Applicant v Respondent

37 The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of failing to answer bail. The applicant submits that any risk can be rendered acceptable through the imposition of conditions, particularly mandated compliance with CISP.

38 The respondent submits it is open to the Court to find that exceptional circumstances exist. The respondent accepts the proposed address is suitable, and police have spoken with the applicant's sister‑in‑law. Additionally, the respondent notes the availability of the CISP, which will assist the applicant to access mental health support services, Alcoholics Anonymous and other programs designed to address the applicant's substance abuse and alcohol issues.

39 The respondent submits, however, that the applicant is an unacceptable risk of failing to answer bail for the following reasons:

(a) The supports in place are insufficient to mitigate the risk of the applicant failing to attend court;

(b) The applicant has a history of non‑compliance with bail and court orders, including intervention orders and a CCO;

(c) The prosecution case on all charges is strong; and

(d) The applicant will have only spent 39 days in custody as at the date of her plea hearing.

40 The respondent submits an immediate custodial sentence is within range, given the charge of contravene a CCO and the applicant's poor compliance with that order.

41 The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[9] Here, the real question is whether the combination of factors relied upon by the applicant is sufficient to satisfy that high, but not impossible, standard.

42 The respondent concedes exceptional circumstances exist here. That concession, whilst not determinative of the outcome, is a relevant matter in the applicant's favour.

43 The charges faced by the applicant are not serious, nor are they serious examples of the offences in question. While the applicant's conduct towards the arresting officers can fairly be described as appalling, the officers were not injured and the applicant was quickly brought under control with the use of OC spray. The two charges of fail to answer bail consist of no more than failing to appear at court; the applicant did not seek to leave the jurisdiction or evade authorities. The charge of criminal damage was committed in circumstances of family violence, as the unregistered van belonged to the applicant's ex‑partner, however it is not a particularly serious example of criminal damage. I note the applicant was originally granted bail on that charge, which dates back to January 2023. The prosecution case on all charges is strong and this is conceded by the applicant.

44 The matter will proceed as a plea of guilty and the applicant will be assessed for a further CCO. The applicant's breach of her CCO is not a serious example of contravention, and it was her first such order. The Corrections' Breach Report dated 27 April 2023 notes that the applicant had a range of issues, including accommodation instability and poor mental health.

45 An email from Corrections dated 29 February 2024 confirms that at the Drug Court assessment on 27 February, Corrections' position was that the applicant was eligible for a further CCO (subject to further assessment). An assessment of the applicant's current circumstances will likely result in her being given a further opportunity to complete the CCO and/or a further CCO. In my view, it is extremely unlikely that the applicant will receive a term of imprisonment for any of the offending. This is a very significant factor that goes a very considerable way to establishing exceptional circumstances.

46 The applicant has never received a custodial sentence and has been on remand for approximately four weeks. If not granted bail, she will remain on remand for approximately another two weeks. While this cannot be said to constitute delay, as that word is commonly understood in bail applications, it is nonetheless a significant period of time in circumstances where the offending is not, in my view, deserving of immediate imprisonment.

47 The applicant's criminal history is of some concern. She has failed to answer bail on three occasion in the past six years. She has breached family violence intervention orders on four occasions, although I note that for two of those breaches she received adjourned undertakings, and another was proven and dismissed. This suggests the breaches were not serious examples of the offence.

48 The applicant was on both bail and a CCO when she allegedly committed the offences of resisting an emergency worker on duty. The CCO had been imposed for similar offending. It is fair to conclude that the applicant has not taken court orders and grants of bail as seriously as she should, and has continued to offend while subject to both.

49 The applicant has been assessed as suitable for CISP. The applicant presented as highly motivated to abstain from alcohol and 'desperate' to change her lifestyle. She has agreed to attend her general practitioner for a mental health review, and undergo assessment and treatment in relation to substance abuse and alcohol issues. CISP will arrange the necessary appointments. The applicant has no prior involvement with CISP, and has not previously been supported on bail. In the circumstances, the availability of CISP is a significant factor that weighs in the applicant's favour.

50 Overall, I have reached the conclusion that the combination of factors here are capable of establishing exceptional circumstances. In particular, the following matters are significant: the offending does not warrant a custodial penalty and any time on remand will, in my view, exceed any ultimate sentence; the offending is very much at the lower end of seriousness; the applicant has a number of vulnerabilities and has previously been the victim of family violence; and the availability of CISP in circumstances where the applicant has not previously had such support while on bail.

51 I turn to the question of unacceptable risk. The respondent submits the applicant is an unacceptable risk of failing to answer her bail and bail should therefore be refused.

52 Whether the applicant is likely to receive a custodial sentence is a significant consideration when determining whether any risk is acceptable. If an accused is charged with serious matters and facing a lengthy custodial sentence if convicted, and there is a real risk he or she will deliberately fail to answer bail so as to avoid the consequences of his or her crimes, the risk of failing to answer bail may be unacceptable in all the circumstances. The seriousness of the consequences may also provide an accused with an incentive to flee the jurisdiction, increasing the risk they will fail to answer their bail. However, if an accused is charged with minor offending that will not attract an immediate sentence of imprisonment, those matters will ordinarily make it harder for the respondent to establish that such a risk is 'unacceptable'.

53 A risk is 'unacceptable' if it cannot be tolerated; a real risk of something occurring may still be acceptable when regard is had to all the circumstances of the case.[10] It is relevant to consider both the likelihood of the occurrence of the risk, and the magnitude of the consequences, should the risk be realised. Here, there is an appreciable chance that the applicant will not appear to answer her bail, given her history. Balanced against that history are the following factors: the applicant has spent 26 days in custody which has no doubt served as a salutary lesson; the applicant's matter is less than three weeks away; the applicant has available a suitable and stable address in the local area; and the applicant will be supported through CISP, which she has not had previously.

54 Moreover, the prospect of the applicant failing to answer bail carries no risk of injury or damage to any member of the community. There is no suggestion the applicant has the mindset, or the means, to flee the jurisdiction. Her family, including her children and grandson, all live in the Shepparton area. If she fails to appear, it is likely the applicant will be located by local police, arrested and brought to court. The matter is listed for a plea hearing, and the inconvenience to the court and authorities will be minimal. The real damage will be to the applicant, who will have breached her bail and find herself back in custody, where she will likely remain until her matter can be heard.

55 There are conditions that can be imposed which will reduce the risk that the applicant will fail to appear, including that she comply with CISP and reside at a known address. Additionally, the applicant has now experienced jail for the first time at the age of 47, which I expect was a sobering experience and will deter her from failing to answer her bail. She no doubt understands that if she continues to ignore her bail conditions, there will be real and serious consequences, including jail.

56 I accept there is a risk the applicant will fail to answer her bail. However, what is to be assessed is whether the risk the applicant might not appear is unacceptable. The risk must be sufficient to justify her continued detention in custody, in circumstances where she is charged with offences which are highly unlikely to attract a custodial penalty. In my view and in the circumstances here, the risk of the applicant failing to answer bail is not 'unacceptable'.

57 The Court is satisfied that exceptional circumstances are established that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk of failing to answer bail.

58 The applicant will be released on bail on her own undertaking on the following special conditions:

(a) The applicant is to attend the Shepparton Magistrates' Court on 14 March 2024 at 9:00am and then surrender herself, 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 herself into custody.

(b) The applicant is to reside at [REDACTED], Mooroopna in the State of Victoria and notify the Informant, Senior Constable Probst, 24 hours prior to any proposed change of address.

(c) The applicant not contact, directly or indirectly, any witness for the prosecution, except the informants, Senior Constable Probst and First Constable Watson.

(d) The applicant must attend all appointments and comply with all lawful requirements of CISP as directed by them, or their nominee/s, including attending in person the following:

(i) CISP appointment at 2:00pm on Monday 4 March 2024 at the Shepparton Magistrates' Court, 14 High Street, Shepparton.

(e) The applicant is not to possess or consume illegal drugs.

(f) The applicant is to report to the Shepparton Police Station every Tuesday and Friday between the hours of 7:00am and 8:00pm commencing on Tuesday 5 March 2024.

(g) The applicant is not to leave the State of Victoria.

[1] The circumstances of this matter are dealt with in more detail later in these reasons.

[2] Bail Act 1977 (Vic) sch 2.

[3] Ibid ss 4AA(2)(c)(iv), 4A.

[4] Ibid s 4A(3).

[5] Ibid ss 4A(4), 4D(1).

[6] Ibid ss 4D(2)-(3), 4E(1)-(2).

[7] Ibid s 4E(3).

[8] Ibid s 3 defines 'family violence' as including an offence where the conduct of the accused is family violence. 'Family violence' has the same meaning as in the Family Violence Protection Act 2008 (Vic).

[9] See Re CT [2018] VSC 559 at [64]-[66] and the cases referred to therein.

[10] See Re Kyle Magee [2009] VSC 384, [18]-[22], where J Forrest J considered the prospect of re‑offending in determining a 'show cause' bail application. The applicant was charged with minor criminal damage, being the painting of a tram shelter. The applicant was a recidivist activist with a relevant prior record, and on bail at the time of the alleged offences. His Honour found that there was a 'real risk of re‑offending, and by that I mean a risk which is neither farfetched nor fanciful, whatever conditions are imposed'. However, he balanced this against the fact that 'the prospective offence of which there may be a risk is particularly low on the scale of criminal activity' and 'such prospective re‑offending carries no apparent risk of injury to any other member of the community or, for that matter, threat to any other member of the public.' See also Hall v Pangemanan [2018] VSC 533, [25] per Croucher J.