Re ZP
[2022] VSC 585
•11 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0170
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of ZOE PAIS |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2022 |
DATE OF JUDGMENT: | 11 July 2022 |
CASE MAY BE CITED AS: | Re ZP |
MEDIUM NEUTRAL CITATION: | [2022] VSC 585 |
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CRIMINAL LAW – Application for Bail – Exceptional circumstances – Applicant charged with burglary and handling stolen goods – Limited criminal history – Special vulnerability and mental health – Onerous conditions in custody and COVID-19 – Unacceptable risk – Risk not unacceptable with conditions – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Richter | JDA Criminal Lawyers |
| For the Respondent | Mr N Moran | Victoria Police |
HIS HONOUR:
By application filed 28 June 2022, Zoe Pais (‘the applicant’) seeks bail in this Court on the following two charges brought by Senior Constable Shana Famularo on 21 June 2022, relating to events alleged to have occurred between 22 April and 31 May 2022:
(a)handling stolen goods; and
(b)burglary.
The applicant has been in custody since she was arrested on 20 June 2022. She was refused bail in the Sunshine Magistrates’ Court on 21 June 2022 on the basis that she had not demonstrated exceptional circumstances.
The matter is next listed in the Sunshine Magistrates’ Court on 4 August 2022 for contest mention.
Co-accused
There is one co-accused in this matter, Jurica Dragic. He was arrested at the same time as the applicant on 20 June 2022, and formally remanded two days later on 22 June 2022, after being charged with the following offences:
(a)burglary (six charges);
(b)theft (seven charges);
(c)committing an indictable offence whilst on bail (six charges);
(d)receiving stolen goods (six charges);
(e)driving whilst disqualified;
(f)possessing methylamphetamine; and
(g)dealing in property believed to be the proceeds of crime.
The co-accused has an extensive criminal history, with numerous relevant prior convictions. He has not made any application for bail in the matter, which is next listed for a plea of guilty on 12 July 2022 in Sunshine Magistrates’ Court.
Outstanding matters
At the time of the alleged offending, the applicant was serving a community correction order (‘CCO’).
The CCO was initially imposed on 3 August 2020, after the applicant was convicted in the Frankston Magistrates’ Court of the following offences:
(a)theft (three charges);
(b)attempting to commit an indictable offence;
(c)recklessly causing injury;
(d)learner driver drive without an experienced driver;
(e)burglary (two charges);
(f)intentionally destroying property;
(g)theft from a shop (two charges);
(h)failing to answer bail; and
(i)theft of a motor vehicle (five charges).
The CCO was imposed for a period of 20 months, and included conditions that the applicant be supervised by the Secretary, complete 200 hours of unpaid community work, undergo drug and mental health assessment and treatment as directed, participate in offending behaviour programs as directed, and submit to judicial monitoring.
On 4 February 2022, the CCO was varied to remove the community work and judicial monitoring conditions, and extended to an aggregate period of 24 months.
The CCO expires on 2 August 2022.
The alleged offending
The applicant and co-accused were in a relationship and residing together at the time of the alleged offending.
Charge 1 – Handling stolen goods
At 2:50am on 22 April 2022, the co-accused entered a Harvey Norman store in Taylors Lakes through its roof, attempted to open an electronics cage, and left with a $800 Dyson Cinetic Big Ball vacuum cleaner, which is captured on CCTV.
The following day, on 23 April 2022, it is alleged that the applicant listed and sold a Dyson Cinetic Big Ball vacuum on Facebook marketplace under the Facebook profile ‘Zoe Terese PAIS’.
At 1:10am on 28 April 2022, the co-accused returned and re-entered the Taylors Lakes store through a hole in the roof and stole six Microsoft Surface laptops, valued at approximately $2,392.00 in total.
Security staff observed a person inside the store on CCTV and contacted police and the store manager, who arrived shortly after and observed the hole in the roof. CCTV inside the store depicts the co-accused trying to cut a lock to an electronics cage using a handheld angle grinder, before climbing on top of the cage, making a small hole in the wiring, reaching through and removing various boxes, placing them in his bag, and leaving.
The following day, on 29 April 2022, it is alleged that the applicant listed a Microsoft Surface laptop in its original box for sale on Facebook marketplace, using the same account as was used on 23 April 2022.
Charge 2 – Burglary
At 1:10am on 31 May 2022, the co-accused was captured on CCTV entering a Harvey Norman store in Chirnside Park through its roof, and then using a handheld angle grinder to cut through the wiring of an electronics cage, loading various electronics into a tub, and leaving. It is alleged 50 mobile phones were taken, in total valued at approximately $52,224.03.
At 1:18pm police attended the store after receiving a report about a break-in. They observed and stopped a grey Ford Territory being driven away from the store, identifying the applicant as the driver and sole occupant. Police determined that the registration plates on the car were false and searched the car, locating various tools, sets of Airbnb keys and items belonging to the co-accused, including his phone, passport, wallet, a bank card and police charges in his name.
Police suspected the tools and keys to be stolen, and arrested the applicant and seized the co-accused’s phone. The applicant was conveyed to Lilydale Police Station and released without charge.
Investigation and arrest
A further search of the Ford Territory located three used angle grinder plates and other items.
The following activity was identified on the co-accused’s phone from on or around the time of the aforementioned alleged offending:
(a)Google searches for Harvey Norman, Dyson Cinetic Big Ball Vacuum and Surface Go 3 laptops and tablets;
(b)a Google Maps search for directions to the Harvey Norman store in Taylors Lakes; and
(c)a screenshot of the address of the Harvey Norman store in Chirnside.
On 20 June 2022, police attended the applicant’s and the co-accused’s home in Carlton and arrested them both. Police searched their address and car, and seized various items including multiple electronic devices, a box of Samsung Galaxy S22 phones, an angle grinder and bolt cutters.[1]
[1]Other items, including drugs of dependence, were seized from Dragic’s possession. The applicant is not charged in relation to these matters.
The applicant and the co-accused were conveyed to Sunshine Police Station. The applicant made a partial no-comment interview and denied any involvement in the alleged offending.
On 21 June 2022 the applicant was charged and remanded in custody.
Evidence on the application
This application is supported by the Affidavit of Bridie O’Malley, solicitor, dated 28 June 2022, attaching a series of exhibits. Separately, the applicant filed a series of supplementary documents including a report prepared by Forensicare dated 5 July 2022.
In response, the Respondent filed an affidavit sworn by Nathan Watt dated 6 July 2022, attaching a number of exhibits.
At the hearing of the application, the applicant called evidence from the applicant’s mother, Bridget Raeburn. It is proposed that the applicant reside with Ms Raeburn should bail be granted. Ms Raeburn confirmed she is aware that if granted bail her daughter would be required to adhere to a series of conditions, and provided an undertaking to the Court to notify the informant if she became aware of any breach of bail.
The applicable legislation
The parties submit that the applicant is subject to the exceptional circumstances test on the basis that she is said to be accused of committing a Schedule 2 offence (‘the first Schedule 2 offence’) during the period of a CCO for another Schedule 2 offence (‘the second Schedule 2 offence’).[2]
[2]The Act, s 4AA(2)(c)(iv).
The first Schedule 2 offence is said to be that the applicant is accused of committing an indictable offence in the informant Famularo matter (here, for example, handling stolen goods), during the period of a CCO made in respect of the applicant for another indictable offence (here, for example, theft).[3]
[3]Ibid, sch 2, item 1(d).
The second Schedule 2 offence is said to be the offence of failing to answer bail,[4] which the applicant was serving a CCO for at the time she is alleged to have committed the first Schedule 2 offence.[5]
[4]Ibid, sch 2, item 30.
[5]Relevantly, this is the same CCO relied on to uplift the indictable offences to Schedule 2 offences for the purposes of satisfying the criteria for the first Schedule 2 offence.
In this way, the parties rely on the same conduct – namely, alleged further offending during the period of a CCO – to uplift the charges at both stages of the analysis, resulting in a “double uplift”.
Proceeding on the basis that the exceptional circumstances test applies, bail must still be refused if – notwithstanding the Court is satisfied that exceptional circumstances exist that justify the grant of bail – the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[6] In considering this, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[6]Ibid, s 4E(1)-(2).
[7]Ibid, s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.
The applicant’s personal circumstances
The applicant is a 24 year old woman with a history of complex mental health issues and substance abuse. She is presently unemployed and receives the disability support pension due to the extent of her mental health conditions. At the time of the alleged offending, she was residing in Carlton with the co-accused.
Criminal history
The applicant has a limited but relevant criminal history, comprising only of the offending for which she is currently subject to the CCO, as outlined above.
The applicant’s submissions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
The applicant submits that there is little evidence at this stage to support the allegation that she has handled stolen goods. In relation to the charge of burglary, while the applicant was located in the vicinity of the burglary, it is noted that she was not located with the co-accused or any of the stolen items at that time, and noted further that it is not alleged that she entered the store where the items were stolen. It is submitted that there is currently no evidence to support any claim that the applicant actively assisted the offending in any way.
Criminal history
The applicant submits her criminal history is very limited, in that it consists only of two court outcomes, in 2020 and 2022, relating to the imposition and variation of a CCO for the same offending. The applicant’s current remand is her first time in custody.
Bail compliance history
The applicant concedes that she has a single prior offence for failing to answer bail.
Family support and stable accommodation
If granted bail, the applicant proposes to reside with her mother, Bridget Raeburn, and step-father, Damian Raeburn, at [redacted]. Alternatively, in the short-term, the apartment shared by the applicant and the co-accused at the time of the alleged offending, being [redacted], remains available to the applicant until 17 July 2022.
Special vulnerability
The applicant reports a history of poor mental health, including previous diagnoses of borderline personality disorder, anxiety, depression, and post-traumatic stress disorder.
In response to further information sought by the Court, the applicant’s solicitor filed a letter dated 8 December 2021 from consultant psychiatrist Dr Porpavai Kasiannan, who describes the applicant as a person with enduring mental health issues which significantly impact on her ability to function day to day. Dr Kasiannan states that the applicant has diagnoses of borderline personality disorder, intimate partner violence, complex trauma and psychotic episode, and notes that the applicant has been subject to a community treatment order previously, and admitted to hospital on a number of occasions for concerns in relation to her mental health.
In addition to the letter of Dr Kasiannan, the applicant relies on a report dated 5 July 2022 from Forensicare’s mental health advice and response service. The letter briefly sets out the applicant’s history of registration with various medical services, mental health admissions, periods of involuntary treatment, and diagnoses – citing acute and transient psychiatric disorder, schizophrenia, “emotion unstable person” with borderline traits, unspecified nonorganic psychosis, and mental and behavioural disturbance due to cannabis use. The report states that there are no current treatment details available to the writer, and notes that the applicant’s last contact with Ballarat Health was on 9 February 2022.
Availability of treatment or bail support services
As noted, the applicant is currently serving a CCO, which is due to expire on 2 August 2022. In an email dated 24 June 2022, the applicant’s case manager on the CCO, Mick Tranter, indicated that the applicant had engaged positively with supervision under the CCO, had completed an offending behaviour program, and had completed alcohol and other drug treatment through Caraniche (a service that provides psychological and behavioural health care). Mr Tranter confirmed that, if the applicant is granted bail, there would be no difficulty with her continuing on the CCO. The applicant’s current obligations under the CCO require her to participate in supervision appointments every three weeks.
In terms of other supports, the applicant reports that she was advised by Caraniche that she could re-engage with the service again in the future if required.
Delay and likely sentence
The applicant has been in custody since the date of her arrest on 20 June 2022. She submits that it is likely the time she spends on remand will exceed any sentence imposed, with reference to the fact that the charges are disputed, she has a limited criminal history, and has not previously been sentenced to a term imprisonment.
COVID-19 and onerous conditions in custody
The applicant notes that persons in custody are subject to restrictions that have been imposed due to COVID-19, including sporadic lockdowns, suspension of personal visits, and limited access to courses, rehabilitative programs, and employment, which makes time on remand more onerous. As at 28 June 2022, the applicant had been in mandatory isolation since 21 June 2022.
Unacceptable risk
The applicant submits that she has ties to the jurisdiction and is not a flight risk, and that any risk asserted by the prosecution can be addressed through stringent bail conditions (noting that the applicant has only ever been subject to bail with a residential condition), stable accommodation, separation from the co-accused, and ongoing supervision available to the applicant under the CCO.[8]
[8]This order is due to expire on 2 August 2022.
The respondent’s contentions
The respondent submits it is open to the Court to find that exceptional circumstances exist that justify the grant of bail, in consideration of the strength of the prosecution case, delay to finalisation, time on remand likely exceeding any sentence to be imposed, and suitability of the proposed bail address and conditions.
The informant submits that the applicant poses an unacceptable risk of committing an offence on bail, but concedes that the imposition of the bail conditions proposed by the applicant would mitigate this asserted risk to an acceptable level.
It is the respondent’s position that, if the Court is satisfied that the applicant has established exceptional circumstances that justify the grant of bail, bail will not be opposed provided the bail conditions proposed by the applicant are imposed.
Analysis and conclusions
Exceptional circumstances
The applicant relies on a combination of circumstances to satisfy the exceptional circumstances test.
Turning first to the strength of the prosecution case, it is clear that both the cases against the applicant are put on a circumstantial basis. It appears that there is no particularly direct evidence alleged against the applicant, so the prosecution will rely on a combination of circumstantial pieces of evidence to complete what was described as the picture or the jigsaw. I note that there is no brief yet, and the applicant concedes that there is a prospect at least that the case might get stronger when time passes and the brief is served and the investigations are complete, but there again, it may get weaker.
On my assessment – that is, the limited assessment that is able to be made at this stage – there is not enough known to say that it is a strong case, nor is there enough to be able to say that it is inherently weak.
That then leads me to the delay and likely sentence to be imposed. The applicant has been in custody since her arrest on 20 June 2022. There is a contest mention listed for 4 August 2022 which may yet involve further delay before these charges are finally resolved. The applicant submits that it might be a period of another nine to 12 months before this case can reach resolution, while the respondent submits that it may be closer to six to nine months. At this stage, it is difficult to predict how long the delay will be, however it seems clear that there will be a delay after the matter has proceeded to contest mention.
The applicant submits that it is likely that the time she will spend on remand will exceed any sentence imposed with reference to the fact that the charges are disputed, she has a limited criminal history and has not previously been sentenced to a term of imprisonment. I broadly agree with the submission that is being put.
In my opinion, on the basis of what I understand the case to be and how it is likely to be put, it will be open for a Magistrate to pass a further Community Corrections Order if the applicant is convicted of the burglary offence and handling stolen goods.
It is by no means likely that she will receive a custodial sentence. It seems to me that the alleged offending falls at the lower end of the scale in terms of seriousness, and the applicant appears to have some significant mitigating factors including her health, and her young age.
I have taken into account that the applicant has a limited criminal history, including only two court outcomes, relating to the imposition of the CCO and the variation of it for the same offending. The applicant’s current remand period is her first time in custody, and this contributes to my earlier conclusion that she may not be required to serve a custodial sentence if found guilty of the offending with which she is charged.
I take into account that it is conceded she has a single prior offence for failing to answer bail, and of course that is of some significance. If granted bail, she proposes to reside with her mother, Bridget Raeburn, and stepfather in an address in Ballarat. I consider that this is a very significant factor in favour of the grant of bail.
As noted, the applicant is currently serving a CCO which is due to expire on 4 August. The case manager is of the opinion that the applicant has engaged positively with the supervision under the CCO, has completed various programs, and I am told that if she is granted bail, she will continue to be subject to the CCO for the remainder of its duration. She is obliged to participate in supervision appointments in respect of this and I anticipate this should happen over the course of the next few weeks.
The question of the CISP assessment was raised during the course of argument this morning, but as pointed out, it is difficult to determine in the current circumstances how that would actually play out. It seems to me that that is a matter that can be attended to by the magistrate that deals with this matter in contest mention in early August. Accordingly, I will not say anything further about a CISP assessment but leave that to others to determine later on.
In terms of special vulnerability and conditions in custody, I might remark that it is a sad circumstance to see a young 24-year-old woman having found herself experiencing her first period in custody, particularly noting her history of poor mental health, including an established diagnosis of borderline personality disorder, anxiety, depression and post-traumatic stress disorder. In light of the COVID-19 pandemic, the applicant has been subject to particularly onerous conditions in custody, including being placed in mandatory isolation for a period of time on her remand. I am conscious, given her age and diagnosed mental health concerns, that would find continued remand custody to be especially onerous.
She submits that she has ties to the jurisdiction, and is not a flight risk, and that any risk can be assessed and addressed through stringent bail conditions, stable accommodation, separation from the co-offender, and ongoing supervision, available under the CCO.
In considering whether the above circumstances in combination satisfy the exceptional circumstances test, I have taken into account the surrounding circumstances, as I am required to do.
Considering all of those circumstances, I am satisfied that exceptional circumstances exist which justify the grant of bail.
Unacceptable risk
Having found that the exceptional circumstances test has been met by the applicant, that is not the end of the matter, as the Court is obliged to move to consider the question of unacceptable risk. In this regard I have noted the attitude of the respondent, leaving open the possibility that suitable conditions may mitigate that risk to an acceptable level.
Many of the factors discussed above in respect of the exceptional circumstances test apply to an assessment of the level of risk involved.
The relevant question for this court is not whether risk can be eliminated, but rather whether it can be reduced to a level such that risk becomes an acceptable one. In my opinion, taking into account all the circumstances, the risk can be reduced to an acceptable level by the use of appropriate conditions.
Accordingly, I make the order that the applicant be admitted to bail on her own undertaking and with the following special conditions
(a)She reside at [redacted] (‘place of residence’) and notify the Informant within 24 hours of any proposed change of address;
(b)She remain at the place of residence between the hours of 10:00pm and 6:00am each day for the duration of bail unless in the course of employment;
(c)She present herself at the front door of the place of residence during those curfew hours if and when called upon by a member of Victoria Police to do so;
(d)She not use alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act;
(e)She contact Ballarat Corrections within two business days of her release to reengage with the order and comply with all conditions imposed under the community corrections order made on 4 February 2022;
(f)She not contact, directly or indirectly, any witness for the prosecution, except the informant or his or her nominee;
(g)She not contact or communicate with, directly or indirectly, the co-accused Mr Jurica Dragic; and
(h)She not leave the State of Victoria.
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