct interference with her.
The applicant has some training and has obtained various certificates whilst in prison, but his work history has been sporadic and inconsistent. He does intend, however, with the assistance of his aunt, to seek employment in or around Wentworth.
The matter is listed for hearing on 2 July of this year and that will mean a total of 266 days would be served by the time the matter comes on for hearing.
There is a possibility that the applicant may receive a sentence greater than that term, but it is not out of the question that the applicant may receive a sentence of no greater than the 266 days he would have served. There is still the question of what is going to happen to the CCO; the breach proceedings now being in place. It may well depend on how the applicant behaves in the period between now and his hearing date as to what view might be taken by the court.
I am obliged and I do take into account the fact that the conditions in the prisons have been somewhat more difficult during the COVID-19 pandemic. Indeed, the applicant would have been subject to a direct period of 14 days quarantine when he was first admitted to custody and any other lockdowns that have occurred in the period since. Although, in that regard he does get some advantage for any lockdown days by way of that being counted as extra days served.
Taking into account all the matters set out in s 3AAA of the Act, it is submitted on behalf of the applicant that I should accept that exceptional circumstances have been made out.
Submissions in opposition of the application
It was submitted on behalf of the respondent that considering the applicant’s history and his general behaviour in relation to these matters, I should not find that exceptional circumstances are made out. It was further submitted that even if I did, I should be satisfied that the applicant is an unacceptable risk of offending. In particular, of offending whilst on bail and interfering with the complainant as a witness. It was pressed that I am obliged, pursuant to the provisions of the Act, to take into account the family violence risks in his case.
Analysis
Almost entirely because of the evidence of Ms Brown, I have come to the conclusion that exceptional circumstances have been made out, in particular because the applicant will be significantly removed from any area where the complainant will be, with very few means of being able to readily get anywhere near the her.
That leaves open, of course, the question of unacceptable risk. As already noted, the applicant has accommodation available to him, provided by his aunt. There is a history of the applicant having done very well when residing with his aunt previously. In the past the applicant has lived with his aunt for a period of 18 months and appeared to have done very well, particularly in meeting court-ordered appointments and doing all other matters he was required to do.
I was very impressed with the evidence given by Ms Brown. The applicant should be very grateful for the support which Ms Brown will provide, and should do all in his power to reward her for her confidence in him by keeping all of his conditions of bail. I also noted that Ms Brown has given me an undertaking that she would report any breaches of bail, or conditions of bail, that will be imposed upon the applicant.
I am therefore satisfied that by the imposition of appropriate conditions, the risk that the applicant represents could be regarded as not unacceptable. It will be important for him to understand that notwithstanding the temptation that arises about the recent birth of his daughter, that he must not contact the complainant in any way whatsoever. That is, he must keep the terms of the FVIO that are in place. He should simply keep an eye on the future, as to what arrangements might be made for him to have some contact with his daughter, but he is not, in any circumstances, to presume that he can simply make his own rules about the matter. It will only lead to greater trouble and one of the first things that would occur would be the revocation of this bail.
In the past, the applicant has used telephones, in particular, to contact the complainant persistently and in an unwarranted way. I am going to place some trust in him to have a phone so that he can organise his ordinary affairs, but there will be strictures about the circumstances in which he has the phone and how that phone is to be used.
Ruling
The court is satisfied that exceptional circumstances exist that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
Ms Terri Brown, the applicant’s aunt, provided an undertaking to the court to report any breaches of bail to the informant, or to the police.
The applicant is subject to family violence intervention order L12023646, in which he is the respondent.
Lachlin Windley will be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Melbourne Magistrates’ Court on 2 July 2021 and then surrender himself and must not depart without the leave of the court and if leave is given, return at the time specified by the court and again surrender himself into custody.
(b) He reside at 16 Shannon Street, Wentworth in New South Wales and not change that address without the leave of the court.
(c) He remain at those premises between the hours of 9pm and 6am each day for the duration of bail, except for in the company of Terri Brown or William Gilbert.
(d) He report each Monday, Wednesday and Friday to the officer in charge of the police station at Mildura, or his or her nominee, between the hours of 7am and 8pm.
(e) He abstain from the consumption of any alcohol or drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act without lawful authorisation under this act.
(f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(g) He attend any appointments arranged at Coomealla Health and accept any treatment recommended by that service and to attend Dareton Mental Health for any appointment arranged for him and accept any treatment recommended by that service.
(h) He not contact directly or indirectly any witness for the prosecution except the informant.
(i) He is not to possess or use more than one mobile phone.
(j) He is to provide the informant or her nominee with his phone number, IMEI number and any password or PIN of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change.
(k) He produce the mobile phone he possesses for use for inspection upon request of the informant or her nominee.
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