Applicant v Respondent

1 Harley Lawn ['the applicant'] is a 25 year old Aboriginal man who has a diagnosis of autism spectrum disorder ['ASD'] and is in custody for the first time.

2 He seeks bail in the following matters brought by Senior Constable Alex Flight:

Alleged offending 7 June 2023; arrested, charged and remanded in custody same date

(a) persistently contravening a family violence intervention order ['FVIO'];

(b) using a carriage service to harass;

(c) making a threat to damage property;

(d) recklessly causing injury;

(e) contravening an FVIO (three charges);

(f) unlawful assault of a female;

(g) unlawful assault;

(h) throwing a missile to injure;

(i) committing an indictable offence whilst on bail (four charges);

(j) harassing a witness; and

(k) interfering with a motor vehicle without just cause or excuse.

3 The applicant is subject to bail in the following two outstanding matters:

Alleged offending between 10 November and 12 December 2022, charged 12 December 2022

(a) contravening an FVIO (six charges); and

(b) persistently contravening an FVIO (two charges).

Alleged offending 10 August 2022, charged 7 November 2022

4 In March 2022 the applicant and CH ['the complainant'] commenced an intimate relationship. In April 2022 they commenced living together in a share house. In July 2022 the applicant and the complainant ended their relationship but continued to rent a bedroom together.

5 On 27 July 2022 the applicant was arrested and charged by informant Abdulrahman in relation to violent offending he committed against the complainant and her male friend, LA, the same day.[1]

6 On 2 August 2022, an interim FVIO protecting the complainant was served on the applicant. The FVIO was made in the Heidelberg Magistrates' Court on an unknown date and included full no-contact conditions. The FVIO was not provided to the court.

7 On 10 August 2022, the applicant allegedly committed an unlawful assault against another male friend of the complainant. He was released pending summons, and subsequently charged by informant Lindeman in relation to this matter on 7 November 2022.

8 On 17 August 2022, a final personal safety intervention order with full no‑contact conditions was made in the Heidelberg Magistrates' Court protecting LA. That order expires on 16 August 2023.

9 Between 10 November and 12 December 2022, the applicant allegedly contravened an FVIO protecting the complainant by sending her text messages. He was charged by informant Marsh in relation to this matter on 12 December 2022.

10 On 23 February 2023, the applicant was sentenced by the Heidelberg Magistrates' Court to a 12-month community correction order ['CCO'], without conviction, in relation to a consolidated plea which included the violent offending committed against the complainant and LA on 27 July 2022.

11 On the same day, 23 February 2023, a final FVIO was made in the Heidelberg Magistrates' Court protecting the complainant. This FVIO varied the previous order made protecting the complainant, and included limited conditions, specifically, that the applicant not commit family violence against the complainant, damage or destroy her property, or get any person to do any of those things on his behalf. This FVIO was not provided to the court.

12 On 3 March 2023, the applicant failed to appear at the Sunshine Magistrates' Court as required, and an arrest warrant was issued in relation to the informant Lindeman matter.

13 In May 2023, the complainant moved in with her sister, TH, and her sister's four young children.

14 On 22 May 2023, the applicant was arrested and entered into bail on his own undertaking in relation to the informant Lindeman matter. This undertaking was not provided to the court.

15 On 25 May 2023, the applicant was arrested and entered into bail on his own undertaking, without conditions, in relation to the informant Marsh matter.

16 On 7 June 2023, the applicant was arrested, charged and remanded into custody in relation to family violence offending in the informant Flight matter, which he allegedly committed against the complainant and her sister earlier that day.

17 The applicant has remained in custody since his arrest on 7 June 2023.

18 On 8 June 2023, the applicant was refused bail in the informant Flight matter in the Werribee Magistrates' Court on the basis that he failed to demonstrate exceptional circumstances justifying bail and was an unacceptable risk of endangering the safety or welfare of any person. The respondent applied to revoke bail in relation to the informants Marsh and Lindeman matters, however the court adjourned these applications.

19 On the same day, 8 June 2023, two interim FVIOs were made:

(a) at the Heidelberg Magistrates' Court, an interim FVIO was made protecting the complainant; and

(b) at the Melbourne Magistrates' Court, an interim FVIO was made protecting the complainant's sister and children.

20 Both of the interim FVIOs include no-contact conditions with limited exceptions. They last until a further order is made, and are set to return to the Heidelberg Magistrates' Court on 13 July 2023.

(a) 30 June 2023 at the Werribee Magistrates' Court for mention (informant Marsh bail matter);

(b) 13 July 2023 at the Werribee Magistrates' Court for mention (informant Flight remand matter) and application to revoke bail (informant Marsh and Lindeman bail matters); and

(c) 17 November 2023 at the Sunshine Magistrates' Court for mention (informant Lindeman bail matter).

22 On 7 June 2023, the applicant attended the complainant's address in Werribee where she resides with her sister and her sister's four young children. The complainant, her sister, who was six months pregnant, and her sister's four year old daughter were present at the time. The applicant asked to stay at the address, as he was homeless. The complainant's sister declined his request.

23 The applicant then entered an unlocked car parked in the driveway, released the hand brake, rolled the car into the street, and threatened to call the local council to have the car towed away. He then allegedly threw a two litre bottle of soft drink at the complainant's sister, hitting her leg; threatened to damage their car; threatened to kill himself, and ran in front of oncoming traffic. The complainant's sister called police, and the applicant left the address. However, he continued to message the complainant stating that he would self-harm in order to get a bed in hospital, and that if the complainant did not come with him he would smash their car.

24 Upon police attending the address, the complainant and her sister disclosed that for a few days prior to the incident, the applicant had been sleeping in a car outside the address (which is unable to be locked), and had attempted to gain access to the garage without permission.

25 Shortly after, police located the applicant nearby and arrested him. He was observed to behave emotionally and erratically following his arrest, including head-butting the police van and cell wall. He was not interviewed by police.

26 As a result of the incident, the complainant's sister suffered bruising to her inner thigh.

27 At the time of the alleged offending, the applicant was subject to a limited FVIO protecting the complainant, requiring that he not commit family violence against her; subject to a CCO in relation to violent offending committed against her and a male friend; and on bail in two matters (the informants Lindeman and Marsh matters) for alleged offending against the complainant and another male friend.

28 At 7:15pm on 10 August 2022, AK arrived at Flinders Street Station to meet the complainant. The complainant was waiting with the applicant, LA, and another person, KB, when AK arrived. The applicant then became aggressive towards AK, who was a former friend of his, and pushed him against a stationary train. The complainant put herself between the pair in an attempt to separate them, and the applicant allegedly punched AK four times to the ribs, and at least once to the head.

29 The applicant then left, reportedly walking along the railway lines, before being located by police inside a train and arrested. After disclosing significant mental health concerns, he was then taken to hospital for assessment. No interview was conducted by police.

30 AK did not sustain any injuries as a result of the alleged offending.

31 Between 10 November and 12 December 2022, the applicant allegedly texted and called the complainant on an almost daily basis, in breach of an interim FVIO with full no-contact conditions.

32 The complainant disclosed the alleged offending to police on 12 December 2022, after they were called to her address to conduct a welfare check. The complainant stated that she had been replying to the applicant out of fear that he would come to her address if she did not. The attending officers noted that the alleged ongoing contact from the applicant appeared to have contributed to the complainant's mental health decline.

33 In making a determination in relation to an Aboriginal person under the Bail Act 1977 ['the Act'], the Court is required by section 3A of the Act to take into account any issues that arise due to that person's Aboriginality, including -

(a) their cultural background, including ties to extended family or place; and

(b) any other relevant cultural issue or obligation.[2]

34 In discussing these provisions in the case of HA (a pseudonym) v The Queen,[3] the Court of Appeal held:

Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.

The provisions in the Act are also a recognition of the unacceptable over‑representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[4]

35 Because the applicant is charged with Schedule 2 offences[5] under the Act, which are alleged to have been committed while he was on bail for other Schedule 2 offences,[6] as well as during a period of a CCO made in respect for Schedule 2 offences,[7] bail must be refused unless the applicant satisfies the court that exceptional circumstances exist that justify the grant of bail.[8] In considering whether the applicant has satisfied this test, the court must have regard to the surrounding circumstances, including those relevant under section 3AAA(1).[9]

36 If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that risk is unacceptable.[10] In determining this, the court must have regard to the surrounding circumstances and whether there are any bail conditions that may be imposed to mitigate the risk so that it is not unacceptable.[11]

37 Finally, section 5AAAA of the Act provides that, in considering the release of the applicant on bail, the court must:

(a) make inquiries of the prosecutor as to whether there is in force an FVIO, family violence safety notice or recognised domestic violence order made or issued against the applicant; and

(b) in circumstances where the applicant is charged with family violence offences, consider whether - if the applicant were released on bail - there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of an FVIO.

38 The applicant is a 25 year old Aboriginal (Murri) man. He was born in New South Wales. He has been diagnosed with autism spectrum disorder since the age of six. The court was provided additional material by way of the supplementary affidavit of Matt Kearns dated 22 June 2023, exhibiting a bundle of medical materials pertaining to the applicant from the Victorian Aboriginal Health Service ['VAHS'].

39 He completed schooling to Year 10, and has previously worked as a roof-tiler.

41 The applicant has a limited, albeit relevant, criminal history comprising the following dispositions:

(a) on 21 January 2020, the applicant had a charge of theft from a shop dismissed by the Sunshine Magistrates' Court under section 76 of the Sentencing Act 1991; and

(b) on 23 February 2023, the applicant was sentenced by the Heidelberg Magistrates' Court to a 12-month CCO, without conviction, for: intentionally causing injury, intentionally destroying property, unlawful assault, committing an indictable offence whilst on bail, failing to give a name and address to an injured person, careless driving of a motor vehicle (two charges), driving whilst disqualified, driving whilst authorisation suspended, using an unregistered motor vehicle on a highway, and failing an oral fluid test within three hours of driving (two charges).

42 The applicant's CCO includes the following conditions:

(a) performing 100 hours of community work;

(b) being supervised by the Secretary;

(c) undergoing an assessment and treatment for drug abuse or dependency as directed;

(d) undergoing a mental health assessment as directed; and

(e) undergoing behaviour programs as directed.

43 It is alleged that the applicant has breached the conditions of his CCO and the FVIOs in place. The respondent has therefore applied to revoke bail in relation to the informants Marsh and Lindeman matters, but as above, the court adjourned these applications.

44 The supplementary affidavit of Alice Meredith dated 21 June 2023 exhibits a letter from Kristy Constantinou, a case manager at Melton Community Correctional Services. In her letter Ms Constantinou states that the applicant was "relatively compliant" with appointments through his CCO, and that "if [the applicant] gets granted Bail, then CCS will allow him to continue his CCO and have the matters listed alongside his current order".

45 The applicant is subject to two interim FVIOs, namely:

(a) an interim FVIO with no-contact conditions, subject to limited exceptions, made in the Heidelberg Magistrates' Court on 8 June 2023, protecting the complainant; and

(b) an interim FVIO with no-contact conditions, subject to limited exceptions, made in the Melbourne Magistrates' Court protecting the complainant's sister (TH) and four children.

46 The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances justifying a grant of bail.

Nature and seriousness of the alleged offending

47 The applicant acknowledges that the alleged offending is inherently serious, however submits that the offences of recklessly causing injury and using a carriage service to harass are at the lower end of objective gravity. The applicant noted in oral submissions that there was no direct physical contact between the applicant and his ex-partner, as in direct contact of a nature causing an injury, and that no property was actually damaged as a result of his actions.

48 The applicant submits that the prosecution case in relation to the offences of recklessly causing injury, persistently contravening an FVIO, using a carriage service to harass, and harassing a witness, lack strength. However the applicant concedes that other aspects of the prosecution case are strong.

49 The applicant acknowledges that he has a relevant but limited prior criminal history.

50 The applicant acknowledges that he has previously been convicted in relation to one charge of committing an indictable offence on bail. The applicant highlights that he has not been convicted of any offences of failing to appear on bail, nor are there any charges pending.

51 The applicant acknowledges that he was subject to a CCO and two bail undertakings at the time of the alleged offending. As already mentioned, there is evidence that he was relatively compliant with the conditions of his CCO at the time of the alleged offending in the Flight matter, but that this offending would technically constitute a breach of the CCO.

52 In relation to the informant Marsh bail matters, the applicant acknowledges that these allegations also relate to family violence offending against the complainant.

53 In relation to the informant Lindeman bail matter, the applicant states that the alleged offending relates to an unrelated party and pre-dates the imposition of the CCO.

54 The applicant acknowledges the two FVIOs currently in place against him.

55 The applicant acknowledges that he was homeless at the time of the alleged offending. He submits that accommodation has since become available to him with a friend, Mr Daryl Snowden, at an address in Hoppers Crossing.

56 Evidence was called from Mr Snowden at the hearing. He was willing, as were the two other people with whom Mr Snowden lives, to have the applicant live at their home in Hoppers Crossing. He gave evidence that the applicant would have his own room, and would not be allowed to use drugs in the house. Mr Snowden undertook to contact the informant if he were to become aware that the applicant had breached his conditions of bail.

57 The applicant has provided an undated letter of support from Evren Arif, owner and operator of Club Roofing Tarneit. Mr Arif states that he has known the applicant for four years, that the applicant previously completed two years of a three year roof‑tiling apprenticeship with him (which ended prematurely due to Covid‑19), and that the applicant is currently employed part‑time. Should the applicant be granted bail, Mr Arif will support him to complete the final year of his apprenticeship, continue on a part-time basis, or work full-time as a labourer. Mr Arif was not called to give evidence.

58 The applicant highlights his Aboriginality and diagnosis of autism spectrum disorder. Further, in email communication with the Court on 14 June 2023 seeking an urgent listing for the bail application, the applicant referred to his recent suicidal behaviour, youth, and this being his first time in custody.

59 A bundle of medical materials from the VAHS was provided by the applicant to the court. It was conceded in oral submissions that there does appear to be a lack of a formal revised diagnosis in relation to the applicant's autism diagnosis, though a letter was prepared on 30 August 2022 to a psychiatrist from the VAHS, specifically in relation to obtaining an updated confirmation diagnosis in relation to his autism spectrum disorder. It appears, therefore, that this diagnosis, and how it may affect the applicant, is in the process of being confirmed.

60 In terms of his current mental health, it was noted that under his current CCO conditions, the applicant is required to engage in psychological counselling, as well as alcohol and other drug ['AOD'] counselling. He has also completed a mental health care plan with his general practitioner, and it is intended that once funding is in place, he will be able to access regular psychological treatment.

Availability of treatment or bail support services

61 The applicant acknowledges that he was subject to a CCO at the time of the alleged offending. He submits that he has been compliant with the order, and that it has provided him with access to coordinated services in the community to address issues relating to health, housing and AOD treatment.

62 He submits that he will continue to engage with these services via the CCO, if granted bail. Ms Constantinou confirms that the applicant has completed the following CCO appointments:

(a) on 26 April 2023, he completed a mental health care plan with his GP; and

(b) he has been linked in with the VAHS in Epping, and is being supported by a clinician to complete a National Disability Insurance Scheme ['NDIS'] claim.

63 Ms Constantinou states that the applicant is currently awaiting placement for community work, and that a culturally specific men's behaviour program is recommended but yet to be initiated. He was scheduled to complete a drug assessment with Australian Community Support Organisation ['ACSO'] on 6 June 2023, however this was missed due to the applicant's remand in custody. Overall, it appears that CCO services for the applicant are presently at the referral and assessment stage.

64 Ms Constantinou confirms that, should the applicant be granted bail, community correctional services will continue to support him via the CCO.

65 A supplementary affidavit authored by Matthew Kearns, dated 22 June 2023, exhibits a letter from Ms Amanda Di Censo of Neami National, who worked with the applicant as a Community Rehabilitation Support Worker between September 2021 and March 2023. Ms Di Censo confirms that the applicant engaged in weekly one-on-one appointments with her during this time, with eagerness and meaningful commitment, and that she referred the applicant to the VAHS towards the end of their support period, for completion of the NDIS application.

66 In addition, the applicant has provided a letter in support by Keenan Madden, local justice worker at Kirrip Aboriginal Corporation ['Kirrip'], dated 'June 2023'.

67 Mr Madden states that Kirrip can provide the applicant with opportunities for cultural connection and support. For example, the applicant is invited to attend the Kirrip Men's Yarning Circle, which is held fortnightly on Wednesdays and is described by Mr Madden as an opportunity to engage, connect socially and culturally, celebrate culture, complete cultural engagement activities, and heal. Mr Madden states that Kirrip can also assist the applicant with referrals to other cultural support services, including for housing, employment, family violence, mental, medical, and personal health, AOD counselling, and financial counselling.

68 Finally, the applicant states that he has been engaging with VAHS. VAHS have confirmed that the applicant has been known to their service since June 2022, and has had health checks and mental health consults with a Dr Antony Raj. He has been referred for formal assessment in relation to his autism diagnosis.

69 The applicant submits that a CCO is within range for the offending. At hearing, it was conceded by the respondent that, additionally, the applications to revoke bail in the Marsh and Lindeman matters were also likely to be withdrawn were the applicant bailed in this matter.

70 Accordingly, the applicant submits that the time he will spend in custody is likely to exceed any sentence imposed, even if he was found guilty of all the offences. The applicant also drew the court's attention to the case of HA (a pseudonym) v The Queen,[12] in which the Court of Appeal said:[13]

It is, nevertheless, a consideration of significant importance both in deciding whether 'exceptional circumstances exist that justify the grant of bail' and in considering whether such risk as an offender would present if released on bail is acceptable. Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant's age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventive detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.

71 It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of bail conditions, in conjunction with the availability of rehabilitative services and stable accommodation.

72 The applicant further submits that the time he has spent on remand has been salutary, noting that this is his first time on remand and will result in an understanding that remand in custody is a possibility if he breaches bail.

73 The applicant proposes the following bail conditions:

(a) to reside at the proposed address in Hoppers Crossing;

(b) to comply with all lawful directions of Community Correction Services, Kirrip, ACSO and the VAHS;

(c) to comply with Interventions Orders P11245219 and N11580031;

(d) to report every Friday to Werribee Police Station between the hours of 9:00am and 8:00pm; and

(e) not to leave the state of Victoria.

74 The application for bail is opposed on the basis that the applicant has not established exceptional circumstances justifying bail, and that the applicant is an unacceptable risk of endangering the safety and welfare of any person; committing an offence while on bail; interfering with a witness or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail.

75 However, at hearing, the respondent conceded that it would be open to the court to find that the exceptional circumstances test has been established. Of course, it is for the court to be independently satisfied that the threshold of exceptional circumstances has been met. Nevertheless, the concession made by the prosecution is helpful.

76 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters.

77 In response to the applicant's submission that aspects of the prosecution case lacks strength, the respondent argues that the prosecution will rely upon witness statements from the complainant and her sister, and photographs taken by the complainant's sister depicting bruising of her leg.

78 In oral submissions, however, the respondent indicated that if the matter was to resolve as a plea, the prosecution would only proceed on the charges of making threats to damage property, contraventions of the FVIOs, unlawful assault, committing an indictable offence whilst on bail and interfering with the motor vehicle. The other charges, it was indicated, would be withdrawn. The respondent accepted that even if the Flight, Marsh and Lindeman matters were combined together, the aggregate sentence was likely to be a non-custodial sentence.

79 In addition to the two interim FVIOs made on 8 June 2023 protecting the complainant, and the complainant's sister and her sister's children, the respondent refers to a now expired FVIO, made in Heidelberg Magistrates' Court on 31 August 2021 protecting another person. The respondent notes that police applied for the order on behalf of this individual after she made allegations that the applicant had raped her. It does not appear that the applicant was ever charged in relation to the alleged incident, and in oral submissions, the respondent indicated that after having conducted further inquiries, it appears that the complainant in that matter had no recollection of the alleged incident and the police have marked it as 'nil offence detected'. In these circumstances I have not taken this allegation into account in my decision on this application.

80 The respondent notes that the applicant was homeless at the time of the alleged incident. It was also noted that the proposed address with Mr Snowden in Hoppers Crossing is close to the complainant's address in nearby Werribee, being approximately a 10 minute drive away.

81 The respondent states that the applicant is presently unemployed. The respondent notes that the applicant was not engaged in any schooling at the time of the alleged incident.

82 The respondent notes that there is a lack of information regarding the applicant's diagnosis of autism spectrum disorder, any current impact on the applicant, and whether he is receiving any treatment.

83 The respondent acknowledges that the applicant is an Aboriginal man, however notes that there is a lack of information regarding the applicant's connection to country and community.

84 In oral submissions, the respondent highlighted the concern that whilst there is a CCO in place which would address the applicant's mental health related issues, at this stage there is nothing specific planned and there are no dates for him to attend any psychology appointments.

85 The complainant and her sister have been consulted and express the view that, if granted bail, the applicant will continue to attend their address regardless of any bail conditions or intervention orders in place to stop this. They have stated that they are fearful for the safety of the children who reside at the address, more than anything else.

86 The respondent relied on the above factors in relation to exceptional circumstances to also establish that the applicant poses an unacceptable risk.

Endangering the safety and welfare of any person

87 The respondent notes that the applicant is currently remanded in relation to allegations that he contravened an FVIO protecting the complainant, committed violent offending against the complainant's sister, and damaged their property.

88 The respondent notes that, at the time of the alleged incident, the applicant was subject to:

(a) bail in two matters involving alleged family violence offending against the complainant and violent offending against a male friend of the complainant; and

(b) subject to a CCO for family violence offending against the complainant and violent offending against another male friend of the complainant.

89 The respondent submits that the ongoing nature of offending by the applicant against the complainant evinces an increased risk to her safety and welfare. The complainant is clearly concerned that the applicant will attend her address if granted bail, particularly given its proximity to the proposed bail address with Mr Snowden.

90 The respondent notes that the applicant is presently charged with multiple charges of committing an indictable offence on bail.

Interfering with a witness or otherwise obstructing the course of justice in any matter

91 The respondent notes that the applicant is currently remanded in relation to a charge of harassing a witness, and is subject to bail in relation to allegations that he previously contacted the complainant in contravention of an FVIO protecting her (informant Marsh bail matter).

Failing to surrender into custody in accordance with the conditions of bail

92 The respondent relies upon the applicant's transient history, noting that he was homeless at the time of the alleged offending and has resided at 11 addresses in the past five years, according to police records.

93 As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail pursuant to section 4AA(2)(c)(iii) of the Act. This is on the basis that the applicant has been charged with a Schedule 2 offence[14] whilst on a CCO for Schedule 2 offences.

94 I note that the authorities suggest that the exceptional circumstances test, although not impossible to reach, is a high threshold.[15] The applicant must show there are circumstances that are "right out of the ordinary" to justify his release on bail.[16]

95 If the applicant succeeds in establishing that the exceptional circumstances test is met, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated by the imposition of any bail conditions.

96 In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant's surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.

97 I have taken into account sections 3A and 5AAA of the Act, as required under the legislation.

98 With these factors in mind, I turn to considering the merits of the application.

Has the applicant shown that exceptional circumstances exist?

99 The core of the applicant's argument in relation to the exceptional circumstances test is that his personal and surrounding circumstances, in conjunction with his Aboriginality, constitute exceptional circumstances.

100 First, the applicant is a relatively young man, with significant challenges in life. He has autism spectrum disorder. He has never been in custody before, and was experiencing homelessness at the time of the alleged offending. He appears to be suffering from mental health problems.

101 The applicant has support available, if he is granted bail. In particular, it appears that his CCO can continue if bail is granted, with the applicant continuing to engage with VAHS, ACSO and 'Kirrip', as coordinated by Community Correction Services. These services can provide both the medical and culturally sensitive assistance that the applicant needs.

102 It is proposed that he live with a friend, Daryl Snowden, in Hoppers Crossing. Having heard from Mr Snowden, I am satisfied that he appeared credible and reliable when giving evidence in support of the applicant's application. The applicant also has an offer of employment, which would offer him the opportunity for stability.

103 These features appear to be accepted broadly and it also appears that should he take up the opportunities that are available to him, the applicant, has a number of supports and a plan as to what the future period of time until these matters are resolved would look like.

104 Furthermore, in terms of delay and likely sentence, that is a matter that is significant in the resolution of this application, because the applicant submits that a CCO will remain within range for the offending with which the applicant is now facing. So the applicant submits that the time he will spend in custody is likely to exceed any sentence imposed.

105 Once the position is reached as described above, in my opinion the applicant's situation is capable of being viewed in a different light. The applicant is a young man, with a limited criminal history, and is in custody for the first time. In my opinion there is a prospect that he may serve more time on remand than ultimately courts will impose by way of a sentencing outcome on him.

106 It seems to me the matters faced by the applicant are clearly amenable to resolution. It seems to me in light of all the circumstances that there should be a consolidation of a number of the matters leading to one or two further court hearings, with the applicant's charges being finally resolved before a Magistrate.[17]

107 I have taken into account that the applicant has a relevant criminal history, for offences such as intentionally causing injury, intentionally destroying property, unlawful assault, and committing an indictable offence whilst on bail. The alleged offences in this matter, the Flight matter, are serious, in that they relate to family violence. Of course, this cannot be taken lightly, however I accept, as was submitted by the applicant, that they do sit at the lower level of objective seriousness for these kinds of offences.

108 Finally, the applicant's previous non-compliance with his bail conditions raises serious questions about whether the applicant is capable and willing to comply with any grant of bail in this matter. I do accept that the Flight matters appear to have occurred in the context of an episode of poor mental health. If the applicant's apparent informal diagnosis was addressed, and a fuller picture surrounding the applicant's autism diagnosis was obtained, it may be that this concern is alleviated.

109 On balance, with all these factors in mind, I am satisfied that exceptional circumstances have been demonstrated.

Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?

110 With respect to the risk posed by the applicant, I have considered the submissions of the parties and all the relevant factors. In particular, I have considered the respondent's submission that the applicant poses an unacceptable risk of endangering the safety and welfare of the public, committing an offence while on bail and interfering with a witness, or otherwise obstructing the course of justice.

111 Specifically, the respondent submits that the offending directed towards CH has occurred over three separate periods, evincing a risk of ongoing offending against her. The applicant is also charged with the assaults of other persons and has a history of this behaviour.

112 I have noted and taken into account the applicant also has a history of committing offences whilst on bail. The applicant has continued to contact the affected family member, CH, despite intervention orders. She is of course a witness in these matters.

113 The applicant was located in a parked car belonging to the victim in front of her address at the time of his arrest. The respondent highlights concerns with his ability to surrender into custody in accordance with the conditions of his bail were he to be bailed. He has not had a permanent address in many years.

114 I note that counsel for the respondent conceded the possibility that the final outcome in these matters would be the imposition of a non-custodial sentence. Further, there is acceptance that the applicant has full employment available to him, and that there is accommodation offered and it appears accepted that having heard from that witness, the accommodation available was of an acceptable kind in the circumstances.

115 Whilst it is proposed that he live with a friend, I hold some concerns that he will continue to attend at the address of the affected family member under the intervention orders. These individuals have been consulted, and are frightened at the prospect of the applicant being released on bail, particularly given children live at the relevant address, and it is only a 10-minute drive from the Hoppers Crossing address.

116 I have noted also that the respondent also raised concerns that there are currently no dates in place in order to address issues by way of bail support. However, the applicant is supported by a number of agencies that have undertaken to provide him with ongoing support.

117 In the end, the applicant does pose some risk in each of the three categories raised by the respondent. However, the applicant submits that these can be mitigated in light of the rehabilitation services and stable accommodation available to him, and by the imposition of certain conditions. A grant of bail almost inevitably involves a degree of risk. The matter for consideration is whether risk can be ameliorated by the imposition of conditions, to a level that becomes acceptable in all the circumstances.

118 Having considered all of the matters and in respect of the question of unacceptable risk, the respondent has not satisfied me that the applicant cannot be made an acceptable risk by virtue of the imposition of bail conditions in all of the circumstances. Taking into account the surrounding circumstances, the applicant's indigenous background and the requirements of the principles of the Act, I propose to admit the applicant to bail.

119 In all the circumstances I am willing to accept that the degree of risk the applicant poses can be satisfactorily managed with the imposition of strict bail conditions.

120 Accordingly, the application is granted, on the following conditions:

(a) He attend the Werribee Magistrates' Court on 13 July 2023 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 [an address], Hoppers Crossing, Victoria, and not change that address without leave of the court;

(c) He remain at those premises between the hours of 9:00pm and 5:00am each day for the duration of bail;

(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;

(e) He notify the informant at least fourteen days in advance of any proposal to change his place of residence;

(f) He report every Monday and Friday, or the nearest day thereafter if it falls on a public holiday, to the Officer in Charge of the Police Station at Werribee, or his or her nominee, between the hours of 6:00am to 9:00pm;

(g) He comply with Intervention Orders N11580031 and P11245219;

(h) He not go to or remain within 500 metres of [the complainant's address] in Werribee VIC except when travelling on Duncans Rd Werribee or Princess Freeway Werribee for purposes related to employment;

(i) He comply with all lawful directions of Community Correctional Services;

(j) He comply with all lawful directions of the Australian Community Support Organisation (ACSO);

(k) He engage with and comply with all lawful directions of Kirrip Aboriginal Corporation;

(l) He attend mental health appointments and assessments as directed under the Community Corrections Order;

(m) He not contact any witnesses for the prosecution, with the exception of the informant;

(n) He not leave the state of Victoria;

(o) He not attend any international point of departure;

(p) He reappear before this court for judicial monitoring, to review compliance with the bail orders, at 10:00am on 11 July 2023, and any other further dates that the court appoints during the course of this order.

[1] Upon observing the complainant and LA watching television together in the bedroom he shared with the complainant, the applicant slammed LA into a window, causing it to smash; strangled him; struck him to the knee with shards of glass from the broken window; punched him to the ribs and bit his arms. He then slapped the complainant; screamed at her and called her a slut; pinched her forearm; threw her phone against a door, causing her phone to break; and threatened her and LA with a cricket bat he found inside the house.

[3] [2021] VSCA 64 (Maxwell P and Kaye JA).

[4] Ibid [58]-[59] (citations omitted).

[5] Specifically, indictable offences that are alleged to have been committed by the applicant while on bail for another indictable offence; indictable offences that are alleged to have been committed by the applicant during the period of a community correction order for another indictable offence; an offence against section 125A(1) of the Family Violence Protection Act 2008 (persistent contravention of notices and orders); and offences against the Act (commit indictable offence while on bail). See the Act, sch 2, items 1(a), 1(d), 19, and 30.

[6] Specifically, offences against section 125A(1) of the Family Violence Protection Act 2008 (persistent contravention of notices and orders). See the Act, sch 2, item 19.

[7] Specifically, offences against the Act (commit indictable offence while on bail). See the Act, sch 2, item 30.

[8] The Act ss 4AA(2)(c)(i) and 4A(1)-(2).

[12] [2021] VSCA 64 (Maxwell P and Kaye JA).

[14] Namely item 30, offences against the Bail Act 1977 and item 19, persistent contravention of an FVIO.

[15] Re Villani [2021] VSC 638, [34] (Tinney J).

[16] DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]-[66] (Lasry J); Re Tong [2020] VSC 141, [18]-[19] (Tinney J).

1. [17] As it turned out, in the period between providing oral reasons on this application and the publishing of written reasons, the Flight, Marsh and Lindeman matters were consolidated into a plea‑hearing at the Werribee Magistrates' Court on 30 June 2023. A number of the charges were withdrawn and the applicant was sentenced on the remaining charges to a 12 month CCO, without conviction, with a condition that he complete 50 hours of community work.