Application for Bail by Timothy Logan [2019] VSC 134 (28 February 2019)

Supreme Court of Victoria|2019-02-28|Before: ELLIOTT J

CRIMINAL LAW - Bail - Multiple charges -Whether exceptional circumstances - Whether unacceptable risk - Bail granted with conditions - Bail Act 1977 (Vic), ss 3AAA, 4A, 4AA, 4E, 30B - Crimes Act 1958 (Vic), ss 63(2), - (Vic), , (1)(a) - (Vic), s 51(2) - (Vic), ss 123(2), 125A(1).

1 The applicant, Timothy Logan, is 36 years old.[1]

2 He was arrested and remanded in custody on 3 October 2018, and charged with the following offences:

(1) 1 count of theft of a motor vehicle pursuant to s 74 of the Crimes Act 1958 (Vic) ("Crimes Act").

(2) 1 count of theft pursuant to s 74 of the Crimes Act.

(3) 1 count of child stealing pursuant to s 63(2) of the Crimes Act (which has a maximum penalty of 5 years).

(4) 1 count of false imprisonment pursuant to common law.

(5) 1 charge of resisting an emergency worker pursuant to s 51(2) of the Summary Offences Act 1996 (Vic).

(6) 2 counts of breach of an alcohol interlock condition pursuant to s 50AAD(1)(a) of the Road Safety Act 1986 (Vic) ("Road Safety Act").

(7) 3 counts of committing an indictable offence (theft of a motor vehicle,[2] theft,[3] and false imprisonment[4]) whilst on bail pursuant to s 30B of the Bail Act 1977 (Vic) ("Bail Act").

3 On 23 November 2018, the applicant was charged with a further offence: 1 count of having had a sample of blood taken within 3 hours of driving or being in charge of a motor vehicle and that sample being found on analysis to contain more than the prescribed maximum concentration of alcohol and any concentration of a prescribed illicit drug[5] pursuant to s 49(1)(j) of the Road Safety Act.[6]

4 The applicant contests the charges of child stealing,[7] false imprisonment,[8] and committing the indictable offence of false imprisonment whilst on bail[9] ("the Contested Charges"). The applicant intends to plead guilty to the balance of the offences with which he is charged.

5 At the time of allegedly committing these offences, the applicant was on bail for the following charges:

(1) 1 count of theft of a motor vehicle pursuant to s 74 of the Crimes Act.

(2) 1 count of committing an indictable offence (theft of a motor vehicle) whilst on bail pursuant to s 30B of the Bail Act.

6 Further, at the time of allegedly committing these offences, the applicant was subject to summons to answer for the following charges:

(1) 5 counts of contravention of a family violence intervention order pursuant to s 123(2) of the Family Violence Protection Act 2008 (Vic) ("Family Violence Protection Act").

(2) 3 counts of persistent contravention of notices and orders pursuant to s 125A(1) of the Family Violence Protection Act.

Presently, there is no family violence intervention order pursuant to the Family Violence Protection Act in place against the applicant, as the order the subject of these charges has expired.

7 The applicant has applied to this court for bail.

8 For the reasons that follow, the applicant will be granted bail, subject to conditions.

9 Section 4 of the Bail Act provides that a person accused of an offence is entitled to bail, unless bail must be refused in accordance with the Bail Act.

10 The Bail Act provides that a "2-step test" applies to consideration of a grant of bail in certain circumstances. Where, as here,[10] a person is accused of a Schedule 2 offence, and it is alleged that offence has been committed while the accused was on bail for another Schedule 2 offence, then, as a first step, the court must apply the "exceptional circumstances test".[11] That test provides that the court must refuse bail, unless the applicant can satisfy the court that exceptional circumstances exist justifying the grant of bail.[12]

11 In considering whether exceptional circumstances exist, the court must take into account the "surrounding circumstances" being all the relevant circumstances. This directs attention to the matters set out at s 3AAA(1) of the Bail Act, including, relevantly:

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) whether there is in force -

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised [domestic violence order] made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

...

12 "Exceptional circumstances" are not defined in the Bail Act. However, it is well established that "exceptional circumstances" will only exist if there are facts before the court that take the case out of the normal case, thereby justifying the grant of bail (subject to further relevant considerations) notwithstanding the charge or charges against the applicant.[13]

13 Although the threshold of "exceptional circumstances" is high,[14] "it is not impossible to reach".[15] Further, exceptional circumstances may exist by reason of a single exceptional circumstance; or, by reason of a combination of circumstances, even if none of those circumstances are individually exceptional.[16] Furthermore, all relevant circumstances must be considered, including any relevant circumstances other than those set out at s 3AAA(1) of the Bail Act.

14 If the court is satisfied that exceptional circumstances exist justifying the grant of bail, then, as a second step, the court must apply the "unacceptable risk test".[17] That test provides that the court must nonetheless refuse bail if the prosecution can satisfy the court there is an unacceptable risk that, if granted bail, the applicant would:[18]

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail.

15 In considering whether an unacceptable risk exists, the court must again have regard to the "surrounding circumstances", including the matters set out at s 3AAA of the Bail Act. In addition, the court must consider whether there are bail conditions which may be imposed to mitigate, and so render acceptable, any risk.[19]

16 Throughout, the Bail Act is to be applied and interpreted in accordance with the guiding principles set out in s 1B of the Bail Act, including, relevantly, that:

(1) The Parliament recognises the importance of -

(a) maximising the safety of the community and persons affected by crime to the greatest extend possible; and

(b) taking into account the presumption of innocence and the right to liberty;

...

17 On 4 October 2018, the applicant made an application for bail at the Melbourne Magistrates' Night Court. That application was refused.

18 On 2 January 2019, a further application for bail was listed. However, that application was abandoned so that the applicant could be assessed by the Court Integrated Services Program ("the Services Program"). The Services Program, in a letter signed by a case manager and dated 23 January 2019 ("the January Letter"), recommended the applicant for Level One Community Referral. The Services Program referred the applicant to the ReStart program ("ReStart") delivered by Australian Community Support Organisation Limited ("the Support Organisation"). That program would provide the applicant with 3 months of outreach support, should he be granted bail.

19 The applicant was re-assessed by the Services Program on 22 January 2019. In a letter signed by a Services Program assessment and referral practitioner and dated 27 February 2019, the Services Program, as it did in the January Letter, recommended the applicant for Level One Community Referral to Restart ("the February Letter").

20 On 24 January 2019, the applicant made a further application for bail ("the Second Application"). The applicant submitted that exceptional circumstances were established essentially by 3 factors in combination. First, that appropriate social supports and accommodation would be available to the applicant should bail be granted. Secondly, that in respect of the Contested Charges, and particularly the most serious charge of child stealing, the prosecution's case suffers significant weaknesses. Thirdly, that if the applicant was not granted bail before the contested hearing listed for 3 June 2019 and the Contested Charges were not made out_,_ then the applicant's pre-trial custody would exceed the applicant's likely sentence. Further, the applicant submitted that he would not pose an unacceptable risk should he be granted bail, given his limited prior offending, and the availability of appropriate supports.

21 Bail was again refused. The Magistrate considered that the factors identified by the applicant did not constitute exceptional circumstances, and, further, that there was an unacceptable risk that the applicant would re-offend while on bail, and endanger the safety or welfare of the applicant's victims.

22 At the time of that application, the applicant was remanded in custody until the contested hearing scheduled for 3 June 2019.

23 In support of this application for bail, counsel for the applicant relied primarily on 7 factors said to constitute exceptional circumstances justifying the grant of bail, namely:

(1) The applicant has a limited relevant criminal history.[20]

(3) The applicant is vulnerable in custody, since he has cognitive impairment, mental health conditions, and has been the victim of repeated assaults in custody.[21]

(4) The applicant would receive appropriate social and rehabilitative supports and accommodation from Restart should he be granted bail.[22]

(5) The prosecution's case in respect of the Contested Charges is weak.[23]

(6) Unless granted bail, the time the applicant spends in custody will likely exceed any sentence of imprisonment.[24]

(7) The prosecution is preventing the matter from resolving by persisting with the Contested Charges, which, it is said, constitutes an abuse of process.

24 Further, counsel for the applicant contended that granting the applicant bail would not constitute an unacceptable risk, in light of the surrounding circumstances, and particularly given the availability of appropriate supports. In addition, counsel for the applicant identified certain bail conditions said to be capable of mitigating any risk.

25 These, and some additional matters, are addressed in further detail below.

26 Counsel for the applicant noted that the applicant has a limited criminal history. In 2018, drug-related matters, and a matter related to an intervention order were dealt with without convictions being recorded. The applicant's only recorded convictions are for driving-related offences more than 15 years ago. Relevantly, given the nature of the Contested Charges, the applicant's criminal history does not include any violent or sexual offences, nor any offences involving children. Further, the applicant's record discloses only a single dishonesty-related matter, which was dealt with - again, more than 15 years ago - without a conviction being recorded.[25]

27 The prosecution did not make submissions as to the applicant's criminal history, save to observe that the applicant has a history of drug and dangerous driving charges.

28 Before now, the applicant has not spent any time in custody either by way of remand or as part of a sentence.

29 For the purposes of the applicant's referral to ReStart, relevant background information about the applicant is provided to the Support Organisation by transition coordinators working in the prison system who have assessed the applicant in custody. This information is recorded in a transition plan prepared by the Support Organisation and dated 26 February 2019 ("the Transition Plan").

30 The Transition Plan records that the applicant has been assessed as suffering from a cognitive impairment, namely an acquired brain injury. In addition, the Transition Plan records that the applicant has been assessed as suffering from various mental health conditions, namely anxiety disorder, depressive disorder, obsessive-compulsive disorder, and substance-related and addictive disorder.[26]

31 At the hearing of the application, oral evidence was given by Lee Brooks, a forensic case manager for ReStart. Ms Brooks accepted that she could not confirm the correctness of the cognitive and mental health assessments provided to ReStart as part of the applicant's referral. She further accepted that, should the applicant be granted bail, further psychiatric and neurological assessments of the applicant may be warranted. ReStart would assist with facilitating such assessments.

32 Further, the February Letter records that the applicant has reported to the Services Program that he has suffered numerous assaults in custody. The applicant instructs that 2 such assaults have occurred in the last week alone. That was certainly consistent with the applicant's observable physical condition in court. According to the applicant, the assaults are due to the fact that he is viewed as a paedophile by other prisoners, as a result of the Contested Charges, and the age of his alleged victim.

33 In response, the prosecution submitted that the applicant is not a vulnerable person under the Bail Act.

D.1.4 Social and rehabilitative supports and accommodation

34 The applicant requires support for issues relating to drug and alcohol use. In January 2019, in screening with the Services Program, the applicant disclosed a history of illicit substance abuse, including:

(1) Regular use of methamphetamines and cannabis in 2018.

(2) An addiction to opioids and cocaine in 2016 and 2017.

The Transition Plan further records that the applicant has engaged in "problematic drug use" including, in addition to the use of the above substances, the use of dimethyltryptamine.

35 Further, in his January 2019 screening with the Services Program, the applicant disclosed excessive alcohol consumption - namely, the consumption of between 8 and 18 drinks a day, 2 or 3 times a week - throughout 2018.

36 The applicant has now spent 5 months in custody. The applicant reports that this is the longest period he has abstained from the use of alcohol and illicit substances.

37 Counsel for the applicant submitted that, should the applicant be granted bail, there would be appropriate supports available to address his issues with drug and alcohol abuse.

38 The February Letter states that, should the applicant be granted bail, the applicant would be supported to engage with a drug and alcohol counselling service. The Services Program has recommended the applicant continue voluntary engagement for drug and alcohol treatment at ReGen Drug and Alcohol Services in Footscray ("ReGen"), with which the applicant has previously completed non-residential drug and alcohol programs. Further, the applicant has expressed interest in pursuing a long-term residential drug and alcohol rehabilitation program. Should the applicant be granted bail, he would also receive outreach support from the ReStart Program for 3 months in respect of identified "transitional support domains", 1 of which relates to drug and alcohol use. Ms Brooks, in her evidence, stated that, as part of that support, ReStart would make an appointment for the applicant for a re-assessment with ReGen, after which he may access ongoing drug and alcohol counselling from ReGen, and, if referred by ReGen staff, other relevant services and programs offered by ReGen.

39 In response, counsel for the prosecution submitted that it should be doubted, given the applicant's significant history of poly-substance abuse, that voluntary engagement with drug and alcohol treatment could constitute appropriate support. The prosecution expressed concerns about any grant of bail not supported by stringent drug and alcohol screening and supervision.

40 When this was raised with counsel for the applicant, any potential bail condition of mandatory drug screening was resisted to the extent it would require the applicant to meet the costs of such testing, on the ground that the applicant does not have the financial capacity to meet those costs. In essence, the applicant's position was that, if bail were granted, the applicant's ability to comply with his bail conditions ought not be jeopardised by his impecuniosity.

41 The applicant also requires accommodation support. Prior to his arrest, the applicant resided at Flagstaff Crisis Accommodation, an emergency accommodation service operated by the Salvation Army and located at 9 Roden Street, West Melbourne. Previously, the applicant had been homeless for the first half of 2018.

42 In her evidence, Ms Brooks explained that ReStart would provide accommodation support for the applicant, should he be granted bail. That support would ordinarily comprise an initial night's motel accommodation, followed by ongoing accommodation arranged with a crisis accommodation access point the following day. However, if ongoing accommodation could not be immediately secured through the crisis accommodation access point, ReStart would maintain the applicant's motel accommodation until ongoing crisis accommodation could be secured. Further, Ms Brooks gave evidence that such accommodation support would be made available to the applicant through to the contested hearing on 3 June 2019, notwithstanding that this exceeded ReStart's usual 3 month support period by a few days.

43 Counsel for the applicant submitted that, in respect of the Contested Charges, and in particular the charge of child stealing, the prosecution's case suffers from significant weaknesses. It is sufficient for the purposes of these reasons to address the most serious of the Contested Charges, namely the charge of child stealing.[27]

44 The elements that must be established to make out the charge of child stealing include, relevantly, that the accused:

(1) Took a child out of the possession of the person with lawful care of the child ("the Possession Element").[28]

(2) Intended to take a child, known or believed to be under the age of 16, out of the possession and against the will of the person with lawful care of the child ("the Intention Element").

45 Counsel for the applicant submitted that evidence given by the informant at the Second Application hearing, and, particularly, certain concessions made by him under cross-examination, indicated that the prosecution would be incapable of establishing the Possession Element or the Intention Element, and so would be incapable of making out the charge of child stealing.

46 To elaborate, it was submitted that the prosecution would be incapable of establishing the Possession Element given the informant's somewhat vague evidence concerning whether the victim was in the possession or custody of her parent or legal guardian at the time of the alleged offending.

47 Further, counsel for the applicant submitted that the prosecution would be incapable of establishing the Intention Element, as the evidence did not establish that the applicant knew the victim's age at the time of the alleged offending. In this regard, counsel for the applicant directed attention to concessions made by the informant at the Second Application hearing, including the following:

(1) The applicant encountered the victim "in the vicinity" of a licensed venue.

(2) There was no evidence that the victim was dressed in a manner that would indicate that she was younger than 16 years of age.

(3) The applicant did not ask the victim her age until after the police intercepted the applicant, which occurred soon after the applicant picked up the victim.

48 In response, the prosecution disavowed any concession that that the victim was not in the possession of her parent or legal guardian at the time of the alleged offending. The prosecution contended that the Possession Element could be established notwithstanding the physical distance between mother and victim. It was submitted that the evidence will show they were engaged in a dispute, the victim's mother remained "in the vicinity" of the victim, and the mother continued to attempt to exercise lawful control over the victim at the time of the alleged offending.

49 Further, counsel for the prosecution contended that the evidence was capable of establishing the Intention Element. Notwithstanding that there is no evidence as to how the victim was dressed at the time of the alleged offending, counsel for the prosecution contended that photographs of the victim posted to social media indicate that it should have been readily apparent to the applicant that she was younger than 16 years of age at the time of the alleged offending. In support of this position, the prosecution tendered a photo of the victim posted to the victim's Facebook account shortly after the events the subject of the Contested Charges. However, the prosecution was only able to inform the court when that photo was posted, and not when it was taken.

50 In response to this evidence about the appearance of the complainant, the applicant tendered another photo of the victim posted to the victim's Facebook account on 8 December 2018. It was accepted by the prosecution that this was a photo of the victim. This photo readily demonstrated that the victim could appear to be 16 years or older, noting also that the alleged offending occurred in the evening.

51 If not granted bail, then by the time of the contested hearing on 3 June 2019, the applicant would have served 243 days in custody.

52 Counsel for the applicant submitted that if the Contested Charges were not made out, as counsel for the applicant submitted was likely,[29] then that time in custody would exceed the applicant's likely sentence.

53 Counsel for the prosecution made no submissions to the contrary on this point, save that this did not constitute exceptional circumstances given the severity of the charges, and in particular the Contested Charges.

54 In the circumstances outlined above, counsel for the applicant also submitted that the prosecution persisting with the Contested Charges was preventing the orderly resolution of the outstanding issues and amounted to an abuse of process.

55 This submission was implicitly addressed by counsel for the prosecution's submission that the Contested Charges are capable of being made out.[30]

56 The applicant noted that he had never failed to answer bail in the past. Whilst the prosecution did not submit to the contrary, it noted that the applicant has been previously charged with offences, including the charges the subject of this bail application, whilst on bail or on summons.

57 The applicant noted the absence of any evidence of the victims' attitudes towards the applicant being granted bail.

58 The prosecution noted that the applicant had either engaged in family violence or contravened family violence intervention orders on 7 occasions between 2008 and 2018.

59 Whilst the applicant did not submit to the contrary, he noted that he is no longer subject to any family violence intervention orders, and that his most recent alleged breaches of family violence orders have not involved violence, or threatening or abusive behaviour, but rather violations of contact and communication restrictions.

60 The applicant also emphasised his difficult personal circumstances. In the last 2 years, he has experienced the breakdown of a long-term romantic relationship and the loss of stable employment, and undergone a period of homelessness. It was common ground that the applicant had no stable job or accommodation to return to.

61 Counsel for the applicant submitted that granting the applicant bail would not constitute an unacceptable risk, for 3 reasons. First, the applicant does not pose an unacceptable risk of re-offending as he lacks a significant criminal history, and, significantly, lacks any criminal history of offences similar to the Contested Charges.[35] Secondly, the availability of the social supports described above[36] would mitigate, and render acceptable, any risk of re-offending. Thirdly, it was submitted that bail conditions could be imposed by the court to further mitigate any risk.

62 In response, counsel for the prosecution contended that it was unnecessary to consider whether the applicant presented an unacceptable risk because exceptional circumstances had not been shown. Alternatively, it was submitted that, if granted bail, the applicant would be an unacceptable risk of endangering the safety or welfare of any person and committing an offence while on bail.[37] This was said to be so for 2 reasons. First, the applicant poses a high risk of re-offending given that the alleged offending comprises multiple offences committed in short succession, and whilst the applicant was already on bail. Secondly, the applicant poses a high risk to the community given the gravity of the alleged offending, the effect of the alleged offending on the victims, and that the alleged offending occurred whilst the applicant was intoxicated and affected by an illicit substance.

63 Further, and on a more general level, the prosecution submitted that, in assessing whether or not there was an unacceptable risk, the court should treat the applicant's alleged offending as extending to offending other than the alleged offending the subject of the present charges. In particular, the prosecution submitted that the court should consider the applicant's alleged offending as consisting of 2 groups_._ The first group comprises the applicant's "overall alleged offending" including the alleged offending on 2 February 2018,[38] but more significantly, the alleged offending on 2 and 3 October 2018. This includes the charges the subject of this application, but also the charges for which the applicant was on bail at the time of the most recent alleged offending.[39] The second group comprises the applicant's alleged offending between 16 March and 5 April 2018, which relates to alleged contraventions of orders and notices under the Family Violence Protection Act, for which the applicant was subject to summons at the time of the most recent alleged offending.[40]

64 Furthermore, the prosecution emphasised the nature and alleged seriousness of the charges. In particular, the prosecution submitted:

(1) The offences of child stealing and false imprisonment are very serious as they involve deception. It is alleged that the victim was enticed into a stolen vehicle by the applicant acting under false pretences.

(2) The applicant failed to come to a stop when directed to do so by the police.[41]

(3) Driving offences of themselves are very serious as they demonstrate a blatant disregard for the safety of the public. Here, this was exacerbated by the fact that the applicant was under the influence of alcohol and illicit substances while driving.

65 Finally, the prosecution submitted that there were not adequate social supports available to the applicant to mitigate the risk of further offending. The prosecution emphasised that the applicant was unemployed, lacked stable accommodation, and had a history of drug and alcohol abuse. Further, counsel for the prosecution submitted that it should be doubted that the applicant would be eligible for the support for which he had been referred to ReStart, as he had been in custody for more than 3 months.[42] However, Ms Brooks clarified in her evidence that the applicant would be entitled to support from ReStart as a remandee should he be granted bail.

66 It is now necessary to engage in the 2-step process prescribed by the Bail Act.

67 First, having considered the surrounding circumstances, including those outlined above, and each of the matters set out in s 3AAA of the Bail Act, I am of the opinion that exceptional circumstances do exist in this case.

68 The criminal history of the applicant is far from extensive and is at the lower end of severity.

69 Further, the applicant is being subjected to exceptional treatment while he is being incarcerated. There can be little doubt that this treatment involves serious, repeated violence. There was no suggestion by the prosecution that the applicant's visible injuries were inflicted other than in accordance with the applicant's account of repeated recent assaults in custody. The applicant's circumstances in this regard are entirely unsatisfactory.

70 Although the applicant has had some substance abuse treatment in the past which has been unsuccessful, he has now had an extended period of abstinence. Further, he now will have available to him professional, co-ordinated outreach support to assist in his rehabilitation. Furthermore, I am satisfied on the evidence that he can now expect to have stable accommodation made available to him until the contested hearing on 3 June 2019. This removes the risk of any recurrence of the state of homelessness the applicant has previously endured, at least until the hearing of the Contested Charges.

71 In addition, at present, there are serious questions about the strength of the prosecution's case in respect of at least the charge of child stealing pursuant to s 63(2) of the Crimes Act. The evidence currently before this court raises doubts about the prosecution's ability to make out the Possession and Intention Elements of the child stealing offence. In particular, photographic evidence provided to the court by the applicant shows that the complainant might have reasonably been understood to appear to be 16 years of age or more. The alternative photographic evidence sought to be relied upon by the prosecution in this regard lacked probative value given that the evidence of the photo relied upon was not accompanied by evidence of when that photo was taken. The photographic evidence suggests there may be difficulties in establishing the Intention Element of the child stealing offence, especially in circumstances where it appears that no photographic evidence of the victim's appearance was collected by police at the time of the events the subject of the Contested Charges. Although I say nothing about the possible strength of the prosecution's case on the contested hearing (noting a statement from the victim's mother has not been taken to date), the evidence presently before the court does not suggest the prosecution's case, at least for the serious charge of child stealing, is a strong one.

72 As a result, there is a substantial risk that the length of time the applicant will spend on remand will exceed any custodial sentence he might receive upon the hearing of outstanding matters, including the Contested Charges.

73 Secondly, having considered again the surrounding circumstances, including the matters outlined above, I am also of the opinion that there is no unacceptable risk of the sort identified by the prosecution, provided that appropriate conditions, identified below, are imposed. These conditions will result in the applicant obtaining stable accommodation and appropriate treatment for his present condition. In these circumstances, any risk the applicant represents is not unacceptable.

74 For the reasons stated, bail will be granted on the applicant's undertaking to attend at 9.30 am on 3 June 2019 at the Broadmeadows Magistrates Court and on him undertaking to comply with the following conditions:

(1) The applicant reside at such place or places as directed by the Restart program manager or staff from time to time.

(2) The applicant follow the appropriate treatment as directed and obey all lawful directions of the ReStart program manager and staff.

(3) The applicant submit to random drug testing as required upon request from the ReStart program manager or staff as soon as reasonably possible but, in any event within 24 hours of the request, provided that the applicant is not required to meet the cost of any such testing.

(4) The applicant not use a drug of dependence as defined under the Drugs Poisons and Controlled Substances Act 1981 (Vic) unless prescribed, and, if prescribed, to obey the prescribed doses.

(5) The applicant arrange for copies of results of any random drug testing conducted at the direction of ReStart to be provided to the informant, Senior Constable Michael Fawcett, or his nominee.

(6) The applicant not contact witnesses for the prosecution except for the informant or his nominee.

(8) The applicant not attend any points of international departure.

[1] The applicant was born on 12 August 1982.

[6] On the relevant charge sheet, the applicable Road Safety Act provision is incorrectly listed as s 49(1)(bc).

[10] The applicant has been charged with indictable offences, namely child stealing, false imprisonment, theft of a motor vehicle, and theft: see pars 2(1)-2(4) above. Because these offences were allegedly committed while the applicant was on bail for other indictable offences (theft of a motor vehicle and committing an indictable offence whilst on bail) they are Schedule 2 offences: see Bail Act, sch 2, item 1(a). At the time those Schedule 2 offences were allegedly committed, the applicant was on bail for committing an indictable offence whilst on bail, which is also a Schedule 2 offence since it is an offence against the Bail Act: see Bail Act, sch 2, item 30.

[13] See Re Sam [2017] VSC 91, [22] (Beach JA); Application for bail by Kaya [2016] VSC 712, [38]; Re John McDonald [2010] VSC 217, [10] (Kaye J).

[14] Armstrong v R [2013] VSC 111 [31] (Lasry J); Re Whiteside [1999] VSC 413, [10] (Warren J).

[15] Re CT [2018] VSC 559, [64] (Champion J).

[16] See Re Bail Application by Moloney (unreported, 13 October 1990) (Vincent J), referred to with approval in numerous cases, including Re Naughten [2018] VSC 806, [45] (Champion J), Re CT [2018] VSC 559, [66] (Champion J), and Armstrong v R [2013] VSC 111, [31] (Lasry J).

[24] See Bail Act, ss 3AAA(1)(k) and 3AAA(1)(l).

[25] However, in addition to these matters, see also the matters at pars 5 and 6 above and pars 58 and 59 below.

[26] By contrast, the February Letter does not detail any formal mental health diagnoses, but notes that the applicant has reported periods of low mood linked to incidents of assault.

[27] While unnecessary to separately address here, the applicant also submits that the prosecution's case in respect of the offence of false imprisonment (and, therefore, the related bail offence) is also weak. In particular, counsel for the applicant submitted that the evidence presently before the court suggests that the prosecution will have difficulty establishing a necessary element of the false imprisonment offence: namely, that the applicant intended to deprive the victim of her liberty. Specifically, the applicant submits that the prosecution will face difficulties proving that the applicant failed to stop the vehicle and permit the victim to exit it as soon as was practical after becoming aware that she wished to exit.

[28] See James v The Queen (2013) A Crim R 96, 102-103 [26]-[29] (Maxwell P and Buchanan JA).

[37] Bail Act, s 4E(1)(i) and (ii).

[38] See the charges detailed at par 5 above.

[39] See the charges detailed above at pars 2 and 3.

[40] See the charges detailed above at par 6.

[41] But also see fn 27 above.

[42] This was said to be because ReStart is a program open to "remandees and / or prisoners with a sentence of 3 months or less".

Violence Prevention Act 2008

Violence Protection Act 2008

Poisons and Controlled Substances Act 1981

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Legislation Cited (5)