Crown v Accused

1 The applicant, SP, is a 29 year old Aboriginal man. On 22 September 2022 he was charged and remanded for several offences alleged to have occurred on 22 September 2022, including:

(a) Charge 1: Trafficking a commercial quantity of methylamphetamine pursuant to s 71AA of the Drug Poisons and Controlled Substances Act 1981 (Vic) ('the Act').

(b) Charge 2: Trafficking a drug of dependence (methylamphetamine) pursuant to s 71AC of the Act.

(c) Court 3: Possessing a drug of dependence (methylamphetamine) pursuant to s 73 of the Act.

(d) Charge 4: Trafficking a drug of dependence (cannabis) pursuant to s 71AC of the Act.

(e) Charge 5: Possessing a drug of dependence (cannabis) pursuant to s 73 of the Act.

(f) Charge 6: Deal with proceeds of crime pursuant to s 194(2) of the _Crimes Act 1958 (_Vic) ('the Crimes Act').

(g) Charge 7 and 8: Two counts of possessing a prohibited weapon pursuant to s 5AA of the Crimes Act, being a butter knife and a laser pointer.

2 The applicant is subject to a Firearms Prohibition Order (FPO) which was served on him on 23 February 2022. On 22 September 2022, police attended the applicant's home in Morwell to conduct an FPO compliance search. Police found the following items during the search:

(a) 10 x envelopes containing a substance believed to be methylamphetamine, weighing a total of 90 grams;

(b) 10 x zip lock bags containing a substance believed to be cannabis - the amount of cannabis has not been particularised;

(c) Butterfly knife;

(d) Two notebooks alleged to be 'tick books';

(e) A black laser pointer; and

(f) $2,295 in cash.

3 The matters are listed for contest mention on 16 December 2022.

4 The applicant was remanded on 22 September 2022 and was refused bail in the Latrobe Valley Magistrates' Court on 26 September 2022 before Magistrate Burns on the basis that he had not demonstrated exceptional circumstances, and that there was a risk that the applicant would commit an offence while on bail and fail to surrender into custody.

5 In addition to the oral submissions at the hearing on 17 October 2022, I also received written submissions from both parties and affidavits both in support of and in opposition to bail.[1]

6 The applicant is a 29 year old Aboriginal man who was living at a residential address in Morwell with his de facto wife, ES, and her 11-year-old child, at the time of his arrest. His father was a Māori person and his mother is an Aboriginal person (from Tasmania). The 11-year-old child of ES is not the biological child of the applicant. The applicant has been in a relationship with ES for 4 years. ES does not have a criminal history. Her son is a high needs child who has been diagnosed with Attention Deficit Hyperactivity Disorder ('ADHD')/autism spectrum disorder.

7 ES is pregnant with the applicant's child, and is due to give birth via C-section on 28 October 2022. Information presented by Ms Joosten, who appeared for the applicant, was that ES has an appointment at the hospital on 17 October 2022, the same day as the application for bail, and that there is a significant risk that she may go into labour earlier than planned, due to the size of her baby. ES and the applicant are both very anxious about this possibility. The applicant submits that ES relies heavily on him for financial, physical and emotional support, and needs him to be present with her due to the impending birth of their baby. The birth is especially significant to the applicant and ES as they lost their three-week old daughter, Hope, last year. As well as being concerned about missing the birth, the applicant is also worried about not being around to care for his newborn baby, or to help with his stepson.

8 The applicant reported to the Court Integrates Services Program ('CISP') that he has suffered anxiety since he was about 15 years old and that his mental health has declined following the death of his father in 2019 and his three week old child in 2021. The applicant reports experiencing significantly worse anxiety while on remand.

9 A psychological report was tendered on behalf of the applicant, prepared by Sandra Cokorilo, psychologist. The report was obtained in support of the bail application. The author gave some further information about the applicant's background, noting that the applicant was born in New Zealand and relocated with his parents and siblings to Tasmania in 1995 before moving to Victoria with his mother when he was aged 11. He had informed her that he is the youngest in a sibship of eight; he has a twin brother, two full biological sisters, two half-sisters and two half-brothers. He reported a close relationship with his twin brother and a half-sister, explaining that other siblings have caused issues for him over the years.

10 The Court was also told by Ms Joosten that the applicant is particularly close to his twin brother who lives in Traralgon in Gippsland.

11 Ms Joosten said that the applicant's childhood involved a number of difficulties including family violence in the home, visited by his father on his mother and the children, due to his father's alcoholism. This led to a loss of contact with his father between 2004-15. Over that period, there was instability due to his mother having different partners and frequent changes of address. The applicant attended four different primary schools in Tasmania and three different secondary schools in Gippsland. He experienced bullying in school and there were some behavioral issues of his own. However, he completed year 11 in 2009 and went on to complete a four year painting apprenticeship, which he completed in 2013, aged approximately 21. He then worked as a painter for about six years with one specific company, but ultimately became depressed and felt overworked and underpaid.

12 In more recent years, the applicant's mother and father reconciled and the applicant's bond with his father strengthened. Unfortunately, however, his father was diagnosed with stomach cancer and succumbed to that disease in 2019. This came as a shock to the applicant because the wider family were not told about his father's illness until only days before his death.

13 The applicant experienced a further trauma when his twin brother attempted suicide in 2017 by hanging, and was not breathing when he was found. His brother spent several weeks in hospital following the incident. The applicant flew back from Western Australia to support his brother. Fortunately, the applicant's brother has substantially recovered and is now working full-time as a plasterer and is a good source of support to the applicant.

14 Regarding his history of adult relationships, when he was 21 years old, the applicant was in a relationship with a young woman for approximately two and a half years. He told Ms Cokorilo that the relationship ended because of the impact of the woman's psychiatric condition.

15 The applicant's relationship with ES is his most significant intimate relationship. Their daughter, Hope, was born 8 weeks prematurely in 2021 by an emergency C-section when it was detected that Hope was a large baby and was not moving appropriately. Unfortunately, the applicant was at work when his daughter was born and ultimately, although his daughter was in a special care nursery, she died after 22 days of life. This had a very significant impact on the applicant and his partner. As a consequence of depression caused by the death of his baby, which also followed on the death of his father, the applicant attempted suicide approximately 12 months ago. He still struggles with his mental health.

16 Regarding his employment history, the applicant ceased work as a painter in 2019, citing poor work conditions leading to psychological struggles and increased drug use. He commenced casual concreting work and worked for a concreting company that ultimately failed to pay him for a significant period of time. After working there for some time he found more appropriate concreting work with an alternative employer (Steve C)[2] and he maintained that job for about 11 months prior to his arrest. In that role he was working three or four days a week for about 10 hours a day, earning $75 per hour. The applicant's employer is extremely supportive and is willing to have him back should he be granted bail.[3] The applicant believes that his employer would be flexible in terms of family commitments with the new baby on the way. The work is based in Morwell and the applicant has a licence and is able to drive himself to work.

17 Apart from Children's Court offences of a minor nature, the applicant's adult criminal history includes convictions for resisting police and failure to answer bail in 2017; driving offences; possessing controlled/prohibited weapons; threat to destroy/damage property and failure to answer bail in 2020 (for which he was convicted and fined); and an appearance for a consolidation of charges on 27 August 2021 at Bairnsdale Magistrates' Court. The consolidated charges included driving whilst disqualified, prohibited person possess a firearm, traffick methylamphetamine, possess cocaine and weapons possession. The applicant was convicted on all charges and placed on a Community Corrections Order ('CCO') commencing 30 August 2021, with treatment conditions for drug rehabilitation and mental health assessment.

18 Regarding that CCO, a report was provided by the Respondent from Amber Mactaggart dated 7 October 2022, indicating that the applicant satisfactorily completed the CCO on 26 August 2022 and that the applicant had attended 11 sessions for treatment of his mental health before being discharged from that mental health treatment on 22 March 2022. He also attended a number of appointments with a psychologist as well as successfully engaging in AOD[4] counselling and urinalysis testing during the course of the CCO. He was also able to obtain his licence to drive. The applicant was previously involved successfully with the CISP support program, commencing 2 February 2021 and exiting 27 May 2021.

19 According to Ms Joosten, the current remand is the applicant's first time in custody.

20 Since being arrested it emerged that the applicant had relapsed into methylamphetamine use to a concerning degree, and as mentioned earlier, following the death of his baby daughter he attempted suicide in 2021. He told the author of the CISP report, Ms Traci Hammond, that he tended to use drugs to self-medicate due to his grief and loss issues.

21 Further, in his assessment with Ms Cokorilo the applicant disclosed that he has not been able to completely abstain from drugs during and following the CCO and continued to use drugs to numb the grief relating to the deaths of his father and daughter, including up to the date of his arrest.

22 Since being charged with the new offences, the applicant has been experiencing significant anxiety, including hyperventilating and having panic attacks in custody on remand. He spent 6 days in the cells at Morwell, 4 days at the MAP in quarantine followed by 8 days at the MRC in quarantine, before being sent to Fulham Prison. He has not been able to receive any rehabilitative programs on this period and has been extremely anxious about the welfare of his partner.

23 It was noted by Ms Joosten that, despite the prior offences, the applicant is a person who engages well when rehabilitation services are provided to him and that he is likely to be fully cooperative with the support offered through CISP. Ms Cokorilo found him to be suffering from a moderate level of anxiety and a moderately severe level of depression. Indeed she opined that he currently meets the criteria for major depressive disorder and generalised anxiety disorder. Ms Cokorilo expressed concerns about reduced access to psychological and medical treatment on remand due to high demand and limited resources, especially in the wake of the COVID-19 pandemic. This finding appears to tally with a similar finding in the CISP report.[5]

24 It appears that in 2021 a psychiatrist prescribed the applicant mirtazapine (an antidepressant) but that his dosage of that medication has been reduced while in custody.

25 Ms Cokorilo opines that the applicant risks further deterioration without appropriate access to medical or psychological treatment that could be obtained in the community if he were granted bail. She also observes that the limitation on access to family members in the prison environment is a factor that can contribute to a higher level of depression. Ms Cokorilo says that the applicant is open to engaging with therapeutic resources and that he recognises the need to address his mental health and substance abuse issues. She notes that this demonstrates insight and is a positive indicator of rehabilitation.

26 In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 ('the Act').[6] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst also taking into account the presumption of innocence and the right to liberty.[7]

27 In this case, the parties agree that the applicant must establish that exceptional circumstances exist in order to justify the grant of bail due to being charged with a Schedule 1 offence, namely charge 1.[8] In considering whether exceptional circumstances exist, the Court must take into account 'the surrounding circumstances'.[9] This includes all the circumstances that are relevant to the matter, including, but not limited to, those set out in s 3AAA(1) of the Act. If the quantity of the seized substance is not sufficient to meet a prescribed commercial quantity, and would be better characterised as traffickable quantity, the appropriate bail threshold in such a case is the lower test of compelling reason. This is significant in the current case because the seized substance has not been properly analysed yet, and on the applicant's case, when it is analysed it may not be found to amount to a commercial quantity.

28 Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing that if released on bail, the applicant poses an unacceptable risk of engaging in any or all of the conduct captured by s 4E(1). In the present case, the respondent says the applicant poses an unacceptable risk of:

(a) Committing an offence while on bail;

(b) Failing to surrender into custody in accordance with the conditions of bail; and

(c) Destruction of evidence.

29 Under s 4E(3) of the Act, the Court is again directed to take into account the 'surrounding circumstances' in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk. The Court must again give consideration to s 3A in weighing the risk and in considering whether any conditions of bail could mitigate risk so that it is not an unacceptable risk.

30 Section 3A was added to the Act in 2021, in response to recommendations from the Victorian Law Reform Commission ('VLRC'). In the second reading speech for the amending act,[10] the responsible minister stated that 'the VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system...'.[11]

31 In summary, the applicant relies on a combination of the following factors to establish exceptional circumstances justifying a grant of bail:

(a) Strength of Prosecution case: With respect to Charge 1, the applicant submits that there are triable issues in relation to the alleged quantity of methylamphetamine. The seized substance is believed by the police to weigh approximately 90 grams and would meet the threshold for a commercial quantity (being not less than 50 grams) if the seized substance were found to be pure. However, it is common ground that formal testing of the drugs is required and it is unclear whether the projected weight of the seized substance includes the packaging and what the actual purity of the substance is. The applicant further submits that if the pure amount is slightly over 50 grams, the Crown will have difficulty establishing that the applicant intended to traffick in a commercial quantity, as required by s 71AA of the Act.

(b) Delay: Formal testing of the suspected drug substances will take 3-4 months, and may well not occur before February 2023. In addition, there is likely to be delay in relation to DNA and fingerprint testing of the packaging which may not occur before early 2023. Also, it is anticipated that there will be a 4-6 week delay in analysis of the CCTV hard-drive from the applicant's property. Therefore, it is likely that a committal mention may not be successfully completed before approximately February of next year, and that any of the above-mentioned sources of delay could lead to further extension of the delay. In considering potential delay to the current charges being finally determined, it is relevant to consider the court backlogs occasioned by the COVID-19 pandemic. This gives rise to consideration of the principles expounded by Beach JA in Re Diab.[12] The wait for a trial date in the County Court could be expected to be counted in years rather than months. The applicant submits that there is a risk that the time spent waiting on remand for the current charges to be finalised may exceed any sentence that may be imposed if found guilty, particularly if charge 1 cannot be made out.

(c) Family support and stable accommodation: The proposed bail address for the applicant is in previously stable rental accommodation with his partner, ES, in Morwell. The applicant describes ES as 'his rock' and reports that he has a positive relationship with his stepson. The applicant's mother is 56 years old and while she experiences some difficulty with her back, she is a good support to the applicant and his partner and would be likely to be able to help with the new baby. He also has support from his twin brother, who works full-time as a plasterer and lives close by, as well as support from his half-sister. The applicant's partner has a strong relationship with her mother and sisters, and they also live nearby.

(d) Employment: The applicant has employment available as a concreter.

(e) Special vulnerability: As outlined previously, the applicant has been diagnosed with depression and anxiety, and experiences ongoing difficulties with managing his mental health as a result of a number of traumatic events. The applicant may be more vulnerable in custody due to these factors, which are made worse by his current worries about the impending birth of his child. He told Ms Cokorilo that he has found being in custody very overwhelming, and that he spends most of his time in his cell, away from others.

(f) Available Bail Supports: The CISP report prepared by Ms Hammond assesses the applicant favourably for CISP support and supervision. In the independent psychological report prepared by Ms Cokorilo, she considered that whilst the applicant could be described as having a moderate risk of reoffending, his risk factors may be amenable to treatment through a combination of AOD and mental health interventions, as well as abstinence from drug use, and that these forms of interventions are more available in the community than in custody.

(g) Aboriginality: The applicant submits that pursuant to s 3A it is notable that the applicant is the only Aboriginal parent of his expected child, and, that he and his partner lost their 3-week-old daughter last year. The applicant also points to the over-representation of Aboriginal people in custody, current overcrowding in custody and special risks for Aboriginal people in custody, noting recent deaths of Aboriginal people in custody.

32 With respect to the allegation of an unacceptable risk that the applicant would reoffend or interfere with evidence, the applicant argues that any such risk can be met with strict bail conditions, including CISP support. With respect to the steps that were allegedly taken by others to wipe data from the applicant's phone, it was submitted that there is no necessary link to the conduct of the applicant in respect of that behaviour and it is very unclear that any such actions could be successful, given that the phone is in the custody of the police. In any event, the applicant is on notice as to the seriousness with which such conduct would be viewed by the Court, if it were to occur.

33 In combination, the applicant points to on the availability of stable accommodation, gainful employment and a supportive employer, strong extended family support for himself and his partner, a lack of extensive prior criminal history and the fact that this is his first time in custody to rebut the respondent's submission that the applicant poses an unacceptable risk as outlined by the respondent.

34 Regarding the test for exceptional circumstances, the respondent disputed the proposition that the applicant's likely time on remand would exceed any sentence of imprisonment, especially if charge 1 is able to be made out. It was put that the prosecution case is not weak regarding trafficking of drugs, and, in terms of charge 1, much will depend on the ultimate analysis of the drugs. Whether or not the substance meets the threshold for commercial quantity will depend on the formal analysis of the seized substance but it cannot be assumed that it will not meet that threshold on further testing.

35 Although delay was conceded to be a relevant factor, it was argued that the delay would not necessarily be inordinate.

36 Upon an indication from the Court that the Court could well be satisfied as to a combination of circumstances amounting to exceptional circumstances, the respondent's counsel directed her focus towards issues of risk. Regarding unacceptable risk, it was conceded by the respondent that the two key concerns regarding unacceptable risk were the risk that the applicant may reoffend because of his recent drug addiction; and the risk that he might interfere with evidence due to a suspicion that an attempt was made by an associate of the applicant's to enlist the applicant's partner to help wipe date from the applicant's mobile phone following his arrest.

37 Ms Stokes submitted that there is evidence to suggest a possibility that the alleged trafficking was occurring when the applicant was still on his CCO and it is also significant that he was still using methylamphetamine at the time of his arrest. He admits he was using drugs at the time of his arrest, which was soon after the completion of the CCO, so there are concerns about his ability to remain abstinent from drugs and about an underlying risk that future drug use will lead him back into offending. It was noted that the applicant has only been on remand for 25 days and it was argued that this is unlikely to be a sufficient time to break his drug habit.

38 I am satisfied that exceptional circumstances are made out in this case due to a combination of the following circumstances:

(a) Although currently charged with commercial trafficking, it is entirely possible that the prosecution will not be able to establish trafficking at that level due to either lack of sufficient quantity to meet the requirements under schedule 11 of the Act or lack of proof of intent to traffick in that quantity.

(b) Regarding delay, I accept that there is likely to be delay in years rather than months to finalisation of the current charges, if the charge of commercial trafficking is maintained. I am unable to determine, at this early stage, whether the time that the applicant would spend on remand would exceed his likely sentence, if convicted of commercial trafficking.

(c) While the applicant's criminal history contains relevant convictions, including for drug trafficking, it is not an extensive prior history, and this is his first time remanded in a prison. The CCO that he was placed on for the previous drug trafficking and related matters was successfully completed. Although he has prior convictions for failure to appear, they do not appear to relate to bail for serious charges, and he has no prior convictions for breaching conditions of bail or offending whilst on bail.

(d) The applicant is an Aboriginal person and considerations of s 3A of the Bail Act apply to him. I accept the submissions made by the applicant regarding the heightened relevance of this factor for him at the current time.

(e) The applicant's family circumstances are particularly important as a factor in favour of bail, due to the impending birth of his child, which follows the loss of baby Hope last year.

(f) The applicant is suffering increased levels of depression and anxiety in custody, since being placed on remand, and appears to be in need of a greater level of treatment in response to his symptoms than that which has been made available to him.[13] The time he has spent on remand has been particularly difficult, having been located in four different institutions and subject to COVID-19 quarantine, without access to programs or work, and in circumstances where he spends most his time alone in his cell.

(g) The applicant has good family support both from his partner, whom he describes as 'his rock', and from his extended family.

(h) The applicant has a stable residence to return to where he can assist his wife with the new baby when the baby arrives, and where he can also help with his stepson. As well as the work that is available to him as a concreter, when the new baby arrives he will be fully occupied with domestic tasks.

(i) The applicant has employment available with a very supportive employer.

(j) The applicant has CISP support, which appears carefully considered by CISP and well directed the applicant's specific needs and he has demonstrated a past capacity to engage well with mental health, AOD and community based justice support.

39 Regarding unacceptable risk, I accept that the applicant poses a risk of reoffending due to his battles with drug addiction over the past few years. The applicant's recent relapse into methylamphetamine use appears to coincide with significant life stressors following the death of his father and his baby daughter. However, as noted he has a limited criminal history and has previously engaged well with CISP and a CCO. Furthermore, the time he has spent on remand without being able to smoke methamphetamine should act as a circuit breaker facilitating his abstinence from drugs when he is released.

40 It appears to the Court that with the strong network of support and rehabilitation available through CISP together with the extensive family support that is available to him, stable accommodation with his partner and strict bail conditions, the applicant is likely to comply with bail. The applicant appears to be motivated at the present time and has had a little under a month to reflect on his current circumstances.

41 Regarding the suggested risk of interfering with evidence, I am not satisfied that any such risk can be attributed to the applicant and it has been made very clear to the applicant, in the course of this bail application, just how seriously the courts regard interference with witnesses or evidence.

42 It is unlikely that the applicant would fail to appear on these serious charges, given his long-term residency in the Gippsland area and his family obligations.

43 The applicant has expressed a willingness to pursue treatment as recommended by CISP and has been found to show a degree of insight regarding his need for supervision and treatment. I consider that the family circumstances that he is currently experiencing will provide a very high degree of motivation for the applicant to comply with bail conditions.

44 The applicant addressed the Court regarding the employment flexibility offered to him by Steve C and his positive attitude to that workplace. The employer's letter is very supportive of the applicant as a valued employee. Stable employment with his past employer should ensure that the applicant is kept occupied and will assist him both financially and in maintaining his mental health.

45 For all of the abovementioned reasons, which draw upon the factors spelt out in more detail in the earlier part of this ruling, I consider that with appropriate conditions of bail, the risk posed by the applicant is not unacceptable. Accordingly, bail is granted with conditions.

[1] Affidavit in Support of an Application for Bail dated 30 September 2022; Affidavit in Response affirmed by Abbey Hogan dated 13 October 2022; Further Affidavit in Support of Bail Applicant affirmed by Michelle Lester on 14 October 2022; and Applicant's Outline of Submissions dated 14 October 2022.

[2] Name and details of employer provided to the Court by letter from the proposed employer.

[3] A letter was provided signed Steve C dated 29 September 2022 in which Steve C referred to the applicant as a valued member of his team and a talented and reliable concreter.

[5] Ms Hammond's assessment of the applicant's suitability for CISP noted that while the applicant presented in custody with an increase in anxiety, he only received Ventolin by way of treatment.

[8] Namely trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity applicable to that drug or those drugs (schedule 1, item 6(b).

[11] Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007), cited by Bell J in Re SE.

[12] [2020] VSC 196, [38].

[13] It is particularly concerning that the applicant made a relatively recent suicide attempt.