Application for Bail by Vasko Stankovski [2016] VSC 310 (2 June 2016)

2 After his arrest the applicant was conveyed to the Heidelberg police station, charged, and remanded in custody. Earlier, on 23 September 2015, the applicant's undertaking of bail on a charge of handling stolen goods had been extended with reporting and residence conditions. The offences with which the applicant was charged on 11 November 2015 were alleged to have occurred whilst he was at large awaiting trial for that indictable offence. The applicant did not apply for bail at that time, and police successfully applied to revoke outstanding bail and on 11 November 2015, the Heidelberg Magistrates Court remanded the applicant into custody.

3 On 12 April 2016, the applicant was sentenced to five months imprisonment on a consolidated plea hearing. The magistrate declared a period of pre-sentence detention and the sentence imposed as having already been served. The applicant was then classified as a remand prisoner and held in custody on the charges earlier referred to.

4 An application for bail was listed in the Heidelberg Magistrates Court on 13 May 2016. On that day, the applicant was charged with four further offences, being theft of a motor vehicle, handling stolen goods, negligently dealing with proceeds of crime, and recklessly dealing with proceeds of crime.

5 The applicant contended before the magistrate that the offer of a place in Odyssey House Victoria's Therapeutic Community Residential Rehabilitation Program to run for between 12 and 16 months, under intensive supervision with reporting conditions, would adequately mitigate the risk that the applicant might fail to appear, commit further offences, or endanger public safety should bail be granted.

6 The magistrate was not satisfied that the applicant had shown sufficient cause why his detention in custody was not justified as there was an unacceptable risk of the applicant committing further offences and endangering public safety. Bail was refused.

7 The applicant now applies to this Court for bail.

8 As a result of being charged with indictable offences that are alleged to have occurred while the applicant was at large awaiting trial for another indictable offence, the applicant is required to show cause why his detention in custody is not justified pursuant to s 4(4)(a) of the Bail Act. In addition, as a result of being charged with two offences against ss 30A and 30B of the Bail Act, the applicant is also required to show cause pursuant to s 4(4)(d) of that Act.

9 The offences, with which the applicant was charged on 11 November 2015, arose out of a search that was conducted on that day by police at premises suspected of being used to produce false registration plates for motor vehicles. The applicant was found hiding under a printing press with a co-accused, Cheyanne Davis. A number of items suspected of having been stolen were located.

10 Briefly, the sequence of events in relation to the offending prior to this search was that police allege that on 21 September 2015 the applicant stole a vehicle from a railway station, and later stole petrol and removed the vehicle's registration plates. On 23 September 2015, as earlier noted, the applicant's undertaking of bail was extended by a magistrate. The applicant's bail conditions included reporting to the Epping police station on Monday and Thursday and residing at an address in Thomastown. Police allege that the applicant failed to comply with any of his reporting conditions and did not regularly reside at the nominated address. Further, while the applicant was on bail he committed indictable offences.

11 On 16 October 2015, the police allege that the applicant stole a car from a street in Brighton and a wallet from inside that vehicle. The following day, after the victim's son observed the vehicle in Cheltenham, police attempted to intercept the applicant who failed to stop at a stop sign and drove through operating train boom gates at Abbott Street, Sandringham.

12 On 13 October 2015 police allege a vehicle was stolen from the long-term car park at Melbourne Airport. When that vehicle was recovered, the applicant's fingerprints were lifted from a registration plate and there were items located in the vehicle in the name of the applicant and his cousin, Borce Juntovski. Mr Juntovski was sentenced to a term of 4 months imprisonment on a charge of handling stolen goods in relation to this vehicle.

13 On 6 November 2015, the applicant was identified as the driver of a stolen black Range Rover in Preston. When police attempted to intercept the vehicle, police allege the applicant drove at the unmarked police vehicle, colliding with the front passenger side, causing significant damage. The applicant left the scene, colliding with another vehicle when doing so. The Range Rover was later recovered with a missing engine cover that was found, together with the keys to the vehicle, in the applicant's possession on his arrest.

14 As a result of the search on 11 November 2015 at Crown Street, Richmond, police found a number of items that have given rise to the remaining charges brought against the applicant. The applicant's co-accused on that occasion, Cheyanne Davis, pleaded guilty to a charge of theft of a motor vehicle and was sentenced to imprisonment for 30 days. Another co-accused, Robert Morrison, has been charged with a number of dishonesty offences that are yet to be heard.

15 It does not appear that the applicant made any admissions in a record of interview and he has pleaded not guilty to all of the charges, denying them. Nevertheless, the police case against the applicant appears strong and, in argument on this application, the applicant did not suggest otherwise.

16 The applicant was born on 18 October 1980 and is 35 years of age. He has a significant criminal history. The LEAP records of his previous convictions run to 23 pages, arising from 21 separate court appearances before an adult court between February 1998 and April 2016. They include convictions for dishonesty offences, Bail Act offences, serious traffic offences, possession of a controlled weapon and possession of drugs.

17 Several of these prior convictions are presently relevant. I have already referred to the sentence of imprisonment imposed by the Melbourne Magistrates Court on 12 April 2016 for dishonesty offences and contravening a conduct condition of bail. On 23 April 2014 the applicant was sentenced to an aggregate term of six months imprisonment, three months of which was suspended for 12 months for serious driving offences, possession of a controlled weapon and possession of housebreaking implements. On 12 May 2015, that suspended sentence was wholly restored following the applicant's conviction on charges of driving whilst disqualified and going equipped to steal. On the former charge, the applicant was sentenced to one month imprisonment, and on the latter charge the applicant was convicted and released on a community corrections order for a period of 12 months. That order required the applicant to submit to assessment and treatment, including testing, for drug rehabilitation.

18 On 2 August 2012, the Melbourne County Court allowed an appeal by the applicant against a sentence imposed on charges that included failing to answer bail and dishonesty offences. An aggregate term of eight months imprisonment was reduced to an aggregate term of six months imprisonment.

19 The informant's enquiries with the Reservoir Community Correctional Service have revealed that the applicant allegedly breached the terms of the May 2015 community corrections order on a number of occasions by failing to attend at mandatory appointments and failing to complete a road trauma course. Although it was a condition of the order, the applicant was deemed unsuitable for drug and alcohol counselling.

20 Under s 4(4) of the Bail Act, the applicant is required to show cause why his continued detention in custody is not justified. I need not enter the debate whether an application for bail, in such a case, involves a one-stage or a two-stage process, as recently considered by the Court of Appeal in Robinson v R.[1] That issue is largely academic for this reason. Those parts of the applicant's criminal history that I have recited, and, in particular, the fact that at the time of his arrest he was already on bail and subject to other separate proceedings, raise a strong prima facie case that, in the absence of any other consideration, there would be a significant risk that the applicant might re-offend if he were to be released on bail.

21 The central question becomes whether the applicant has demonstrated circumstances that either reduce that risk to an acceptable level, or which would otherwise justify his release on bail.

22 The informant submitted that the applicant cannot so demonstrate for the following reasons.

(a) The applicant's prior criminal history points strongly to the conclusion that he is an unacceptable risk.

(b) The applicant's conduct in respect of some of the charged offences and as evident from his prior criminal history, demonstrates a propensity to place the public at risk, both by his general manner of driving dangerously and by his particular attitude of deliberately driving in a manner to evade police interception.

(c) The applicant has previously failed to comply with bail conduct conditions and has failed to answer bail.

(d) The applicant has breached conditions of a prior community corrections order.

(e) The applicant's drug problem primarily involves the use of ice, and the informant submits that the Odyssey House proposal of supervised accommodation is not likely to provide sufficient support for the applicant to cease his addiction and the concomitant offending to feed his addiction. The applicant will probably abscond from the facility. The applicant's history does not demonstrate any commitment to drug rehabilitation, despite the increasing prospect of significant imprisonment. The applicant is unlikely to be motivated to accept the directions given to him at the facility. The informant submitted that the facility at Odyssey House in Lower Plenty is not suitable. The physical features of Odyssey House, particularly its lack of fencing, and the limited commitment given in respect of supervision are not acceptable. There is a reasonable likelihood that the applicant could abscond from the facility without his absence being promptly detected.

(f) The applicant's record demonstrates that the threat of a real and substantial term of imprisonment for breach of bail conditions or court-ordered supervision does not motivate the applicant and it should not be assumed that the prospect of returning to jail for such breaches, will significantly influence the applicant not to commit further offences.

(g) Although the applicant has denied the offending, the prosecution case is strong. In this respect the informant refers to the commonality in the conduct evident for each stolen vehicle, particularly in the involvement of false registration plates used to avoid interception and apprehension by police. One vehicle also had false compliance and build stickers attached to it and the premises where the applicant was arrested were being used to manufacture such stickers.

(h) Finally, there is a significant prospect that, if found guilty, the applicant will serve a lengthy term of imprisonment. On each occasion that he has been before the court since 28 June 2006, the applicant has either been imprisoned or received a suspended sentence, with a maximum term of imprisonment during this time of 18 months.

23 The applicant submitted that he should be released on bail to enable him to undergo drug rehabilitation treatment with the Odyssey House Therapeutic Community Residential Rehabilitation Program. He submitted that this rehabilitation program is of the 'gold standard' amongst rehabilitation programs in the community, is intensely supervised on an ongoing basis and would include accommodating reporting conditions at the Heidelberg police station, although the applicant submitted that to suit the convenience of the program at Odyssey House reporting should be limited to once per week. I was informed that an arrangement is in place for transportation of the applicant on his release from remand to the Richmond office of Odyssey House for immediate admission into residential rehabilitation. However, such release, should I admit the applicant to bail, should be deferred until Monday 6 June 2016 to co-ordinate with this arrangement.

24 This precise basis for an application for bail was considered and rejected by a magistrate on 13 May 2016. The applicant does not point to any new, or different, facts or circumstances.

25 The applicant was deemed to be suitable to attend the residential rehabilitation program according to a certificate dated 30 May 2016, provided by an Odyssey House therapist, Michael Anderson. Mr Anderson's certificate does not explain on what basis the applicant has been deemed suitable for this program and that, in my view, is a matter which in the circumstances of this application should have been explained. It is not apparent that the applicant has participated in any face-to-face assessment, or what conclusions can be drawn from any triage assessment of him. Further, apart from such inferences as may be drawn from the applicant's prior criminal history, there is no satisfactory evidence before the court of the nature and extent of the applicant's drug addiction, or of other problems or disorders that may be relevant when considering appropriate drug rehabilitation. There is no evidence, beyond a presumption of unavailability, that during the last seven months the applicant has been abstinent from drugs. There is no evidence of any assessment of the applicant's commitment to rehabilitation, which is clearly put in issue by past events. No opinion is expressed to the court of a positive prognosis for rehabilitation on completion of the residential program.

Residents at the Odyssey House Therapeutic Community learn conflict resolution skills, relapse prevention, group work and are allocated additional self and community focused responsibilities as they progress through program levels. Residents also undergo regular supervised urine drug screening throughout their stay at Odyssey House.

Clients are physically sighted every two hours and marked off on a roll, from 7:00am till 10:00pm. Overnight securities are done every two hours to ensure no one has left the building.

27 Mr Miller, who appeared on behalf of the applicant, submitted that if the applicant were released on bail into this drug rehabilitation program, the court had good reason to be confident that he would not re-offend whilst on bail.

28 In essence, the applicant submitted that, notwithstanding his past history, there had been a change in his circumstances since his arrest in November of last year. Since then, the applicant has spent almost seven months in jail. The applicant submitted that appropriately strict conditions of bail to support residential rehabilitation would provide the applicant with an opportunity to engage in rehabilitation, address issues linked with offending behaviour and address concerns of risk generally. Such conditions would be sufficient to mitigate risks of re-offending, failing to appear and answer bail and risks of endangering public safety. When all relevant factors were considered in combination, the court could have some assurance that the applicant's continued detention on remand was not necessary.

29 I return to what I earlier described as the critical issue - whether the matters relied on by the applicant on this application are sufficient to offset what would otherwise be substantial, and well justified, concerns that if the applicant were released on bail he might further offend or fail to answer his bail.

30 The informant's concerns are well justified. The offences with which the applicant has been charged were committed while he was on bail on which he had just been released. The applicant has prior convictions for failing to answer bail, and contravening bail conditions. He breached the terms of a suspended sentence that was imposed on 23 April 2014 and was restored on 12 May 2105. At that time a 12 month community corrections order was also made, which was extant at the time of his arrest and in which he was allegedly in breach. Those matters alone are sufficient to give rise to a real concern that if the applicant were released on bail, he would not comply with the conditions of that bail.

31 In addition, and importantly, the applicant has previously demonstrated a repeated disregard for complying with the law. His long list of previous convictions, to which I have referred in brief summary, constitute a lengthy pattern of re-offending. The relevant offending in this case occurred while the applicant was still subject to other charges, and to the current community corrections order. It is clear that the applicant does have an established drug addiction that places him at further risk of re-offending, unless appropriately treated.

32 The above matters, taken collectively and without further analysis of other matters earlier referred to, are of significant weight. I well understand, and appreciate, that it is of prime importance that the applicant undertake and receive appropriate treatment for his longstanding drug addiction and I accept that in appropriate circumstances it is desirable that an applicant be given the opportunity to commence rehabilitation whilst on bail. I am aware of four cases that are authority for that proposition; Tran,[2] Haddara,[3] Robinson[4] and Rajic.[5]

33 I am unable to grant the applicant that opportunity for the following reasons.

34 The prosecution carries the burden of proving that an unacceptable risk exists. In this case I consider they have discharged that burden. I am satisfied on the balance of probabilities that I must refuse bail under s 4(2)(d) of the Act because there is an unacceptable risk of the applicant re-offending. It is not necessary that I express a view on whether there is also an unacceptable risk that the applicant would fail to answer his bail or endanger the safety or welfare of members of the public.

35 It is also not necessary for me to express a view about whether or not the applicant has shown cause, as required by s 4(4) of the Act, because I am satisfied that the prosecution has established unacceptable risk. It follows either that the applicant has not shown cause, or alternatively, even if he has shown cause, he should still not be admitted to bail.

36 In this case there is the prospect of a bed as an inpatient at a rehabilitation facility, as well as common bail conditions including obeying the lawful directions of staff at Odyssey House, obeying the lawful directions of any treating doctor or program director associated with the program, a prohibition on contacting any witness for the prosecution except for the informant, an obligation to submit to random drug and alcohol testing at the request of any member of Victoria police, passport surrender, and a prohibition on attending any place of departure.

37 Although these factors in combination have considerable merit, they are not sufficient to persuade me that in the circumstances of this application, the applicant has demonstrated there exists sufficient prospect that conditional bail will either reduce that risk to an acceptable level, or which would otherwise justify his release on bail, that is, that his continued detention is not warranted.

38 I am not persuaded by the evidence in respect of the applicant's prospects for rehabilitation. There is a material difference between proving that he has a place in a rehabilitation program and demonstrating prospects for successful rehabilitation that could ameliorate the relevant risk. It is the questions that have been left unanswered about the applicant's drug habit and his prospects for rehabilitation that ultimately would provide evidence of ameliorated risk should the applicant be admitted to bail.

39 I do not think the prosecution case is weak, and given the nature of the charges, the applicant's antecedents, and the imminent determination of the charges scheduled for a three-day contested hearing on 22 August 2016, there is no real prospect that time spent with on remand will be dead time. This consideration is really no more than an absence of a factor that can often be highly persuasive on this sort of application.

40 For these reasons the application will be refused.

[1] [2015] VSCA 161.

[2] Re an application for bail by Mae Loc Tran [2008] VSC 191.

[3] An application for bail by Fadi Haddara [2014] VSC 284.

[4] Robinson v The Queen [2015] VSCA 161.

[5] Re Rajic [2016] VSC 27.