Applicant v Respondent

[2025] VSC 607

Supreme Court of Victoria|2025-09-24|Before: Gorton J

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General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of Victoria

Decision date

2025-09-24

Before

Gorton J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

The applicant has a history of exposure to physical and sexual violence commencing when she was a child, and of substance abuse that began as a teenager. The applicant's parents separated when she was 4 years old. She describes her father as being a 'very violent alcoholic' and witnessed him abuse her mother prior to their separation. Following the separation, the applicant's father became physically violent towards the applicant and her brother, and when the applicant was 9 years old, her father died by suicide. Her mother re-partnered when the applicant was 11 years old, and she maintains a positive relationship with her mother and stepfather.
Between the ages of 10 and 13, the applicant says she was in a sexual relationship with a man who was 17 years older than her. This relationship coincided with the applicant beginning to abuse alcohol, and she says that she commenced 'binge drinking' on the weekends from 13 years of age until she turned 18 years old, when she ceased drinking altogether.
The applicant completed Year 12, and enrolled in a Bachelor of Laws and Criminology at Deakin University, but discontinued her studies after one semester. She went on to complete a Diploma of Financial Planning, and had intermittently been employed by a company owned by her mother. She had commenced studying towards a Graduate Diploma of Financial Planning, but says that she discontinued those studies due to the impacts of being in a violent relationship.
The applicant told Ms Sandra Cokorilo, a psychologist who saw her in the middle of 2024 for the purpose of preparing a report for use in a plea hearing, that she was first introduced to illicit drugs during a long term relationship that commenced when she was 18 years old, although this does not accord with the history she also gave Ms Cokorilo of using ecstasy and cocaine when she was 15 years old, then cannabis when she was 16 years old. She described controlling and physically abusive behaviour at the hands of a partner with whom she started to live when she was 19 years old. She started using methylamphetamine on a daily basis, and gamma-hydroxybutyrate (more commonly known as GHB) when she was 20 years old. The applicant told Ms Cokorilo that she was primarily using methylamphetamine to control her weight and to limit her appetite, with the applicant reporting that she was previously diagnosed with anorexia nervosa. Two years later, the applicant and her partner separated, and the applicant began living between her mother's house and 'drug houses'.

[2]

On 18 December 2019 (when the applicant was 22 years old), police found in her vehicle 2.946 kilograms of 1,4-butanediol, 6.5 grams of pure methylamphetamine, five vials of melanotan, a set of scales and $1,360 in cash. She was arrested and remanded in custody. On 20 October 2020, she was convicted of trafficking in a commercial quantity of a drug of dependence, trafficking in a drug of dependence, dealing in property suspected of being the proceeds of crime, and possessing a Schedule 4 poison. The maximum penalty for trafficking in a commercial quantity of a drug of dependence was 25 years of imprisonment. In her plea hearing, it was said that the applicant had undertaken a voluntary, intensive six-month residential drug and alcohol treatment program while in custody and that she was 'motivated to make positive change' and had 'very good prospects of rehabilitation'.[1] The sentencing judge accepted those submissions.[2] She was sentenced to three years imprisonment with a non-parole period of one year and six months.[3] This was her first sentence of imprisonment. The sentencing judge referred to the applicant having spent four to six weeks in a drug rehabilitation centre in 2019,[4] which I take to be a reference to the program referred to in para 6 above.
In 2020, the applicant was diagnosed with post-traumatic stress disorder. The following year, she commenced weekly psychological counselling whilst in custody and, she says, she was able to abstain from drug use for nine months.
In July 2021, the applicant was granted parole. According to the history later taken by Ms Cokorilo, the applicant completed an episode of AOD[5] counselling as part of her parole requirements, but 'lied about her drug use as she did not want to be reincarcerated for breaching parole'. In December 2021, the applicant either failed to attend for urinalysis or returned a positive result for an illicit substance and failed to comply with a curfew and her parole was revoked.
In December 2022, the applicant was again released on parole. It is apparent that at least by October 2023, when the applicant took out a family violence intervention order against her partner who she said assaulted her during a drug induced episode of paranoia, the applicant was again using illicit substances.
On 1 November 2023, the applicant was referred to The Orange Door, which is a network for, among other things, adults who have experienced family violence. She was referred to 'Victim Survivor Family Violence Case Management'.
On 14 January 2024, police observed what they believed to be a stolen car in the garage at the applicant's residence at 9B McAllister Street, Frankston. Some people present, when they noticed the police, climbed the side fence, and another person was arrested for an unrelated matter. The next morning, the property was searched. The police located substantial amounts of unlawful drugs, including 2.8 kilograms of 1,4-butanediol in a drain in the back garden, three bottles containing 1,4-butanediol in the house, two sets of stolen registration plates, and some stolen identity cards. CCTV footage is said to reveal the applicant accessing the bottles hidden in the drain in the backyard on six occasions.
On 16 January 2024, the applicant presented herself to the Frankston Police Station where she was charged and remanded in custody. She was taken to the Dame Phyllis Frost Centre in Ravenhall. Prior to doing so, she had concealed methylamphetamine 'inside her person'. This was identified during a body scan. The applicant was locked down in a cell by herself. On 20 January 2024, she handed staff a zip lock bag containing 3.97 grams of methylamphetamine. A further body scan identified further anomalies. On 22 January 2024, the applicant handed staff another zip lock bag containing 4.6 grams of methylamphetamine.
On 12 August 2024, the applicant was convicted of trafficking a drug of dependence, dealing with property suspected to be the proceeds of crime, and introducing a drug into a remand centre. She was sentenced to 12 months' imprisonment and an 18 month community correction order. This was her second length of time in prison. From September 2024, the applicant was provided with support by Drummond Street Services, which is an organisation that provides support to people transitioning from being in custody to living in the community.
On 14 January 2025, the applicant was released from custody and commenced the 18 month community correction order. There were conditions of this order that she engage with 'assessment and treatment (including testing) for drug abuse or dependency as directed'. In February 2025, the applicant was provided with an 18-month rental through the Corrections Victoria Housing Program in Tattenham Street, Caulfield and, I am told, still has access to that stable accommodation if bail is granted. A letter from Ms Vanessa Day, a senior therapeutic coordinator at Drummond Street Services, dated 3 September 2025 states that the applicant has accessed family violence support, mental health treatment and drug and alcohol support services while in the community.

[4]

The applicant's obstetrician, Dr Peter Neil, said that he first saw the applicant when she was 10 weeks pregnant. This must have been in late March or early April 2025. From this time, at least, the applicant knew that she was pregnant. On the allegations, the applicant continued to use drugs and to commit further drug and driving offences after her release and notwithstanding her pregnancy and the existence of the community correction order.
On 13 April 2025, it is alleged, a police helicopter noticed a speeding car that was being driven by the applicant and radioed to a police vehicle. When the police vehicle came up behind the car, the applicant fled and drove at speeds as high as 158km/h in an 80km/h zone in the Seaford area to get away. The police vehicle ceased pursuing her as a result but the police continued to monitor the car from the helicopter. The applicant drove through two red lights at speed and drove at approximately 120km/h in a 60km/h zone. The applicant only stopped her car after police deployed a tyre deflation device, causing the car's tyres to burst. The applicant, it is alleged, then provided a false name and address. The car was searched, and police officers found a bag of methylamphetamine in a handbag, along with the applicant's driver licence (and the applicant then confirmed her real name). The car was bearing cloned registration plates. The applicant was arrested and underwent blood testing, which confirmed the presence of methylamphetamine. She was charged with several counts of dangerous driving, possession of methylamphetamine, stating a false name to police, using a vehicle without proper number plates, speeding, and driving with methylamphetamine in her blood and associated offences. She was released on bail by Victoria Police.
The only conditions of bail, other than that she appear before the Moorabbin Magistrates Court, were that the applicant reside at an address in Valetta Street, Carrum that she identified as her residence and that she notify the Informant if she were to change address. She later informed the Informant that she would be at an address in Willjohn Drive, Mount Martha. I was told, and accept, that the Carrum address was where the father of her child lived, and the Mount Martha address was where her mother and step-father lived. She did not refer to the Tattenham Street address of the accommodation that had been provided to her by the Corrections Victoria Housing Program.
As part of the program of treatment associated with her community correction order, in April 2025 the applicant completed a 'comprehensive mental health assessment' through Monash Health, and between May and July 2025 she attended four mental health counselling sessions and one session with a general practitioner. Also as part of the program of treatment associated with her community correction order, the applicant was referred to Caraniche to participate in its 'G24-W' program which is an alcohol and drug treatment program for people assessed as being 'medium risk community-based offenders'. This program ran between 5 May 2025 and 7 July 2025 and, according to a letter from Caraniche dated 1 September 2025, the applicant engaged well with that program. On completion of that program, on 22 July 2025 the applicant commenced AOD counselling through Caraniche. She missed one session and was otherwise 'typically' 5-10 minutes late.
In the meantime, however, on 17 July 2025, it is alleged, the applicant was driving through Cranbourne and failed to stop at traffic lights and collided with the rear of another vehicle. Both vehicles sustained significant damage and the other driver suffered a concussion and whiplash. It seems likely from the photographs that the applicant's car was not drivable. According to the other driver, the applicant got out of her car with some bags and some registration plates and was 'frantic and frustrated' and 'trying to leave and very eager to get away' and refused to give her licence details although she did provide a phone number. She left in an Uber. The vehicle allegedly driven by the applicant was registered to a business. On 21 July 2025, First Constable Waugh contacted the applicant and confirmed that she was the registered owner of the business. In accordance with s 60 of the Road Safety Act 1986, First Constable Waugh required the applicant to nominate the driver of the vehicle at the time of the collision. It is alleged that she failed to nominate the driver, and she was charged with refusing or failing to comply with a requirement under s 60 of that Act.
Finally, in the early hours of 17 August 2025, it is alleged, the applicant was driving through Seaford when she veered off the road and collided with a parked vehicle. The applicant drove away from the site of the collision, but the front bumper of her car had fallen off due to the severity of the impact and was left behind at the scene. Police officers arrived at the site of the collision a few minutes later and, at about 12:49am, those officers located the applicant driving the damaged car. As the police officers approached the applicant's car, they observed her trying to hide a pink bag under the driver's seat and a glass pipe. A search was conducted of the applicant's car and police located the following items:

[9]

The applicant is charged with a Schedule 2 offence, committed at a time when she was on bail for a Schedule 2 offence and the subject of a community correction order for a Schedule 2 offence.[8] Consequently, I must refuse the applicant bail unless I am satisfied that 'exceptional circumstances exist that justify the grant of bail'. In considering whether exceptional circumstances exist, I must take into account the 'surrounding circumstances'.[9] The surrounding circumstances are 'all the circumstances that are relevant to the matter' and include: whether the applicant would be sentenced to a term of imprisonment; the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant's criminal history; the extent to which the applicant has complied with the conditions of any earlier grant of bail; whether, at the time of the alleged offending, the applicant was on bail for another offence; the availability of treatment or bail support; and the applicant's 'personal circumstances, associations, home environment and background'.[10]
If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then grant bail unless I am satisfied there exists an 'unacceptable risk' that the applicant would, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[11] When considering whether a risk is an 'unacceptable risk', I must again take into account the 'surrounding circumstances' and consider whether the imposition of any bail conditions could mitigate the risk to one that is not an unacceptable risk.[12]
In considering both whether exceptional circumstances exist that justify the grant of bail and whether there is an unacceptable risk of the kind referred to above, regard must be had to the overarching importance of maximising the safety of the community and persons affected by crime, and also to the presumption of innocence and right to liberty of persons who have not been, and may never be, found guilty of the charges alleged against them.[13]

[10]

It could not be said that the Crown case is weak. Nor is the applicant particularly young, or facing a period of imprisonment for the first time. Her counsel submitted, however, that exceptional circumstances were established by reason of her pregnancy, the availability of and her engagement with support services (including accommodation), and the likely delay before trial.
The question of delay is not straightforward. If the applicant is charged with trafficking in not less than a commercial quantity, there will likely be longer delays, as there may then be a committal and a trial in the County Court, but any sentence would likely be longer. I was told that the seized drugs will not in practice be tested before a contest mention, and that it would then take some 19 weeks for the test results to be returned. There could also be delays associated with the proposed forensic analysis of the applicant's phone, but there was no evidence put before me as to how long that delay might be. In my view, the appropriate approach is simply to deal with the charges as they are currently formulated. On that basis, I was told that, if the applicant is not charged with trafficking in not less than a commercial quantity, a hearing of the current charges could be held in the middle of next year. In those circumstances, given the applicant's past history, the quantity of drugs in question (even if short of a commercial quantity, they are well into the traffickable quantity range), the very serious nature of the driving offences alleged, and the fact that she was on a community correction order and also on bail, I am not satisfied that the period of remand would likely exceed any sentence imposed.
I am also not persuaded that the availability of support services goes any real distance towards establishing exceptional circumstances. The applicant has had support services available to her in the past and, assuming the allegations may be proved, they have not prevented her from engaging in serious criminal behaviour. So much emerges from the discussion of the applicant's past history set out in detail above. I will return to this point when considering below whether there is an unacceptable risk.
The question of the applicant's pregnancy is more significant when assessing whether exceptional circumstances exist.[14] This is the applicant's first pregnancy and her child is due on 26 October 2025. The pregnancy is, according to her obstetrician Dr Neil, complicated by the applicant's 'low thyroid' and a 'degree of fetal growth restriction secondary to likely placental insufficiency'. The applicant is currently at the Dame Phyllis Frost Centre, and her medical care is being undertaken at the nearby Joan Kirner Women's and Children's Hospital. She is still having fortnightly scans, but has to be taken there under guard. Notwithstanding the applicant's expressed concerns, I do not accept that the applicant's antenatal treatment will be inadequate if she remains in custody. But I do accept that being in custody significantly increases the stress and sense of uncertainty that the applicant experiences and will continue to experience with her pregnancy. As her counsel points out, she is unable simply to attend a hospital if she feels the need to do so but is dependent on others to take her there and there have been occasions where she feels that her concerns about her baby or pregnancy have gone unheeded. These additional stresses associated with her being in custody are significant and not to be ignored.
There is also the associated uncertainty as to what will happen after the applicant's baby is born. The Dame Phyllis Frost Centre operates a Living with Mum program which, if approved, would allow the applicant to keep the baby with her in custody after she gives birth. The applicant has applied under this program, but a decision has not yet been made. The applicant is, I accept, distressed at the thought that she might not be able to have the baby with her, or properly to bond with that baby, if she remains in custody. There would also be, of course, additional difficulties experienced caring for an infant in prison under such a program when compared to doing so in one's own home. Also, as the material provided by the applicant emphasises, it is generally undesirable, for both the mother and child, for parents of young children to be in custody.
Taking the fact and these consequences of the applicant's pregnancy into account, and the other circumstances referred to above, I am satisfied that exceptional circumstances exist that (subject of course to the question of unacceptable risk) justify the grant of bail, in the sense that they take the circumstances of this application well outside the ordinary or normal.

[11]

There is not a real risk that the applicant, if granted bail, might flee or not surrender herself into custody or might interfere with a witness. However, counsel for the applicant sensibly accepted, as I understood it, that there was a risk that the applicant, if released on bail, would commit a Schedule 2 offence (trafficking in a drug of dependence, or dangerous or negligent driving while pursued by police) or endanger the safety or welfare of any other person. Counsel for the applicant submitted, however, that in presence of available rehabilitation services and following the salutary effect of the applicant's recent imprisonment with its associated prospect of her giving birth in custody and possibly not being able to have her baby with her, the imposition of conditions would reduce those risks to acceptable risks. The conditions suggested included that the applicant reside at an identified premises, respect a curfew, report to a police station three times a week, and not drive a car.
Counsel for the applicant also submitted that it was not permissible under the legislation to have regard to any risk that might be posed to the applicant's unborn child, because the unborn child was not an 'other person' for the purpose of s 4E(1)(a)(i) of the Bail Act 1977. The legislature has not expressly extended the test to a foetus when it might have done so, and under the Interpretation of Legislation Act 1984 a 'person' includes an 'individual' which is a 'natural person' but is not expressed to include an unborn child.[15] As counsel for the applicant pointed out, although there are good reasons for which it would make sense that the risk to a foetus is something that should be considered, there may have been good reasons, based on a concern not to discriminate against pregnant women, for excluding a risk to a foetus.
I accept the applicant's submission the phrase 'other person' in s 4E(1)(a)(i) of the Bail Act 1977 does not extend to a foetus.[16] I do not, however, accept the applicant's submission that this means that the fact of her pregnancy and impending birth must be ignored. The likelihood is that if the applicant is granted bail, as from 26 October 2025, that is in approximately one month's time, she will have the care of a newborn. The assessment as to whether a risk is acceptable or unacceptable necessarily involves an assessment as to what might or might not happen in the future to people who may in the future be in the applicant's orbit but who are not presently in the applicant's orbit. In this way, any risk that the applicant will pose from 26 October 2025 to the safety of her newborn child is a risk to be taken into account in determining whether there is an unacceptable risk that the applicant would, if released on bail, endanger the safety of another person.
In my assessment, the risk that the applicant if released on bail would traffick in a drug of dependence, or drive dangerously or negligently while pursued by police or endanger the safety or welfare of any other person is an unacceptable risk that cannot be ameliorated to make it an acceptable risk by the imposition of conditions. I do not accept that the applicant's recent experiences in custody have likely altered, or that the availability of support services would likely alter, her established pattern of dangerous offending. I have formed this view, even having regard to the impact on her of her being required to give birth and potentially to care for her infant in a custodial environment when deciding what amounts to an acceptable risk. I note, in particular, that:

[12]

(a) The applicant has, on the allegations, repeatedly engaged in dangerous driving that has put other road users at real risk of death or serious injury. On 17 July 2025, it is alleged that she drove through a red light and collided into another car, causing that driver injury and rendering her own car undrivable. On 17 August 2025, it is alleged that she veered off the road and collided at some speed with a parked car. Most concerningly, the driving alleged to have taken place on 13 April 2025 involved running red lights at very high speed, and driving at very high speeds through streets that might be expected to have other road users or pedestrians on them, as well as a concerted effort to avoid arrest. Even a small risk that she might engage again in such behaviour is a very significant concern;

(b) The applicant, on the facts or allegations, took drugs or refused a drug test in breach of her conditions of parole, continued to traffick in drugs while under a community correction order, and drove dangerously despite being on a community correction order and on bail. She has, on the allegations, engaged in this conduct despite two prior periods of imprisonment. In this way, she has demonstrated a willingness to act unlawfully even while under supervision by relevant authorities and even when it carried with it serious consequences for her. There is a real risk that she would disregard a condition of bail that she not drive if she decided she wanted to drive;

(c) The applicant has, on the allegations, repeatedly taken methylamphetamine despite knowing that she was pregnant, and repeatedly driven while under the influence of drugs despite knowing that she was pregnant. This has been the case despite her being involved in treatment programs directed at helping her to overcome her addiction. These matters go against the suggestion that she would modify her drug-taking behaviour or driving out of a concern for her child;

(d) The applicant has, on the allegations, taken methylamphetamine, trafficked methylamphetamine, and driven in a highly dangerous manner despite the availability of and participation by her in treatment and the provision to her of stable accommodation. The applicant has told falsehoods to persons entrusted with her treatment, rather than engaged openly with them. The clearest example is her telling Caraniche that she had abstained since she found out that she was pregnant. I can understand that there may have been a sense of shame involved in her admitting that she was putting her unborn child at risk by taking methylamphetamine while pregnant, as her counsel urged, and that this may explain her desire to tell that falsehood. But these matters of history go against the suggestion that, by reason of the availability of treatment, she would abstain from drug trafficking or dangerous driving should she be released on bail. In this context, I obtain little comfort from the assertion by Mr Matthew Nally, a senior family engagement worker, in his letter of 4 September 2025 that the applicant 'appears to have demonstrated personal growth and a commitment to positive changes during her short time in custody'. There is nothing to suggest that Mr Nally was across the applicant's full history and established pattern of recidivism; and

(e) I accept that the applicant is currently not taking methylamphetamine while she is in custody and that much of her alleged offending was a consequence of or associated with her substance abuse. But she has twice before had extended periods of time in custody and then returned to substance abuse on release, even when provided with significant supports to help her transition back into the community. The risk that she would do so again is very real. Also, I note that the applicant's criminal conduct, or alleged conduct, is not limited to the sort of offending that merely supports her own habit. The levels of drugs alleged to have been found, together with the false numberplates and trafficking paraphernalia and cash, indicate that the criminal conduct was probably also providing for her income stream (and she had no other employment, it seems, at least since some time in 2023). In this way, and although I consider this to be a matter of only marginal significance, there remains also a prospect that she would return to drug trafficking if released even if she herself were able to remain sober.