CRIMINAL LAW - Application for bail - Charges of persistent contravention of a family violence intervention order, contravening a family violence intervention order and bail offending - Allegations of family violence - Delay - Seriousness of the offending - Availability of Court Integrated Services Program support - Exceptional circumstances not established - Bail refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA - Cases cited: Roberts v The Queen

1 This is an application for bail by Benjamin Strachan (the 'applicant').

2 The applicant has been in custody on remand since 12 August 2021, having been charged on that date by First Constable Laura Kemp with one charge of persistent contravention of a family violence intervention order ('FVIO'),[1] seven charges of contravening a FVIO,[2] one charge of committing an indictable offence whilst on bail[3] and seven charges of contravening a conduct condition of bail (the 'informant Kemp matter').[4] These charges were alleged to have occurred between 31 July 2021 and 12 August 2021.

3 The following day, on 13 August 2021, the applicant was refused bail in the Geelong Magistrates' Court on the basis that he posed an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person, and interfering with a witness or otherwise obstructing the course of justice.

4 On 18 August 2021, the applicant filed an application for bail in this Court. The matter is next listed for a contest mention in the Geelong Magistrates' Court on 12 October 2021. On the basis of enquiries made of the Geelong Court, a contested hearing for these matters could be accommodated in that Court in January or February 2022.

5 At the time of the alleged offending in the informant Kemp matter, the applicant was on bail and summons in relation to four other matters. He was also the respondent to a final FVIO, where his wife and four children were named as the affected family members. Prior to the imposition of the final FVIO, the applicant had been subject to both a family violence safety notice ('FVSN') and an interim FVIO. The procedural background to these matters is as follows.

6 On 30 September 2020, the applicant was charged on summons with unlicensed driving and using an unregistered vehicle, after he was intercepted driving in Highton on 12 August 2020 (the 'informant Barker matter').

7 On 29 March 2021, there was an alleged incident between the applicant and his wife, resulting in police issuing a FVSN with full no-contact conditions, naming the applicant as the respondent and his wife and children as the affected family members.

8 On 6 April 2021, an interim FVIO was made in the Geelong Magistrates' Court, naming the applicant as the respondent and his wife and children as the affected family members. The FVIO contained full conditions, with limited exceptions including contact in the context of making child arrangements. A minor variation to the interim FVIO was made on 9 April 2021.

9 On 13 April 2021, the applicant was charged with eight charges of contravening a FVSN, two charges of persistent contravention of an interim FVIO and four charges of contravening an interim FVIO (the 'first informant Meath matter'). These charges relate to events involving the applicant's wife alleged to have occurred between 30 March and 12 April 2021. The applicant was granted bail by police that same day on the condition that he comply with 'all conditions imposed by court and relevant to [his wife and children]'.

10 On 24 April 2021, the applicant was charged with one charge of stalking, two charges of harassing a witness, six charges of contravening an interim FVIO, one charge of contravening an interim FVIO intending to cause harm or fear, two charges of persistent contravention of an interim FVIO, two charges of contravening a conduct condition of a bail, four charges of committing an indictable offence whilst on bail and one charge of trespassing (the 'second informant Meath matter'). These charges relate to events alleged to have occurred between 15 and 24 April 2021, similarly involving the applicant's wife. The applicant was remanded in custody.

11 On 26 April 2021, the applicant applied for bail in the Geelong Magistrates' Court. Bail was refused on the basis that he failed to establish exceptional circumstances, and was found to be an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person, interfering with a witness or otherwise obstructing the course of justice in any matter, and failing to surrender into custody in accordance with the conditions of his bail.

12 On 30 April 2021, whilst on remand in the second informant Meath matter, the applicant was charged with driving with more than the prescribed concentration of drugs in his oral fluid, and having more than the prescribed concentration of drugs in his oral fluid within three hours of driving (the 'informant Dekker matter'). These charges relate to an incident on 14 March 2021, when the applicant was intercepted by police whilst driving in Geelong.

13 On 18 May 2021, the applicant made a further application for bail in the Geelong Magistrates' Court. The application was refused on the basis that he failed to establish exceptional circumstances that justified the grant of bail.

14 On the same day, a final FVIO with was made in the Geelong Magistrates' Court, naming the applicant as the respondent and his wife and children as the affected family members. The FVIO remains in effect until 17 May 2023, and contains full conditions with limited exceptions, including to allow contact in relation to child arrangements.

15 On 9 July 2021, the applicant filed an application for bail in this Court. The application was listed for hearing on 15 July 2021, however, the hearing date was vacated after it became apparent that the applicant had an extant further application for bail listed in the Geelong Magistrates' Court on 19 July 2021.

16 On 19 July 2021, the applicant's further application for bail proceeded in the Geelong Magistrates' Court. Bail was granted subject to various conditions, including that the applicant comply with the FVIO.

17 The complainant in this matter is the applicant's wife, CS. She and the applicant were in a relationship for approximately 10 years, before separating in March 2021. They share four children together, aged between two and nine years old.

18 As detailed, at the time of the alleged offending the applicant was subject to a final FVIO with full conditions, save for limited exceptions for communications relating to child arrangements. He was also on conditional bail requiring that he comply with the conditions of the FVIO.

19 Between 7:25pm and 7:26pm on 31 July 2021, CS received two missed calls from a phone number that she did not recognise. At 7:46am the following morning, the same number called again. CS answered and the caller said in an aggressive tone, 'can you listen to me?'. It is CS's evidence that she immediately recognised the voice as the applicant's. The same number attempted to call CS again at 7:47am, which CS ignored and then blocked the number. Subsequent inquiries revealed that the number was associated with a payphone said to be in close proximity to the applicant's then residence.

20 On 5 August 2021, CS was driving in Grovedale when a vehicle driving past 'honked' at her. She recognised the vehicle as the applicant's.

21 At 8:30am on 12 August 2021, CS took two of her daughters to school. She later received a text message from an associate, which stated that the applicant had been 'hiding' near the school that morning and had subsequently walked towards the school. The associate sent CS a photo of the applicant and his vehicle. CCTV showed the applicant entering the school grounds.

22 The prosecution case is that the applicant entered the school grounds and spoke to one of his daughters, offering her lollies to 'come with him' and to 'not... tell any grown ups'. The applicant left the school grounds after a teacher walked past.

23 Later that day, at 3:00pm, another teacher at the school observed the applicant 'loitering' outside a classroom. She spoke with the applicant, following which he left the school grounds. As a result of the applicant's attendance that day, the classrooms of both of his daughters were locked.

24 At 4:40pm, the applicant was arrested and transported to Geelong Police Station. He made partial admissions to the alleged offending, confirming that he had attended his daughters' school that morning to tell them that he loved and missed them, and had attended in the afternoon to check on their welfare. He was remanded in custody.

25 This application is governed by the Bail Act 1977 (Vic) ('the Act'). In interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Act.[5]

26 Because the applicant is accused of committing a Schedule 2 offence,[6] whilst on bail for a Schedule 2 offence,[7] he bears an onus of satisfying the Court that exceptional circumstances exist that justify the grant of bail.[8] Unless he can so satisfy the Court, bail must be refused.[9] In considering whether the test is satisfied, the Court must have regard to the surrounding circumstances.[10]

27 The Act does not define what is meant by 'exceptional circumstances'. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:[11]

(a) 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.

(b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.

(c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.

28 I would also add the view recently expressed by their Honours Maxwell P, Niall and Emerton JJA in Roberts v The Queen:[12]

A review of bail decisions in 'exceptional circumstances' cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.

29 If the applicant discharges his burden of establishing exceptional circumstances, the Court must still refuse the application if satisfied by the respondent that the applicant, if granted bail, would pose an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[13] The Court must again have regard to the surrounding circumstances in determining the question of unacceptable risk, and consider whether there are any conditions of bail that could be imposed to mitigate any risk so that it is not unacceptable.[14]

30 Because the applicant is charged with family violence offences, the Court is required to consider whether there would be a risk that, if granted bail, the applicant would commit a family violence offence, and, if such a risk exists, whether it could be mitigated by the imposition of a condition of bail or the making of a FVIO.[15] That is a matter of some significance in this case.

31 The applicant is 42 years old. He was raised in Geelong by both parents, who have since separated. His parents each suffer from their own respective health issues, his father with cancer and his mother with emphysema. Prior to his remand, the applicant was providing regular care to his father.

32 The applicant has had two significant intimate relationships in his adult life, the first of which resulted in two children. Devastatingly, the applicant's second child from that relationship, a daughter, died from choking when she was 18 months old. The applicant's relationship with the mother eventually broke down in this context. The second significant relationship was with CS, with whom the applicant was together for 10 years, interspersed with periods of separation in more recent years. As stated, the applicant and CS have four children from that relationship and have been separated since March 2021.

33 The applicant has a consistent employment history across various industries, including concreting and garbage collecting, as well as working with Australia Post and Ford Motor Company. In 2016, whilst working with timber trusses, he sustained a significant back injury. As a result, the applicant ceased working and commenced home duties. He reports an intermittent habit of drinking to excess from this time, which - together with the broader context of the situation - might be viewed as the catalyst for the deterioration of his relationship with CS.

34 Prior to his remand, the applicant was residing with his adult son in Herne Hill.

35 The applicant was interviewed and assessed by psychologist, Gina Cidoni, via a three-hour videoconference on 4 July 2021. The contents of that interview, together with various forensic and medical documentation provided by the applicant's solicitor, were relied on by Ms Cidoni to prepare a report dated 6 July 2021.

36 In her report, Ms Cidoni sets out the applicant's background in terms of his family, relationship, educational, employment and medical history. Ms Cidoni notes that the applicant was diagnosed with attention deficit hyperactivity disorder as a child. As a young adult, he experienced significant grief and trauma in the context of his daughter's death, following which he did not seek formal treatment or counselling. In more recent years, the applicant is said to have been diagnosed with severe depression, anxiety and chronic adjustment disorder. He also reports engaging in mild suicidal ideation.

37 In addressing the applicant's physical health, Ms Cidoni notes that he also suffers from a pain disorder. This appears to be secondary to his workplace accident, for which the applicant requires various pain medications and ongoing treatments and surgeries. Further, during the applicant's previous remand in May 2021, he was admitted to hospital with chest pain and underwent various testing before being declared safe for discharge.

38 The applicant reported to Ms Cidoni that he has no history of illicit substance use, or abuse of prescribed medications. However, he reported substantial alcohol use following his workplace injury and during periods of separation from CS, and admitted to using alcohol as a 'crutch'.

39 On the basis of her interview with the applicant, the materials provided to her, and various psychometric tests administered, Ms Cidoni formed the view that the applicant is currently suffering from a major depressive disorder, as well as adjustment disorder with anxiety and conduct disturbance, pain disorder and symptoms of post-traumatic stress disorder. In Ms Cidoni's opinion:[16]

These problems emerged following the tragic death of [the applicant's] daughter in 2005 where he never really accessed help.

The work injury of 2016 and difficulties with Workcover and accessing adequate treatment and general coping and maladjustment were thought to have produced an adjustment disorder and exacerbated the major depressive disorder...

Exposure to complex trauma, would have led to heightened physiological and psychological stress reactivity, that undermines [the applicant's] capacity to respond functionally to stressors. He has an intense reactivity to interpersonal stresses [sic] inherent in his psychological makeup. These factors have impaired his ability to exercise appropriate judgement, make calm and rational choices and think clearly.

He requires psychotherapy aimed at increasing his insight about his own functioning and learning strategies to communicate his needs effectively as well as to deal with his own maladjustment. He also needs to continue to address pain management.

Therapy goals should enhance emotional regulation, problem solving, communication skills and interpersonal skills to promote attainment of healthy relationships. He would also benefit with trauma-focused interventions.

40 In terms of assessing risk of future family violence, Ms Cidoni administered the Ontario Domestic Assault Risk Assessment on the applicant. The applicant is said to have fallen within a range where 34% of other persons in that same range have gone on to commit an assault against their current partner, or a future partner, which comes to the attention of police within five years. In Ms Cidoni's opinion, this scoring shows that the applicant poses a low risk of violent offending in a domestic context.

41 The applicant has a criminal history between 2000 and 2012, recommencing in 2019, and predominantly involving dispositions for driving and dishonesty offences. It also includes some more historical dispositions for breaches of court orders, including breaching a community based order in 2002, failing to comply with an intensive correction order in 2008, and breaching a suspended sentence in 2011.

42 The applicant has no formal criminal history involving family violence offending. However, there have been three family violence reports made to police between December 2019 and March 2021, which have not resulted in any criminal charges. These reports can be summarised as follows.

43 On 31 December 2019, the applicant's neighbours contacted police to report concerns for CS's welfare after hearing an argument between the applicant and CS, which they believed to be escalating.

44 On 19 February 2021, the applicant's neighbours again contacted police to report concerns for CS's welfare after overhearing an escalating argument between the applicant and CS. The incident was diffused when CS left the residence.

45 Sometime prior to 29 March 2021, CS reported concerns for her safety to one of her friends, stating that the applicant's behaviours had been escalating. CS and that friend arranged a coded text message for CS to send if she was ever in need of immediate police assistance, so that CS's friend could contact police on CS's behalf.

46 On 29 March 2021, CS's friend received the coded text message and contacted police. Police arrived at the applicant's and CS's residence and overhead the applicant being verbally abusive towards CS. Police spoke to CS, who reported that the applicant had been drinking heavily that day and had been verbally abusive towards her; thrown a bag filled with clothes and shoes at her; and taken her phone and questioned her on its contents.

47 More generally, CS stated that the applicant was intimidating towards their children and had become verbally abusive towards her on a daily basis, and was also violent towards her two or three times a year. CS reported the following further incidents to police:

(a) on 24 December 2020, the applicant was verbally abusing CS in the kitchen of their home when he suddenly pushed her to the ground, causing her to hit her head and temporarily lose consciousness. When CS regained consciousness, the applicant was sitting on top of her and strangling her. CS reported that she could not breathe, and that she suffered from the effects of a concussion over the following 48 hours; and

(b) on 19 February 2021, the applicant smashed the side-mirror on CS's car after she advised him that she wanted to end the relationship.

48 Police arrested the applicant and interviewed him in relation to the aforementioned incidents, following which the applicant was served with a FVSN with full conditions. He was not charged.

49 The applicant relied on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.

Nature and seriousness of the alleged offending

50 It was conceded that the alleged offending, if proven, is persistent in nature. However, it was submitted that the gravity of the offending is low-level, noting that the calls alleged to have been made to CS went largely unanswered, and that the call that was answered did not involve any threats or intimidation, just a request that CS listen to the caller. Further, the allegation that the applicant honked his horn at CS was not said to have been pre-planned, and did not occur in the context of him following CS. Finally, the applicant's attendance at his daughter's school did not involve any violence, threats or intimidation, and the applicant left on his own accord.

51 The applicant acknowledges his attendance at his daughters' school on 12 August 2021, as well as his driving in the relevant location on 5 August whilst on a date with his new partner. However, he denies honking his horn at CS and also denies calling CS, noting that the latter allegations are based on a five-word conversation in which CS is said to have been able to identify his voice. These will be matters that may well be the subject of contest. All that was before me at the application was the police brief and the assertion that certain matters will be in contest.

52 While it was conceded that the applicant was on bail at the time of the present alleged offending, it was noted that his criminal record involves no dispositions for bail offences.

53 The applicant is supported by his adult son from another relationship, Mr Bailey Strachan. The applicant was residing with Bailey Strachan at [redacted] prior to his current remand and proposed to continue residing there if bail were granted. Bailey Strachan was said to be supportive of this arrangement and was present at the application, although he did not give evidence. The respondent did not raise any concerns about the applicant's proposed accommodation.

54 The applicant's father, Mr John Strachan, was recently diagnosed with cancer. He was reportedly due to commence treatment for the same on 18 August 2021. Prior to the applicant's remand, it was intended that he would undertake carer responsibilities for his father, including transporting him to and from treatment.

55 The applicant has been a member of the Manifold Heights Cricket Club ('MHCC') for the last five years, and presently holds the position of Senior Assistant Coach. In a letter dated 7 August 2021, Damian Stephens, President of the MHCC, describes the applicant as a valued member of the MHCC who - in Mr Stephens' experience - has always conducted himself in a respectful and positive manner. Mr Stephens states that the MHCC remains supportive of the applicant through his current situation.

56 The applicant suffers from various mental and physical health conditions, as detailed in Ms Cidoni's the report. He requires further surgical interventions to address his back injury, which cannot be undertaken whilst in custody.

57 Prior to his remand, the applicant was receiving case management in the community through the Court Integrated Services Program ('CISP'), pursuant to the conditions of his bail in the first informant Meath matter. Through CISP, the applicant had been recommended to engage with services in relation to his mental health, family violence and drug and alcohol counselling, and had been referred to 'Bethany Community Support' to engage with grief counselling, parenting courses and a Men's Behaviour Change Program. In a progress report dated 4 August 2021, CISP case manager Joanne Spanos noted that, during her interactions with the applicant, he had presented as polite, well-engaged, able to take direction, and eager to re-commence treatment and counselling.

58 In an updated CISP report dated 24 August 2021, CISP case manager Michael Davis confirmed that, if granted bail, the applicant would continue to be supported by and able to access services and referrals through CISP. The applicant's first case management appointment was scheduled for 31 August, which was to occur via telephone due to current COVID-19 related restrictions. The applicant will also continue to access other services, as already described, through CISP.

59 The applicant has been in custody since his arrest on 12 August 2021. The matter is next listed for a contest mention on 12 October 2021. If the matter does not resolve, it was originally submitted that a contested hearing is unlikely to occur until mid to late 2022, due to the number of issues in dispute and the delays in the Magistrates' Court resulting from the COVID-19 pandemic. That would not seem to be correct. The Magistrates Court have indicated a contested hearing for the applicant's matter could be accommodated in mid-January or mid-February 2022.

60 In view of the applicant's limited relevant prior criminal history, and his stated vulnerabilities, it was submitted that he would be unlikely to receive a custodial sentence if found guilty of the charges against him. However, even if he were to receive a custodial sentence if found guilty, it is submitted that there would be a real risk of his time on remand exceeding any period of imprisonment imposed.

61 In addressing unacceptable risk, the applicant submitted the following:

(a) in Ms Cidoni's assessment of the applicant, she found that he posed a low risk of violent offending in a family violence situation, and found that any risk would be further reduced through appropriate treatments, including psychotherapy and pain management. These treatments are available through CISP;

(b) the applicant has completed his intake assessment for a Men's Behaviour Change Program, and is on the waitlist for parenting programs and grief counselling;

(c) against any assertion that the applicant would pose a risk to his children, the letter of Erin Ross, Advanced Child Protection Practitioner, dated 24 June 2021 is relied upon. In that letter, Ms Ross notes that an investigation into concerns for applicant's children's welfare had commenced and concluded, with the outcome that Child Protection would not be involved with the applicant's family.

(d) the applicant has accepted that his relationship with CS is over, and has recently commenced a new relationship;

(e) the applicant is aware of the conditions of the FVIO, and is said to be committed to taking proper steps to facilitate access to his children. Prior to his remand, the applicant had contacted Victoria Legal Aid for advice in relation to family law matters, and had made an appointment with the Family Relationship Centre in Geelong to understand his options in relation to mediation and parenting arrangements;

(f) the applicant has no history of interfering with witnesses or otherwise obstructing the course of justice; and any residual risk is moderated by the applicant's stable address and family support.

(g) it is proposed that, if he were granted bail, the applicant be subject to conditions relating to residence, curfew, non-contact with witnesses, compliance with CISP and compliance with the FVIO.

62 The application for bail was opposed on the basis that the applicant had not demonstrated exceptional circumstances that justify the grant of bail. It was also submitted that the applicant posed an unacceptable risk under s 4E of the Act.

63 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relied on the following:

Nature and seriousness of the alleged offending

64 The respondent disputed the applicant's categorisation of the alleged offending as 'low-level', and submitted that it is to be considered in the broader context of the allegations in the informant Meath matters. The aggregate effect of the alleged offending, and the persistent nature of it, is said to have caused CS and the children significant stress, anxiety and emotional trauma.

65 In specifically addressing the applicant's submission that the alleged call to CS did not involve any threats or intimidation, it is noted that CS described the tone of the caller's voice as aggressive.

66 The respondent acknowledged that most of the charges in the present matter rely heavily on CS's evidence. However, it was contended that if the matter proceeds to a contested hearing, and CS's evidence is accepted, there is a reasonable possibility that the applicant will be found guilty of the charges against him.

67 It was conceded that the applicant has no criminal history for family violence or bail offences. However, it was submitted that his criminal history does reveal a pattern of non-compliance with court orders, as well as driving regulations.

68 The applicant was on summons and bail for several matters at the time of the alleged offending.

69 The applicant was the named respondent to a final FVIO at the time of the alleged offending, which included full no-contact conditions with limited exceptions in relation to child arrangements.

70 The informant has made contact with the applicant's father, who indicated that his other three children have been providing care to him whilst the applicant has been on remand, using a 'roster system' to ensure that he is taken to any necessary medical appointments.

71 While the respondent did not take issue with the mental health challenges outlined in Ms Cidoni's report, it was submitted that the applicant's health problems may be being exacerbated by undisclosed methylamphetamine use. This is in the context that the applicant previously tested positive for same, in the informant Dekker matter. The applicant hypothesised to his CISP case manager that the positive result for methylamphetamine on that occasion was likely due to his use of a prescribed weight-loss drug, duromine. Against this, the respondent relied on the statements of Drs Angela Sungsaila and Dimitri Gerostamoulos (which are not specific to this matter), to the effect that duromine is structurally distinct from methylamphetamine; does not contain methylamphetamine; and does not metabolise to methylamphetamine.

72 The applicant proposed to be granted bail under the supervision of CISP. However, at the time of the alleged offending in the present matter, he was already being case managed by CISP with identical supports. Further, in view of the assertions above in relation to possible undisclosed methylamphetamine use, it was submitted that the services offered by CISP will not be sufficient to moderate any unacceptable risk to an acceptable level.

73 CS has expressed to police that she is terrified for her safety, and believes that the applicant was following her prior to his arrest and that, if granted bail, will 'come after her' and violently assault her. She also expressed concern at the fact that the applicant approached their daughter at school, in CS's absence, and stated that she is terrified that the applicant will either harm their children or attempt to abscond with them.

74 It was submitted that, when all of the outstanding family violence matters are viewed as a whole, it is likely that the applicant will be sentenced to a term of imprisonment if found guilty of the charges in those matters. It was further submitted that there is no significant risk of his remand period exceeding any likely sentence.

75 It was submitted that there are no conditions of bail that could be imposed to moderate the unacceptable risk posed by the applicant of engaging in any of the following conduct under s 4E(1)(a) of the Act, based on the following:

76 The respondent raised particular concerns with respect to the safety and welfare of CS and the children, if the applicant is granted bail, submitting that the applicant is likely to 'act out' against CS in a violent and unpredictable way. This is in the context of the present allegations, together with a history of reported (uncharged) family violence incidents the applicant is said to have perpetrated against CS in the presence of their children. It was noted that the existence of a FVIO has not deterred the applicant from committing family violence, and further that his behaviour is said to have been escalating notwithstanding the presence of a FVIO or bail conditions requiring his compliance with the FVIO.

77 The applicant was on bail in relation to two separate matters at the time of the present alleged offending. Notwithstanding him having spent several months on remand in the first informant Meath matter, it was only 12 days after being granted bail in that matter that the applicant went on to commit the present alleged offending. It was submitted that the applicant is 'extremely likely' to commit further family violence offences if granted bail, based on his previous disregard for bail conditions and FVIOs.

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

78 The respondent referred to the allegations in the informant Meath matters, which involve the applicant allegedly contacting CS and attempting to pressure her into withdrawing her statements against him. The respondent also referred to the present allegations, which involve the applicant allegedly using coercive behaviours towards his young daughter, telling her that he would give her lollies if she came with him, and telling her not to tell any adults about their interaction.

79 Considering the matters to be taken into account under s 3AAA of the Act, I have come to the conclusion that the matters relied upon by the applicant do not amount to circumstances which are exceptional within the meaning of the Act. The matter most heavily relied upon on behalf of the applicant was the delay between the date of charge and likely hearing date which is likely to be a matter of some months, although other matters were relied upon in combination.

80 In the context of this application, the delay is only significant if that time spent in custody by the applicant is far in excess of any likely sentence that may be imposed by the presiding Magistrate.

81 In that context and in the context of the nature, seriousness and strength of the prosecution case, this offending is comprised of some four phone calls from the applicant to his wife. There is then the "honking" incident in the vehicle on 5 August 2021. Finally, there is the allegation that the applicant attended his daughter's school on several occasions trying to persuade one of them to go with him. Later the children's classrooms were locked. More serious offending can be imagined but at the time of these events the applicant was the respondent to a final FVIO where the affected family members were his wife and children. In addition, there were a series of incidents, family violence notices and breaches of intervention orders in March and April 2021. That led to the charges that were laid on 24 April 2021 which I have earlier recited.

82 In those circumstances I am not persuaded that it is by any means clear that if the applicant were to remain in custody between now and the hearing of the contested matter in the Magistrates Court, that period would exceed any likely sentence that would be imposed. I do not regard the likely delay in this case as otherwise inordinate. In my opinion, if the charges against the applicant were proved, a Magistrate would regard the applicant's conduct since the beginning of 2021 as very serious and sentence him accordingly.

83 So far as the other matters relied upon were concerned, I do not regard the asserted family hardship as being of great significance. Further, with great respect, the CISP reports identify possible mechanisms for assisting the applicant that are all prospective and depend on his voluntary compliance if he were to be released. I accept that Ms Cidoni has diagnosed the applicant with significant mental health issues, but they are not of such a magnitude as to be not amenable to treatment in custody. So far as the physical pain that the applicant suffers is concerned, whilst I do not diminish its significance, it is not of a such a level as to prevent him from undertaking a role as a senior coach at a local cricket club in the area where he lived.

84 Having concluded that the applicant has failed to establish exceptional circumstances that would justify a grant of bail, the application must be refused.

[1] Contrary to s 125A(1) of the Family Violence Protection Act 2008 (Vic).

[2] Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).

[3] Contrary to s 30B of the Bail Act 1977 (Vic).

[4] Contrary to s 30A(1) of the Bail Act 1977 (Vic).

[5] Bail Act 1977 (Vic) s 1B.

[6] Ibid Schedule 2 cl. 19 (Persistent contravention of a FVIO).

[8] Ibid, ss 4AA(c)(i) and 4A(2).

[9] Ibid s 4A(1A).

[10] Ibid, ss 3AAA and 4A(3).

[11] Re Brown [2019] VSC 751 [65] (Lasry J).

[12] Roberts v The Queen [2021] VSCA 28, [9].

[13] Above n 1, s 4D(1)(a).

[14] Ibid, s 4E(3).

[15] Ibid, s 5AAAA(2).

[16] Psychological report of Gina Cidoni dated 6 July 2021, [78]-[79], [82]-[84].