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[2021] VSC 299
Supreme Court of Victoria
2021-06-10
LASRY J
Original judgment source is linked above.
CRIMINAL LAW - Application for bail - Charges of theft, driving whilst disqualified, committing an indictable offence on bail and other offences - Applicant a 22 year old First Nations person - Availability of residential rehabilitation - Exceptional circumstances established - Unacceptable risk not made out - Bail granted - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4AA, 4A, , - Cases cited: (Unreported, Supreme Court of Victoria, 31 October 1990); ; ; ; ;
General information, not legal advice.
1 This is an application for bail by Dylan Bailey ('the applicant') in relation to 26 charges brought by Constable Nicholas Haylock ('informant Haylock'), and five charges brought by Detective Senior Constable Catherine Ricardo ('informant Ricardo'). This has been a more difficult matter to resolve because the evidence that was essential in support of the application took some time to surface and when it did was not in what I regard as proper form. In this Court it should be understood there is an expectation that applications of this kind must be prepared to a particular standard by all parties. As will be seen, that did not occur in this application.
2 The particulars of the informant Haylock and Ricardo charges are as follows:
(a) theft (five charges);[1]
(b) committing an indictable offence while on bail (six charges);[2]
(c) driving whilst disqualified (three charges);[3]
(d) attempted theft (two charges);[4]
(e) tampering with a motor vehicle (two charges);[5]
(f) possessing of identification information;[6]
(g) dealing with property suspected of being proceeds of crime (two charges);[7]
(h) using a fraudulent identification plate; [8] and
(i) handling stolen goods (four charges).[9]
3 The informant Haylock and Ricardo charges relate to events alleged to have occurred between 6 and 24 February 2021. At the time of this alleged offending, the applicant was on bail in relation to charges brought by Senior Constable Christopher Hodgens ('informant Hodgens'). The applicant allegedly committed the informant Hodgens offending between 5 March 2020 and 29 January 2021 and has been charged with the following:
(a) theft (three charges);[12]
(b) aggravated burglary;[13]
(c) dangerous driving whilst being pursued by police (two charges);[14]
(d) failing to stop vehicle on police request (two charges);[15]
(e) driving whilst disqualified (two charges);[16]
(f) using a fraudulent identification plate (two charges);[17]
(g) cultivating a narcotic plant (cannabis);[18]
(h) possessing a drug of dependence (cannabis);[19]
(i) possessing a drug of dependence (methylamphetamine);[20]
(j) failing to comply with a police direction to provide PIN code;[21]
(k) possessing cartridge ammunition;[22]
(l) dealing with property suspected of being proceeds of crime (two charges);[23] and
(m) handling stolen goods.[24]
4 The applicant was arrested and remanded in custody on 24 February 2021. He had been in custody for a period of some 86 days on the first day of this application. He was previously refused bail in the Magistrates' Court at Melbourne on 27 April 2021, on the basis he posed an unacceptable risk of committing an offence while on bail.
5 By an application filed on 3 May 2021, the applicant seeks a grant of bail in this Court. The informant Haylock and Ricardo matters are next listed for contest mention and mention, respectively, in the Magistrates' Court at Melbourne on 9 July 2021. The Informant Haylock matter is next listed on 23 June 2021. A final summary hearing of those matters may not occur much before September 2021.
The alleged offending for which the applicant seeks bail
6 The informant Haylock charges arise from a series of incidents that are alleged to have occurred between 6 February and 23 February 2021.
7 Between 6 and 21 February, the applicant attended a residential premises in Narre Warren and removed the rear registration plate from a vehicle located there.
8 Between 12:30 am and 8.30 am on 6 February, the applicant entered a residence in Ventnor and, while the occupants were sleeping, stole the keys to a white BMW ('the stolen white BMW').
9 At 1:58 am on 12 February, the applicant and an unknown person entered an underground secure carpark in Hawthorn ('the Hawthorn carpark') in the stolen white BMW, which was bearing false number plates. They broke into a Ford Ranger utility and stole over $19,000 worth of tools and electronic equipment.
10 At 2:00 am on 17 February, the applicant and two unknown persons attended the Hawthorn carpark in a stolen black BMW, bearing the number plates registered to the stolen white BMW. They forced entry into three vehicles, including the Ford Ranger from the previous incident, and stole a storage crate, an iPhone charging cable and house keys.
11 At 9:00pm on 18 February, the applicant attended a supermarket carpark in Pakenham and stole the rear registration plate of an unoccupied vehicle.
12 At 3:34pm on 21 February, the applicant and an unknown person attended a residential premises in Camberwell. They gained entry to the secure carpark at the residence and located two 1984 Alpha Romeo vehicles, one of which the applicant attempted to break into by jamming scissors into the driver's side lock, causing damage. He gained access to the other Alpha Romeo and stole it.
13 On 1 March 2021, the stolen Alpha Romeo was located in Endeavour Hills. It was forensically processed and three persons were connected to the vehicle as a result. None of those persons were the applicant.
14 Between 8:00 pm on 22 February and 5:30 am on 23 February, the applicant broke into a vehicle parked in a street in Camberwell and stole a marine licence in the name of the vehicle's owner.
15 Between 5:30 pm on 22 February and 6:00 am on 23 February, the applicant gained access to a vehicle in the front yard of a house in Camberwell and stole a laptop computer and an Apple watch.
16 The informant Ricardo charges arise from alleged incidents on 14 and 21 February 2021. At the time of the alleged offending, the applicant was residing in short-term accommodation at the Emerald Apartments in Melbourne ('Emerald Apartments'), and had access to the underground carpark via a 'fob' provided by Emerald Apartments.
17 In summary, the prosecution case is that between 9:00 pm and 11:00 pm on 14 February 2021, the applicant entered the Emerald Apartments carpark in the stolen white BMW, which was bearing false number plates. He forced entry into the rear canopy of a Mazda utility parked inside the carpark and stole various tools and equipment, valued at approximately $7,000.
18 Between 4:50 pm and 5:10 pm on 21 February 2021, the applicant and an unknown male drove into the Emerald Apartments carpark. It is alleged that the applicant then forced entry into two vehicles, including the Mazda from the previous incident, and stole various tools and equipment valued at approximately $12,500.
19 The applicant was arrested on 24 February 2021 at an apartment in the Novatel Hotel in Glen Waverley. He denied all allegations during interview and was remanded in custody.
20 The applicant is a 22 year old First Nations man. He has a relationship with his father Clint Bailey, and less of a relationship with his mother. His father also had difficulties with the criminal justice system and described himself as not being a role model for his son. However, as he described, he underwent the same residential course that is now proposed for the applicant and benefitted from that treatment. I will return to this issue.
21 Prior to the applicant's remand in custody, he was living transiently with his partner between apartment complexes and other short-stay accommodation facilities. His partner became pregnant and gave birth to their child on 4 June 2021.
22 At age 22 the applicant already has a significant criminal history. That history spans some 6 years and involves about 16 separate court appearances. He has numerous prior convictions for stealing motor cars and other forms of theft. He also has convictions for drug possession, weapons possession and driving offences. He has served custodial sentences in adult prison and Youth Training Centres, none of which appear to have specifically deterred him from committing offences. For one so young, it is a very poor record and appears to show a determination to keep offending.
23 When interpreting and applying the Bail Act 1977 (Vic) ('the Act'), the Court must have regard to the guiding principles set out in s 1B of the Act.[25] These include, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.[26]
24 Because the applicant is a First Nations person, s 3A of the Act is relevant to this application. It reads:
Determination in relation to an Aboriginal person
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including -
(a) the person's cultural background, including the person's ties to extended family or place; and
(b) any other relevant cultural issue or obligation.
25 The applicant is accused of a Schedule 2 offence,[27] which it is alleged he committed whilst on bail for another Schedule 2 offence.[28] Bail must therefore be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify a grant of bail.[29] In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.[30]
26 It is also well to bear in mind what the authorities have said about what the phrase 'exceptional circumstances' means. For decades now, the observations of Vincent J (as he then was) in Moloney have been relied upon. His Honour observed:[31]
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
27 Those comments were made long before the existence of s 3AAA of the Act and the considerations that section refers to.
28 More recently, in Roberts, the Court of Appeal noted and concluded:[32]
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.
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of 'unacceptable risk'). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.
29 As I have already mentioned, s 3AAA of the Act contains the surrounding circumstances to be considered inclusively in determining whether exceptional circumstances have been established. The relevant considerations for this application include:
(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;
...
(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;
...
(k) the length of time the accused is likely to spend in custody if bail is refused; and
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged.
30 These are all matters that must be taken into account in dealing with the question of exceptional circumstances. There is no legislative formula prescribing how to determine whether exceptional circumstances have been established. As the applicant is a First Nations person, the Court must also take into account the considerations in s 3A of the Act when considering whether exceptional circumstances have been established.
31 The release on bail of anyone who faces the allegations the applicant faces carries a degree of risk. If I am satisfied that exceptional circumstances have been established, I must still consider whether this risk is unacceptable within the meaning of the Act.[33] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is unacceptable.[34]
33 The applicant raised a number of issues with the strength of the prosecution case in the matter of informant Haylock, as follows:
(a) Much of the relevant CCTV footage is unclear and, it was submitted, not properly capable of identifying the offenders. In circumstances where all other offenders are described as 'unknown' in the police summary, it was submitted that the applicant cannot be distinguished from the other offenders and therefore cannot be properly identified from the CCTV;
(b) The CCTV footage relating to charges 12-16 (i.e. theft of the Alfa Romeo) is defective and 'skips' at the relevant time when the vehicle is alleged to have been stolen. The allegations involving the applicant 'jamming scissors' into, and gaining entry into, vehicles are not depicted in the available footage;
(c) The clothing worn by the applicant during the alleged offending has not been recovered; and
(d) There is limited forensic evidence to substantiate the assertions made in the police summary.
34 The applicant is 22 years old. While he is no longer considered a 'young offender' for the purposes of the Sentencing Act 1991 (Vic), it was submitted the desirability of promoting his rehabilitation and preventing exposure to negative influences should still weigh heavily in the Court's consideration of whether to grant bail.
35 The applicant's partner gave birth to their first child on 4 June 2021. The details of the role the applicant has committed to play as a parent or his attitude towards his child's birth were not entirely clear to me, particularly given that he proposes to be at Yitjawudik Men's Recovery Centre ('Yitjawudik') for some months. However, evidence was given on the last day of this application of the applicant's commitment to being a parent and discharging his responsibilities accordingly.
36 The applicant is a First Nations person and the considerations under s 3A of the Act apply. It was submitted, with particular reference to s 3A(b), that the applicant's proposed participation in the residential rehabilitation program at Yitjawudik would provide him with an opportunity to engage in culturally appropriate programs aimed at addressing behaviour change.
37 The applicant relied on the remarks of T Forrest J (as he then was) in Re Chafer-Smith, to the effect that, where a decision of whether or not to grant bail is closely run, a person's Aboriginality will be of particular relevance.[36]
38 If granted bail, the applicant proposes to immediately commence treatment at a 16‑week residential rehabilitation program with Yitjawudik, located in Toolamba.
39 Yitjawudik is a 24-hour residential drug and alcohol rehabilitation facility for First Nations men which is run by the Ngwala Willumbong Aboriginal Corporation ('NWAC'). The program includes relapse prevention, alcoholics and narcotics anonymous and Aboriginal men's mentor groups. If the applicant were to breach any bail conditions or house rules, or return a positive drug or alcohol screen, he would be discharged and the police would be notified. Jason Briggs, the manager of Yitjawudik, gave evidence on the first day of this application and a number of matters of significance arose from that evidence, including the fact that he has had no contact at all with the applicant. The applicant's father also gave evidence on the first day of this application as to his own experience partaking in the Yitjawudik program and the positive impact that doing so has had on his life.
40 In that context, the applicant relied on the decisions of Re Martyn Moore,[37] Re Anthony Foster[38] and DPP v Akoka,[39] insofar as they relate to the benefits of residential rehabilitation facilities. I note that in the latter case the Court of Appeal was dealing with an appeal against sentence in circumstances where the person to be sentenced had already spent time at Odyssey House prior to his sentence being imposed. That enabled an assessment of his progress toward rehabilitation. The appeal turned more on the resolution of an issue about the punitive aspect of residential care and treatment. That is not the case here.
41 The informant Haylock and Ricardo matters are next listed for contest mention and mention, respectively, on 9 July 2021. If the matters do not resolve once they reach the contest mention stage, it was submitted that the delay before a contested hearing would likely be a number of months.
Likely sentence to be imposed should the applicant be found guilty
42 If the applicant is convicted of the alleged offending, it was submitted that he will likely face a combination sentence. However, it was submitted that completing the residential rehabilitation program at Yitjawudik would be a relevant consideration for sentence, should he found guilty of the charges against him. It was submitted that successfully completing the Yitjawudik program would improve the applicant's rehabilitative prospects, which would in turn lessen the significance of community protection for the sentencing Magistrate, the inference being that the custodial component of any eventual sentence may be reduced if the applicant completes the Yitjawudik program. I am by no means certain that would be the likely outcome given the sheer volume of the applicant's offending and his criminal history.
43 If the applicant is granted bail, the following conditions of bail are proposed:
(a) To obey all lawful directions of staff of Yitjawudik Men's Recovery Centre;
(b) To reside at [redacted], Toolamba;
(c) Not to leave residence between 9:00 pm - 6:00 am;
(d) Not to leave Victoria;
(e) Not to use a drug of dependence; and
(f) Not to drive a motor vehicle.
44 As the applicant would be residing 20 kilometres from the nearest town (Shepparton) under supervision of staff, it was submitted that a condition of reporting to police should not be imposed.
45 The respondent opposed application for bail on two broad grounds. First, on the basis that the applicant had not demonstrated exceptional circumstances that justify a grant of bail. Second, on the basis that the applicant posed an unacceptable risk under s 4E of the Act. The respondent addressed the following matters:
46 The respondent submitted that the birth of the applicant's first child is unlikely to influence his compliance with bail conditions or prevent further offending. The applicant was aware of his partner's pregnancy when he was granted bail on the informant Hodgens charges and prior to his remand in the present matters. It was also noted that the applicant's partner is a co-accused in relation to some of the informant Hodgens charges.
47 The respondent submitted that the applicant is unlikely to abide by the proposed residence, curfew and motor vehicle bail conditions, in circumstances where his partner resides more than 200 kilometres from his proposed residence at Yitjawudik. Yitjawudik is not a secure facility and he would free to leave at any stage, albeit that a report of that happening would likely be made to the police.
48 As to the applicant's submissions regarding the clarity of the CCTV footage to be relied upon and the ability to distinguish the applicant from other alleged offenders, the respondent outlined ten items of CCTV evidence that will be relied upon to identify the applicant.
49 With reference to the applicant's submissions regarding the 'defective' CCTV footage depicting the theft of the Alfa Romeo, the respondent submitted that the footage is not defective, but is motion censored. The respondent submitted that the CCTV footage depicts the applicant arrive at the victim's premises in a stolen Volkswagen Touareg ('the Volkswagen'). The applicant then exits the Volkswagen and walks towards the garage. The CCTV footage stops but is reactivated a short time later when the garage door opens and the Volkswagen drives in. The CCTV footage stops again, but is reactivated five minutes later and depicts the stolen Alfa Romeo being driven out of the garage, closely followed by the Volkswagen.
50 The respondent submitted that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, of committing an offence whilst on bail and failing to surrender into custody in accordance with the conditions of bail.
51 In relation to endangering the safety and welfare of any person, the respondent noted that the applicant has a demonstrated history of driving stolen vehicles in a dangerous and negligent manner in order to avoid police apprehension. Relevantly, the applicant has twenty-one counts of theft of a motor vehicle between 2017 and 2019, and two previous convictions of dangerous driving while pursued by police in 2019. Further, it is submitted that the applicant has a drug addiction and is alleged to be driving vehicles while committing offences.
52 In relation to committing an offence whilst on bail, the applicant also has a history of committing offences while on bail. The current charges involve a series of indictable offences that the applicant allegedly committed within just two weeks of him being granted bail for the informant Hodgens matter. Further, it was submitted that the applicant has a drug addiction which is funded by criminal activity.
53 In relation to failing to surrender into custody in accordance with the conditions of bail, the respondent noted that the applicant's current matters include charges related to the applicant attempting to avoid apprehension. In addition, the applicant has one prior record of failing to answer bail, one prior record of giving a false name and has had multiple bench warrants issued by the court.
54 The first question is whether the applicant has established that exceptional circumstances exist that would justify a grant of bail. Although not the only factor relied upon, the primary factor said to constitute an exceptional circumstance was the proposal that the applicant would participate in residential rehabilitation at Yitjawudik.
55 On the hearing of the application, the evidence initially revealed that no-one from that organisation had ever been in direct contact with the applicant, although there was a strong link between that organisation and the applicant's father who himself has benefitted from the experience of participating in the residential program.
56 I acknowledge the evidence of Mr Bailey Snr on the application but in the absence of any form of assessment of the applicant, the evidence given by him and Mr Briggs from Yitjawudik (who had never met the applicant), was of only limited value on the topic of the applicant's attitude and acceptance of efforts to rehabilitate him. Neither witness gave any evidence about the applicant's attitude toward the prospect of residential treatment, his willingness to engage in it or his willingness to comply with the law generally and any bail conditions in particular. I do acknowledge that Mr Briggs gave an overview of the way in which Yitjawudik centre operates. He said there are up to 16 clients present although only four at present. He described how, over a period 16 weeks, assistance is given in relation to alcohol and drugs. On the basis of this evidence, I accept that Yitjawudik has the capability to assist people in the position of the applicant. As will be seen, that evidence becomes significant in this application despite the lack of connection with the applicant.
57 So, by the first day of this application, there had been no assessment of the applicant to determine his suitability for the Yitjawudik program. No-one had assessed the particular ways that the Yitjawudik program might assist and rehabilitate him. In addition there was no evidence from anyone as to the applicant's attitude towards the Yitjawudik program or his understanding of the commitment that would be required from him. Further, there was no evidence to enable me to make any assessment of his attitude. I genuinely had no idea what the applicant's present motivations were or his prospects of rehabilitation. In my opinion that was a major flaw in the application. For the Yitjawudik program to be capable of contributing to a finding of exceptional circumstances, the proposal must have some subjective tailoring to the applicant's situation, needs and difficulties. I considered there needed to be some kind of assessment of applicant. In addition, I thought that some evidence of a reformist attitude on the applicant's part was needed to support the conclusion that a grant of bail is justified.
58 Having expressed my concerns about those matters, on the day before I was to rule on the application a document authored by Marnie Sather was filed with the Court. In that document, Ms Sather identified herself as a counsellor at Yitjawudik and outlined a conversation she had with the applicant regarding his desire to rehabilitate and the Yitjawudik program generally. The ruling was adjourned so that an affidavit could be obtained from Ms Sather and arrangements made for her to attend the next hearing to give evidence. Subsequently, an affidavit sworn by her on 4 June 2021 was filed. In that affidavit she described herself as an "Australian Counselling Practitioner #7306".
59 She deposed that she spoke to the applicant on 24 May 2021, three days after the first day of the hearing of this application. She then said she "assessed" him on 28 May 2021 in relation to his proposal to enter the residential facility. She gave evidence on 9 June 2021, which was the third day the application was before this Court. In her evidence she described herself as a marriage family therapist. No relevant qualifications were identified. She did say that she held "a Masters in Marriage Family Therapy... a Masters in Narrative Counselling and Community Work, and ...a Doctorate in Suicide Bereavement." It is not immediately obvious to me how those matters qualified her to make an assessment of the applicant, particularly in relation to his mental state.
60 In her evidence, she said she was unaware in any detail of the charges the applicant faced or the details of his prior criminal history. However, she did give positive evidence about the applicant, his level of insight into his offending and peer group, his attitude to his partner and child and his willingness to be involved in the residential treatment that was proposed for him.
61 Overall, I did not regard that witness's evidence as being particularly satisfactory. I consider there is a significant issue as to whether she had any qualifications to make the "assessment" she claimed to have made. I am unsettled by the fact that she paid little or no detailed attention to the charges the applicant faces, nor to his previous criminal history. I am prepared to act on some parts of the witness's evidence but not others.
62 In that connection, I make the following broader observations. Applications for bail are serious matters involving, as they do, a person's liberty. They are often made at short notice and usually at the commencement of the criminal justice process. In such applications where issues of alcohol and substance abuse arise, the availability of residential treatment is a valuable tool for dealing with people like the applicant. However, those facilities are not custodial and depend on the commitment of an accused person to the treatment and assistance they offer. In order for courts to be able to rely on such well-meaning organisations and have confidence in them, it is necessary that the evidence on an application like this reveal reliable, detailed and genuinely expert assessments of an applicant, their circumstances and the detail of their proposed involvement in residential treatment.
63 The somewhat vague, inexpert evidence of Ms Sather did not fall into that category and much of it was of little assistance. However, the information she gathered from the applicant has some relevance and, combined with the evidence of the applicant's father, gives some picture of his present circumstances and state of mind.
64 In considering the matters identified in s 3AAA of the Act, I have come to the following conclusions:
(a) The offending serious and the acts of the applicant are serious examples of the offences charged.
(b) Whilst there may be some factual issues to be argued I do not regard the prosecution case as weak.
(c) As I have already said, the applicant has a very poor criminal history and failed to comply with a number of previous grants of bail. At the time of the alleged offending for which he seeks a grant of bail, he was on bail for other alleged offending.
(d) I am not of the view that the applicant would likely spend more time on remand than any term of imprisonment to which he would be sentenced should the charges against him be proven. These matters come at the end of a long series of offending.
65 On the other hand, I have also considered the applicant's personal circumstances, associations, home environment, background and the fact that he is a First Nations person. The applicant is now the father of a baby daughter only days old and expressed to Ms Sather his commitment to parenthood.
66 I have considered whether there is any special vulnerability of the applicant given his First Nations heritage. None is immediately obvious, though his desire to expand his connection with and knowledge of indigenous culture is to his credit. He is young and I accept that he has good family support. I was impressed with his father's commitment to him given his own difficult circumstances. I have already described the availability of treatment and bail support services and what I consider was lacking in the evidence about that. That was no fault of the applicant. The evidence does show that the applicant has some insight into his offending.
67 In all the circumstances I am persuaded that the proposal that the applicant attend the Yitjawudik facility coupled with the other personal circumstances I have mentioned are capable of amounting to exceptional circumstances that would justify a grant of bail. In all the circumstances of this case, I do regard the continued pre-trial incarceration of the applicant as unjust because, among other reasons and perhaps for the first time, he has a real opportunity to make significant changes to his life. I have already referred to the principle enunciated in the Court of Appeal in Roberts that "the bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice." In my opinion a consequence of the future incarceration of the applicant is the forfeiture of a genuine opportunity for rehabilitation for him.
68 So far as the question of risk is concerned, I would propose to release the applicant on conditions of bail that require him to remain at Yitjawudik on a full time basis, 24 hours per day, 7 days per week for the next four months. If he were to leave that organisation in that time he would be immediately in breach of his bail. Prior to the applicant's time at Yitjawudik ending, I will review the matter and determine if the he can continue on bail and if so on what further conditions. In those circumstances the respondent has not persuaded me that the risk in the applicant's release is unacceptable.
69 I will therefore grant bail to the applicant and make the following orders:
(a) The applicant reside at [redacted] in the state of Victoria on 10 June 2021 and at 'Yitjawudik Men's Recovery Centre' at [redacted] in the State of Victoria ('place of residence') thereafter;
(b) The applicant not leave his place of residence unless in the company of a staff member of Yitjawudik Men's Recovery Centre;
(c) The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informants Detective Senior Constable Catherine Ricardo or Senior Constable Nicholas Haylock or their nominee, being an authorised member of Victoria Police;
(d) The applicant engage in treatment and comply with all lawful directions of staff at Yitjawudik Men's Recovery Centre;
(e) The applicant provide the informants or their nominee with the results of any drug screens undertaken while on bail within 24 hours of the drug screen result becoming available, subject to the approval of the Yitjawudik Men's Recovery Centre;
(f) The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(g) The applicant not, whether directly or indirectly, contact or associate with any co-accused except for [redacted] and only in relation to family matters;
(h) The applicant not drive a motor vehicle;
(i) The applicant not leave the State of Victoria;
(j) The applicant not attend any points of international departure;
(k) The applicant surrender any current passport or travel document in his possession or control to the informants or their nominee within 24 hours of being released on bail;
(l) The applicant is not to apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf; and
(m) The applicant appear:
(i) At the Magistrates' at Melbourne on Friday 23 June 2021 at 9:30 a.m.;
(ii) At this Court, for the purpose of judicial monitoring, on Monday 27 September 2021 at 9:30 a.m.;
and thereafter as directed by each court.
[1] Contrary to s 74 of the Crimes Act 1958 (Vic).
[2] Contrary to s 30B of the Bail Act 1977 (Vic).
[3] Contrary to s 30(1) of the Road Safety Act 1986 (Vic).
[4] Contrary to s 321M of the Crimes Act 1958 (Vic).
[5] Contrary to s 70(1) of the Road Safety Act 1986 (Vic).
[6] Contrary to s 192C(1) of the Crimes Act 1958 (Vic).
[7] Contrary to s 195 of the Crimes Act 1958 (Vic).
[8] Contrary to s 72 of the Road Safety Act 1986 (Vic).
[9] Contrary to s 88 of the Crimes Act 1958 (Vic).
[10] Contrary to s 74 of the Crimes Act 1958 (Vic).
[11] Contrary to s 30B of the Bail Act 1977 (Vic).
[12] Contrary to s 74 of the Crimes Act 1958 (Vic).
[13] Contrary to s 77 of the Crimes Act 1958 (Vic).
[14] Contrary to s 319AA of the Crimes Act 1958 (Vic).
[15] Contrary to s 64A of the Road Safety Act 1986 (Vic).
[16] Contrary to s 30(1) of the Road Safety Act 1986 (Vic).
[17] Contrary to s 72 of the Road Safety Act 1986 (Vic).
[18] Contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[19] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[20] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[21] Contrary to s 465AAA.5 of the Crimes Act 1958 (Vic).
[22] Contrary to s 124 of the Firearms Act 1991 (Vic).
[23] Contrary to s 195 of the Crimes Act 1958 (Vic).
[24] Contrary to s 88 of the Crimes Act 1958 (Vic).
[25] Bail Act 1977 (Vic) s 1B
[27] See item 30 (An offence against the bail Act) of Schedule 2 of the Bail Act 1977 (Vic).
[28] See item 22(b) (Armed Robbery) of Schedule 2 of the Bail Act 1977 (Vic).
[29] Bail Act 1977 (Vic) ss 4AA(2), 4A(1A), 4A(2).
[31] Re Bail Application by Moloney (Unreported, Supreme Court of Victoria, 31 October 1990).
[32] Jason Joseph Roberts v The Queen [2021] VSCA 28 [9]-[10].
[36] [2014] VSC 51 [27]
[38] [2020] VSC 62 [34]-[36]
CRIMINAL LAW - Application for bail - Charges of theft, driving whilst disqualified, committing an indictable offence on bail and other offences - Applicant a 22 year old First Nations person - Availability of residential rehabilitation - Exceptional circumstances established - Unacceptable risk not made out - Bail granted - Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4AA, 4A, 4D, 4E - Cases cited: Re Bail Application by Moloney (Unreported, Supreme Court of Victoria, 31 October 1990); Jason Joseph Roberts
The Queen