Re Young
[2024] VSC 675
•30 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0241
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by Tenzin YOUNG |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 October 2024 |
DATE OF RULING: | 30 October 2024 |
CASE MAY BE CITED AS: | Re Young |
MEDIUM NEUTRAL CITATION: | [2024] VSC 675 |
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CRIMINAL LAW — Bail — Applicant charged with Schedule 2 offences alleged to have been committed while on bail for another Schedule 2 offence and while subject to a community correction order for other Schedule 2 offences — Requirement to show exceptional circumstances — Nature and seriousness of alleged offending — Strength of prosecution case — Criminal history — Availability of treatment and support service — Special vulnerability — Personal circumstances — Exceptional circumstances established — Applicant not an unacceptable risk — Bail granted for a fixed period — Bail Act 1977 (Vic), ss 1B, 3, 3AAAA, 3AAA, 4AA, 4A, 4D, 4E, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | R Backwell | RA Criminal Lawyers |
| For the respondent | A Singh (solicitor) | Victoria Police |
HIS HONOUR:
A. Introduction
On 15 October 2024, an application for bail was filed in this court on behalf of Tenzin Young (“Young”).
On 17 July 2024, Young was arrested and charged in relation to a number of drug and other offences. He has been on remand since that date.
At the time of his arrest, Young was on bail in relation to a number of separate alleged drug and other offences and was also the subject of a summons, a community correction order, an intervention order and an interim intervention order.[1]
[1]Further details of these matters are outlined in pars 8–44 below.
Young had previously made 2 applications for bail in the Magistrates’ Court of Victoria at Moorabbin on 18 July 2024 and 14 August 2024. Both applications were refused on the basis that Young was unable to demonstrate exceptional circumstances to justify the grant of bail.
In support of his application for bail before this court, Young relied upon the combined weight of a number of factors said to support the existence of exceptional circumstances justifying the grant of bail. It was further suggested that any risk associated with a grant of bail could not be considered unacceptable. In both respects, Young placed particular weight upon the availability of a 16‑week residential drug rehabilitation program.
Young’s application for bail was opposed on the basis that exceptional circumstances had not been established. In any event, the prosecution submitted Young would, if granted bail, present an unacceptable risk of endangering the safety or welfare of any person (whether by committing an offence that has that effect or by any other means)[2] and failing to surrender into custody in accordance with conditions of bail.[3]
[2]Bail Act 1977 (Vic), s 4E(1)(a)(i).
[3]Ibid, s 4E(1)(a)(iv).
For the reasons that follow, bail will be granted for a fixed period under strict conditions.
B. Alleged offending
B.1 Charges dated 17 July 2024
The following account is based on the prosecution case and comprises only allegations at this stage.
On 17 July 2024, at approximately 1.53pm, Young was pulled over by police on Warrigal Road in Cheltenham after a police automatic number plate reader indicated that he was a disqualified driver.
Police detected a strong cannabis scent emitting from Young’s vehicle. Suspecting cannabis was inside, police conducted a search of the vehicle.[4] From a red bag located inside the vehicle, police seized multiple zip lock bags believed to contain cannabis. Young was then arrested.
[4]Pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 82.
Continuing their search of the red bag, police found another zip lock bag containing multiple white pills believed to contain 3,4‑Methylenedioxymethamphetamine,[5] as well as a small sheet of paper believed to contain lysergic acid diethylamide.[6] Also inside the bag were multiple empty zip lock bags. Attached to the red bag was a smaller black bag containing what was believed to be drug paraphernalia: a set of scales, a large coloured felt‑tip pen, a stapler and a small spoon.
[5]Commonly known as “MDMA” or “ecstasy”.
[6]Commonly known as “LSD”.
Police continued their search of the vehicle and located:
(1)A large serrated knife in the glove box.
(2)A large machete underneath the front passenger seat.
(3)Three large vacuum sealed bags containing what was believed to be cannabis on the rear seat of the vehicle.
(4)A large waterproof bag in the boot of the vehicle containing 3 large vacuum sealed bags filled with what was believed to be cannabis.
(5)A waterproof bag that contained a smaller zip lock bag with what was believed to be cannabis.
(6)A zip lock bag containing multiple small pink pills believed to contain 3,4‑Methylenedioxymethamphetamine.
(7)$97.70 in the centre console of the vehicle, which police suspected to be the proceeds of crime.
Young was transported to the Moorabbin police station. The vehicle Young was driving was impounded due to his licence being disqualified. The total amount of the substance believed to be cannabis was weighed at 423.81 grams. The total number of pills believed to contain 3,4‑Methylenedioxymethamphetamine were weighed at 126 grams. The small sheet of paper believed to contain lysergic acid diethylamide was weighed at 2 grams.
In relation to the multiple drugs of dependence allegedly found inside the vehicle, Young allegedly stated that he was threatened by others to transport the items to an address in Frankston, but was not willing to disclose the identities of these individuals or any other evidence in relation to this matter. He allegedly did not provide any explanation for either the knife or the machete located inside the vehicle. In relation to him driving whilst disqualified, Young allegedly stated that he was only just made aware of his community correction order.
Young was charged with:
(1)Trafficking in a drug of dependence, namely cannabis, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(2)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(3)Trafficking in a drug of dependence, namely 3,4‑Methylenedioxymethamphetamine, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(4)Possessing a drug of dependence, namely 3,4‑Methylenedioxymethamphetamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(5)Trafficking in a drug of dependence, namely lysergic acid diethylamide, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(6)Possessing a drug of dependence, namely lysergic acid diethylamide, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(7)Two charges of possessing a controlled weapon without lawful excuse, contrary to section 6(1) of the Control of Weapons Act 1990 (Vic).
(8)Driving a motor vehicle during a period of disqualification, contrary to section 30(1) of the Road Safety Act 1986 (Vic).
B.2 Outstanding charges
As noted above,[7] at the time of his arrest and remand on 17 July 2024, Young was on bail in relation to a number of outstanding charges. Each of these matters are next listed for mention along with the 17 July 2024 charges at the Moorabbin Magistrates’ Court on 13 December 2024.
[7]See par 3 above.
B.2.1 Charges dated 4 July 2024
On the afternoon of 4 July 2024, a witness reported to police that he had seen a male dressed in black clothing walking along Mundy Street in Mentone carrying a duffle bag and armed with a machete.
Police located Young at the intersection of Mundy Street and Rivoli Street in Mentone at approximately 1.33pm. Due to the information provided by the witness in relation to a machete, police informed Young that he was being detained for the purposes of a search pursuant to the Control of Weapons Act.[8]
[8]Control of Weapons Act, s 10.
Young was arrested and cautioned in relation to the machete and a separate incident involving the alleged theft of a motor vehicle.
Police subsequently commenced a search of Young’s belongings and located the following items inside the duffle bag:
(1)Five clear zip lock bags containing a white crystal substance believed to contain ketamine.
(2)A clear zip lock bag containing 5 pink tablets believed to contain 3,4‑Methylenedioxymethamphetamine.
(3)A medium zip lock bag containing what was believed to be cannabis.
(4)A large zip lock bag containing what was believed to be cannabis.
(5)A zip lock bag containing 3 capsules of brown crystal powder believed to contain 3,4‑Methylenedioxymethamphetamine.
(6)A zip lock bag containing 14 gummies believed to contain tetrahydrocannabinol.
(7)A zip lock bag containing dried mushrooms believed to be psilocybin.[9]
[9]Commonly known as “magic mushrooms”.
Young was transported to Moorabbin police station. During his interview with police, Young allegedly made full admissions to being in possession of multiple drugs of dependence. He allegedly told police he would be attending a music festival in the coming days and would be taking the drugs with him to use with his friends. Young allegedly acknowledged he had no lawful reason to be in possession of the machete, but denied using it or threatening to use it against any person.
Young was charged with:
(1)Possessing a drug of dependence, namely ketamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(2)Two charges of possessing a drug of dependence, namely 3,4‑Methylenedioxymethamphetamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(3)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(4)Possessing a drug of dependence, namely tetrahydrocannabinol jelly, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(5)Possessing a drug of dependence, namely psilocybin, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(6)Possessing a controlled weapon without lawful excuse, contrary to section 6(1) of the Control of Weapons Act.
Young was released on bail to attend the Magistrates’ Court on 6 September 2024.
B.2.2 Charges dated 29 May 2024
B.2.2.1 Alleged incident on 23 May 2024
It is alleged that on 23 May 2024, a carpenter who was working at Young’s mother’s residential address spoke to Young’s mother about Young driving without a licence. Young later arrived home between approximately 12.30pm and 1.00pm and his mother told him of the conversation.
Young allegedly became enraged and shouted “should I stab him?”. He then allegedly grabbed a large serrated stainless steel bread knife and approached the carpenter. He allegedly accused the carpenter of being a “snitch” and yelled “I’m going to stab you” and cornered the carpenter in the wardrobe area of the room the carpenter was working in. Young then allegedly postured in a crouching, aggressive manner with the knife blade pointed at the carpenter. He allegedly made a fake stabbing motion with the knife in the carpenter’s direction. The carpenter picked up a spirit level instrument to defend himself. Young then allegedly said to the carpenter “I’m going to fuck your car up and slash its tyres” and left the room.
The carpenter subsequently left the address and called police. Police arrived at approximately 2.35pm. However, Young had allegedly fled the scene and police were unable to arrest him at that time. Police allegedly found a large serrated stainless steel bread knife in Young’s bedroom on top of the bed.
B.2.2.2 Alleged incident on 29 May 2024
On 29 May 2024, at approximately 7.00am, police attended the family home for the purpose of executing search warrants,[10] including in relation to Young’s alleged offending on 23 May 2024.
[10]Pursuant to the Drugs, Poisons and Controlled Substances Act, s 81 and the Crimes Act, s 465.
Young was found by police in his bedroom with his partner. His partner was directed to exit the room and complied. Young allegedly moved from his bed towards a large knife on the floor. Police entered the room and attempted to detain him. He allegedly actively resisted, attempting to push members away and kick out. He was allegedly overpowered after a short struggle and handcuffed.
Police arrested Young and cautioned him in relation to the alleged offending on 23 May 2024.
At approximately 7.20am, police commenced a search of the home for the purpose of identifying, locating and seizing evidentiary items. The following items were seized:
(1)A black pouch containing what was believed to be cannabis located in a black handbag in Young’s bedroom.
(2)Two iPhone devices located in the bedroom.
(3)A resealable bag containing what was believed to be cannabis located in the laundry cupboard.
(4)$1,000 located in the laundry cupboard.
(5)$3,150 located in a purse in the bedroom.
(6)A resealable bag containing a pink powder located in the laundry cupboard.
(7)A large resealable bag containing what was believed to be cannabis located in the laundry cupboard.
(8)A resealable bag containing a crystal substance located in the laundry cupboard. Preliminary tests conducted at the address indicated the presence of ketamine.
An initial search of 1 of the iPhones allegedly revealed evidence that Young was engaged in drug trafficking. Young’s partner allegedly stated that the cannabis in the black handbag and the $3,150 belonged to her. An initial search of the other iPhone allegedly revealed that she was also engaged in drug trafficking. Young’s mother allegedly stated that the cannabis in the resealable bag located in the laundry cupboard belonged to her. Young’s mother was issued a cannabis caution.
With respect to the resealable bag found in the laundry, Young’s mother, Ms Sharon Heaysman, gave evidence today that she had previously uncovered the cannabis in her home and had placed it in the laundry cupboard. She said she should have disposed of it, but had not gotten around to it. Her evidence was that she does not take drugs and disapproves of her son’s use of cannabis.
At the conclusion of the search on 29 May 2024, Young and his partner were arrested and transported to the Moorabbin police station for interview.
Relevant explanations were allegedly provided by Young, including statements of admission, mitigation and remorse. For example, Young allegedly confirmed that he owned 1 of the iPhones, confirmed that it was pin protected and that it is usually in his possession, but refused to answer questions in relation to conversations of drug trafficking on his phone, stated that he rarely entered the laundry and that the $3,150 belonged to his partner.
In relation to the alleged incident on 23 May 2024, Young was charged with:
(1)Threatening to inflict serious injury, contrary to section 21 of the Crimes Act.
(2)Threatening to destroy or damage property, contrary to section 198(a) of the Crimes Act.
(3)Unlawful assault, contrary to section 23 of the Summary Offences Act 1966 (Vic).
In relation to the alleged incident on 29 May 2024, Young was charged with:
(1)Trafficking in a drug of dependence, namely cannabis, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(2)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(3)Possessing a drug of dependence, namely ketamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(4)Dealing with proceeds of crime,[11] contrary to section 194(2) of the Crimes Act.
(5)Assaulting an emergency worker on duty, contrary to section 31(1)(b) of the Crimes Act.
(6)Resisting an emergency worker on duty, contrary to section 51(2) of the Summary Offences Act.
[11]Namely, the $1,000 found in the laundry cupboard: see par 30(4) above.
Young was released on bail to attend the Magistrates’ Court on 6 September 2024 in relation to his alleged offending on 23 and 29 May 2024.
B.2.3 Summons dated 21 September 2023
It is alleged that on 15 February 2023, at approximately 6.15pm, the alleged victim observed a PlayStation 5 listed for sale on Facebook marketplace. The seller had a profile name of Thomas Smith and the item was advertised for $415.
The alleged victim initiated a conversation indicating his interest. A discussion followed in which the alleged victim agreed to pay an extra $5 in shipping, making it a total of $420. The alleged victim transferred the money from his bank account to the details provided by the seller. After the transfer, the seller allegedly immediately blocked him and sent no further messages.
Enquiries made by police with the National Australia Bank revealed that the bank account provided by the seller was in fact Young’s bank account.
Young attended the Moorabbin police station on 21 September 2023 for interview. He allegedly denied any knowledge of the offending and stated that he was unsure how his account was used.
Young was released pending summons in relation to 1 charge of obtaining property by deception, contrary to section 81(1) of the Crimes Act.
B.3 Community correction order dated 23 November 2023
Young is currently subject to a 12 month community correction order, in relation to offences committed between April and July 2023, including attempted robbery, unlawful assault, trafficking drugs of dependence and stating a false name when required.
C. Interim intervention order dated 24 May 2024 and intervention order dated 15 July 2024
Young is the respondent to an interim intervention order dated 24 May 2024 in respect to the alleged victim of the incident on 23 May 2024.[12] He is also the respondent to an intervention order dated 15 July 2024 in respect to a separate affected person.
[12]See pars 24–26 and 35 above.
D. Applicant’s personal circumstances
Young is 19 years old. He was born in the United Kingdom. His mother and father separated when he was 4 years old. He and his mother moved to Australia. He maintained regular contact with his father, who remained in the United Kingdom until his father’s death in tragic circumstances in 2021. Young was also very close with an aunt who died of cancer in or around 2019.
Prior to being remanded, Young lived with his mother, though was frequently out of the house for days at a time moving among associates.
Young has a partner of approximately 10 months. She is a co‑accused in relation to the alleged offending on 29 May 2024.[13] Under previous conditions of bail, he was prohibited from having any contact with her.
[13]See pars 27–34 and 36 above.
Young has reported being diagnosed with oppositional defiant disorder as a child. He has also reported feeling alienated, directionless and that he associated with anti‑social and drug‑using groups as a teenager.
Young has reported that at age 14 he suffered from a cannabis induced psychotic episode. He has also reported that he experienced suicidal ideations at the time and was unable to attend school for approximately a year. He was referred to a psychiatrist and was diagnosed with depersonalisation disorder.
Young was subsequently placed in a boarding school in Albury and completed year 9. He abstained from using cannabis during this time. However, after 1 year, he returned to his mother’s home and started using cannabis again, citing feelings of hopelessness and boredom. He has reported that this has been detrimental to his mental health.
Young did not return to school. He has since worked in a variety of fast‑food restaurants, in a supermarket and at a factory. However, he has been unable to maintain steady employment in recent years. He commenced an apprenticeship at a TAFE[14] college, but failed to finish this when his father died. Prior to being remanded, he had commenced an online real estate course, which he plans to return to when released from custody.
[14]That is, Technical and Further Education.
Young’s prior criminal history, commencing in 2021 when he was still a child, includes drug trafficking and possession, as well as possession of controlled weapon offences. He has also been the respondent to 2 prior family violence intervention orders, each in respect of his mother as the affected family member.
E. Proposed conditions of bail
In support of his application for bail, Young proposed the following conditions, namely that he would:
(1)Participate in a youth drug residential rehabilitation program for a period of 16 weeks or as directed by the facility.
(2)Reside at the premises of the youth drug residential rehabilitation program.
(3)Upon release from the program, reside with his mother at [residential address].
(4)Re‑engage with his psychologist.[15]
(5)Comply with any active intervention order.
(6)Not drive a motor vehicle.
(7)Not leave Victoria.
(8)Appear for his listed matters in the Magistrates’ Court at Moorabbin on 13 December 2024 via audiovisual link.
[15]Prior to being remanded, Young reported being in the care of a particular psychologist. He estimated having attended 2 sessions with the psychologist. He intends to return to the psychologist’s care if released on bail.
His mother has offered a bail guarantee in the amount of $2,000.
It was also submitted that Young could re‑engage with the conditions of his community correction order. As part of that order, Young was required to, among other things, undertake drug screenings, mental health and addiction treatment and offending behaviour programs.
F. Legal principles
Included amongst the charges dated 17 July 2024 are offences listed under Schedule 2 of the Bail Act 1977 (Vic).[16] As Young was both on bail for a Schedule 2 offence, as well as serving a community correction order for Schedule 2 offences at the time of his alleged offending on 17 July 2024,[17] it was common ground between the parties that he must demonstrate the existence of exceptional circumstances justifying the grant of bail.[18]
[16]Bail Act, sch 2, item 24(b).
[17]Ibid.
[18]Ibid, ss 4AA(2)(c)(i), (iv), 4A.
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances must be such as to take the case out of the ordinary or norm.[19] Although the threshold is high, it is not an impossible standard to reach. Exceptional circumstances may be established by a combination of matters, even when none of the individual circumstances relied upon is considered exceptional in and of itself.[20]
[19]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[20]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that has that effect or by any other means, interfering with a witness or otherwise obstructing the course of justice, or failing to surrender into custody in accordance with their bail undertaking.[21] The court must refuse bail if satisfied that there is an unacceptable risk of this kind, notwithstanding that the exceptional circumstances test has been met.[22] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[23]
[21]Bail Act, ss 4D(a), 4E(1).
[22]Ibid, s 4E(1).
[23]Ibid, s 4E(2).
In assessing whether a risk of the kind contemplated under section 4E(1) of the Bail Act is an unacceptable risk, the court must consider whether the risk may be mitigated by any conditions of bail.[24] Section 5AAA(1) requires the court, when considering the release of an applicant on bail, to impose any conditions it considers will reduce any risk to an acceptable level. A non‑exhaustive list of possible conditions is outlined under section 5AAA(4), which relevantly includes attendance upon and participation in a bail support service.[25]
[24]Ibid, s 4E(3)(b).
[25]Ibid, s 5AAA(4)(g). A “bail support service” is defined in s 3 as including, relevantly, treatment services for substance abuse or other behaviour which may lead to commission of offences.
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[26] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1):
[26]Ibid, ss 4A(3), 4E(3)(a).
…
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
…
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including—
…
(iii)experiencing any ill health, including mental illness; or
…
(i) the availability of treatment or bail support services;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
More broadly, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.[27]
G. Submissions
[27]Re Ceylan [2018] VSC 361, [31]–[32] (Beach JA).
G.1 Young’s submissions
On behalf of Young, it was submitted that exceptional circumstances justifying a grant of bail could be established by the combined weight of several factors, including that:
(1)Present circumstances could be distinguished from those that existed when he was previously refused bail due to the availability of a 16‑week residential drug rehabilitation program.[28] It was submitted that his drug dependency likely contributed to his alleged offending and the program could specifically address this issue.
(2)He is a vulnerable person, including by reason of his oppositional defiant disorder and depersonalisation disorder.[29]
(3)He has stable accommodation available to him at his mother’s address, and Ms Heaysman is willing to continue to support him. Ms Heaysman has stated that she will ensure he does not drive, and if she is absent from her home, will keep the keys to her car hidden from him. While she has also stated she will find it very difficult to report him to police if he does not comply with his bail conditions, she will not hesitate to do so. She also gave an undertaking to the court that she would not knowingly have, or allow, drugs to be within her home.
(4)He is a strong candidate to serve his sentence in the community via the Assessment and Referral Court, as he is likely to meet relevant eligibility criteria for a drug and alcohol treatment order. It was submitted this would ultimately reduce the likelihood of him serving any term of imprisonment if found guilty of the charges.[30]
(5)This is the first time he has been in custody in an adult prison. It is highly likely that this has had a salutary effect and has changed his attitude towards the need for rehabilitation.
(6)It was conceded on Young’s behalf that the alleged offending is serious. That said, he has indicated that he intends to contest the 3 trafficking charges dated 17 July 2024.
(7)In any event, having already spent 103 days in custody (as at the date of the hearing), it was submitted that in light of the above matters when combined with his young age, there was every prospect Young would spend more time in custody than the length of any sentence which might be imposed.
[28]Bail Act, s 3AAA(1)(i).
[29]Ibid, s 3AAA(1)(h) and 3AAAA.
[30]Ibid, s 3AAA(1)(aa).
It was also submitted that it would be possible to sufficiently mitigate any risk associated with a grant of bail by the imposition of appropriate conditions of bail.
G.2 Prosecution submissions
In turn, the prosecution submitted that Young had failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances. In this regard, reference was made to:
(1)The nature and seriousness of the alleged offending.[31] It was submitted that drug trafficking and possession offences are inherently serious. The weight of the 3,4‑Methylenedioxymethamphetamine located in the form of pills was 126 grams. The prima facie trafficking quantity weight is 3 grams, and the commercial quantity is 100 grams. The fact that weight was significantly more than the prima facie trafficking quantity is very concerning. It was also submitted that driving whilst disqualified is a serious offence as it endangers the safety and wellbeing of other road users.
(2)The offending on 17 July 2024 being aggravated by the fact that it was allegedly committed whilst Young was on bail for similar alleged offending and during the operational period of a community correction order for similar offending.[32] It was submitted that this was indicative of Young’s lack of regard for the opportunity of being placed on bail.
(3)The strength of the prosecution case.[33] It was submitted that there is a complete sufficiency of evidence in relation to the matters alleged against Young. It was submitted the case against him can reasonably be described as “robust”.
(4)The likelihood of a sentence of imprisonment being imposed.[34] It was submitted that Young is highly likely to receive a lengthy term of imprisonment should he be found guilty, given the seriousness of the charges, his relevant criminal history, and the fact that he will lose any sentencing discount if the charges are proven at the completion of a contested hearing. It was further submitted that as the matter is contested, the Assessment and Referral Court and any drug and alcohol treatment order would not be available to Young as they are only available to participants if their matters have resolved.
(5)Young’s prior criminal history.[35] It was submitted that, at 19 years of age, he has accumulated a large number of prior matters, which are akin in type and relevant to the current allegations. He has prior matters for dishonesty, drug and weapon offences and contravention of court orders. The bulk of the matters are from the children’s jurisdiction, however the matters have been accrued within the last 3 years.
(6)Young’s compliance with the conditions of his community correction order falling well short of the requisite standard. It was submitted that the contents of a judicial monitoring report dated 24 June 2024 demonstrate that he has failed to attend scheduled appointments and urinalysis on a number of occasions, that he lacked insight into his drug dependency issues and his offending, and that he had exhibited a very nonchalant and disinterested attitude toward the order and its conditions. Accordingly, it was submitted that placing him on further treatment plans would be setting him up for failure.
(7)The risks associated with Young continuing to live with his mother in the context of his history of family violence, substance abuse and alleged involvement in drug trafficking activities at that location.[36]
(8)The lack of medical evidence supporting the assertion that Young was diagnosed with oppositional defiant disorder as a child, other than him self‑reporting it to a psychologist.
(9)The other matters raised by Young not, either alone or in combination, rising to the threshold of establishing exceptional circumstances.
[31]Ibid, s 3AAA(1)(a).
[32]Ibid, s 3AAA(1)(d) and (e)(i), (ii), (v).
[33]Ibid, s 3AAA(1)(b).
[34]Ibid, s 3AAA(1)(aa), (k) and (l).
[35]Ibid, s 3AAA(1)(c).
[36]Ibid, s 3AAA(1)(g).
The prosecution accepted that Young had both a drug residential rehabilitation program and other supports under his community correction order available to him upon release from custody and that this was relevant to the question of whether exceptional circumstances existed. It was further acknowledged that his youthful age weighed in favour of exceptional circumstances being established.
However, even if the court were satisfied exceptional circumstances had been established, it was submitted that Young presented an unacceptable risk of endangering the safety or welfare of others, including by committing offences while on bail[37] because, among other things:
(1)There is a high risk that Young’s substance abuse issues would drive him to commit further indictable offences while on bail in order to fuel his addiction.
(2)There is a high likelihood of drugs of dependence being readily accessible at his residential address, not only because of the alleged offences he has committed at that address, but also by virtue of the alleged admissions made by his mother in relation to possessing cannabis.
(3)He has a demonstrated propensity for family violence and often at or around his residential address.
(4)He has frequently driven while under the influence of illicit substances and has driven while his licence has been disqualified. It was submitted that he would not abide by any condition prohibiting him driving a motor vehicle, which would place him and members of the general community at risk of death or serious injury.
(5)The proposed conditions of bail would not mitigate the risk, as he has disregarded the opportunity afforded to him previously by conditions of bail and the conditions of his community correction order.
[37]Ibid, s 4E(1)(a)(i).
It was also submitted that Young presented an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.[38] The prosecution referred to Young being subject various processes issued by the Magistrates’ Court on 1 May 2024 in support of a submission that he had been difficult to locate in the past. On 29 May 2024, when police seized Young’s mobile phone, it is alleged that police discovered text messages which showed that Young was aware he had outstanding matters with police and that he was actively avoiding apprehension.
H. Consideration
[38]Ibid, s 4E(1)(a)(iv).
H.1 Exceptional circumstances
In my view, exceptional circumstances have been established. Although no specific factor alone gives rise to this conclusion, when the circumstances of this case are viewed in combination, this threshold has been met.
A number of matters loom large. Young’s youthful age, his serious issues with illicit substances from an early age and the availability of a full‑time residential drug rehabilitation program are important matters. The fact that Young has been able to secure a place at an appropriate facility away from his usual place of residence and at a regional location provides him with a perfect opportunity to address serious long‑term issues which have undoubtedly been connected with his criminal conduct.
Evidence was adduced of the program to which Young will be subjected if bail is granted. That program involves 3 months of residential treatment, followed by a further month by which it is intended that Young will transition back into the community. Although the facility is not secured in the sense that Young would not be physically prevented from leaving the premises if he chose to do so, his whereabouts are carefully monitored both during the day and the night by staff who are in attendance 24 hours each day. Further, an undertaking has been given that if Young either departs or expresses an intention to depart from the facility, the local police, the informant and Young’s emergency contact will all be immediately contacted.
Significantly, the rehabilitation centre also has counsellors to address Young’s underlying mental health issues. The prosecution correctly pointed out that there was no primary medical evidence of the diagnoses of his conditions and the evidence was merely based upon what had been reported by Young. However, the evidence more generally demonstrates that there are likely to be underlying issues in addition to substance abuse which have also contributed to the circumstances in which Young now finds himself.
I accept the evidence that Young has shown a lack of insight and commitment with respect to the treatment he clearly needs. However, it has been demonstrated today that it would appear his attitude has changed in this regard, no doubt in part because of his recent period in adult prison for over 100 days.
The prosecution’s concerns about Young residing at his mother’s home upon completion of his rehabilitation program because of his mother’s activities were largely misplaced. Ms Heaysman was an impressive witness who made her abhorrence of illicit drugs very clear. She is a retired school teacher and gave evidence of her strong desire for Young to participate in the rehabilitation program, which she considered a matter of necessity. In my view, the evidence demonstrated that Young has available to him stable accommodation both at the rehabilitation centre and also subsequently at his mother’s home.
H.2 Unacceptable risk
For the reasons set out above in relation to exceptional circumstances, coupled with appropriate conditions that Young has agreed to, the prosecution has failed to establish that granting Young bail gives rise to a risk which is unacceptable. While Young remains the subject of the rehabilitation program, he will be the subject of extensive care and careful monitoring. Although there remains a risk that Young may abscond, the incentives for him not to do so are manifest. Further, if he were to do so it is clear that the informant and the authorities more generally would be promptly made aware of the situation.
However, in order to reduce the risk to an acceptable level, bail will only be granted for the period that Young is subject to the residential program. Although it may be anticipated, if he complies with his conditions of bail, that bail will be extended after the residential program has been completed, it is appropriate for the court to consider whether bail should continue at the end of the program.
Accordingly, the conditions will include that bail will only be granted on and from 31 October 2024 until 19 February 2025.[39] Young will be required to attend at 10.00am on 19 February 2025 before this court so the risk of Young’s bail continuing may again be assessed based on the facts then pertaining to the further application.
[39]Bail will be granted from tomorrow and will not be granted today. Arrangements have been made for the responsible staff member of the residential program to collect Young tomorrow directly from a prison located closer to the facility than the prison at which he is presently located. It is envisaged Young will be transported to the regional prison tomorrow so that this may occur.
Conclusion
For the reasons outlined above, I am satisfied of the existence of exceptional circumstances justifying a grant of bail. Further, the prosecution has failed to establish that, with the appropriate conditions of bail put in place, Young would present an unacceptable risk.
Accordingly, orders will be made granting Young bail subject to the below conditions:
The applicant is admitted to bail on and from 31 October 2024 on his own undertaking and with a bail guarantee from Sharon Heaysman in the amount of $2,000 on the following conditions, namely that he must:
(1)Reside at the premises of Uniting Victoria and Tasmania located at [address] (“the Residence”) and participate in the Gippsland Youth Residential Rehabilitation Program for a period of approximately 16 weeks until 10.00am on 19 February 2025, or as directed by Uniting Victoria and Tasmania.
(2)Comply with all lawful directions of Uniting Victoria and Tasmania.
(3)Not leave the Residence unless:
(a)in the company of an authorised employee of Uniting Victoria and Tasmania; or
(b)in the company of an authorised employee of Uniting Victoria and Tasmania or his legal representatives, or both, for the sole purpose of attending court hearings in respect to proceedings to which he is a party; or
(c)in the last 4 weeks of the program, as part of the transition process and strictly subject to the terms and conditions imposed by the responsible officer or officers at Uniting Victoria and Tasmania.
(4)Subject to paragraph (3)(c) above, not change his place of residence without leave of the court.
(5)Subject to paragraph 3 above, present at the front door of the Residence upon the reasonable request of the informant or his nominee, being an authorised member of Victoria Police.
(6)Undergo supervised drug screens at the Residence twice per week and (unless directed otherwise by directions of Uniting Victoria and Tasmania) no less than 72 hours apart.
(7)Comply with the conditions of the community correction order made on 23 November 2023 in the Magistrates’ Court of Victoria at Moorabbin, until the expiry of that order.
(8)Comply with all lawful directions of the Moorabbin Community Corrections Service.
(9)Comply with the conditions of any active intervention orders in respect of which he is the named respondent.
(10)Not drive a motor vehicle.
(11)Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), without lawful authorisation under that Act.
(12)Not leave the State of Victoria.
(13)Not attend any port, airport or international point of departure.
(14)Not contact or associate with, either directly or indirectly, his co‑accused, namely Ebony Phelps.
(15)Not contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant.
(16)Subject to compliance with paragraph (3)(b) and (c) above, attend the Magistrates’ Court of Victoria at Moorabbin on 13 December 2024, and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
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