DPP v Fielden

1 February 2024 and have been in custody since that date.

1. At the time of that alleged offending you were on five lots of bail.
2. Four of those were for dishonesty, driving, weapons and drugs offences variously committed in March, April, June, August, November and December 2023, and January 2024. One of those briefs contained a charge of trafficking in a drug of dependence. That is a Schedule 2 offence.
3. You were also on bail for rape which was alleged to have been committed in January 2021. Rape is also a Schedule 2 offence.

1. As a result of being charged with the Schedule 2 offences for the January 2024 incident, namely the aggravated intentionally exposing an emergency worker to risk by driving, and the alternative reckless versions, you must show exceptional circumstances which justify the grant of bail. That burden is yours.
2. If, on taking into account the surrounding circumstances, I am satisfied that exceptional circumstances exist, I must then move to the second part of the bail test - whether you are nonetheless an unacceptable risk. The prosecution bears the onus of satisfying that second test.
3. At both stages I must consider the surrounding circumstances outlined in s3AAA of the Bail Act 1977.

1. Mr Lavery l argues that there are three main considerations which found exceptional circumstances.
2. (1) That there are arguable matters at trial and in his estimate, the prosecution case on the most serious offences is likely to fail.
3. (2) That you have spent a considerable amount of time in custody which would likely eclipse any sentence imposed if you are found guilty of the most serious offences or any of the offending covered by this incident. That argument relates not only to the presentence detention referable to this incident, but also what is known as R v Renzella[1] time which I will come to.
4. (3) That in relation to the trafficking charge, it was indicated on the day of arrest and plea that that charge would be withdrawn. Due to a delay in that matter being able to be finalised, you were in fact bailed on that charge despite the prosecution's indication in court that the trafficking charge would be withdrawn. Ultimately it was. Equally, the ultimate outcome of the rape charge was that your conviction was quashed by the Court of Appeal.

1. Taking those matters in turn:
2. While there may be triable issues in this case, I accept that the prosecution case is a strong one. The entire incident is caught on body worn camera footage and supplemented by statements from the various police who attended.
3. Whether the main charges which have now been laid do succeed is a jury matter in due course, however based on the statement of Officer Wheeler in company with the footage, and potentially with accounts from those police in pursuit, there is clearly a case to answer on Charges 5 and 7, or in the alternative reckless versions of the same offence contained in Charges 6 and 8. Charges 5 and 7 are Category 1 offences which carry mandatory imprisonment and are subject to a 20 year maximum term.
4. In addition, there are a number of other charges contained on the indictment which are also serious and to which to my observation and taking the prosecution case at its highest have prospects of success.
5. That matter does not constitute exceptional circumstances in my view.
6. By way of comment I suggest that if there are admissibility issues to be argued, they could be brought on for pre-trial argument ahead of trial.
7. Turning to the likely sentence you would receive if found guilty of any of those matters:
8. If you are found guilty of the main charges, in my view the sentence likely to be imposed will be beyond the available 382 days presentence detention.
9. I reach that conclusion based on the seriousness of that offending and on your extensive prior criminal history, and the aggravating feature of being on five other grants of bail at the time.
10. Your criminal history includes relevant matters such as two prior offences of dangerous driving while pursued by police dealt with in December 2019 and November 2020, along with charges of drive in a manner dangerous, careless driving and speeding matters, failing to stop a vehicle on police direction, and numerous driving whilst disqualified charges.
11. Your offending here is aggravated by the fact that your driving was while disqualified, and more pertinent, while you were under the effects of illicit drugs. You admitted to the assessing doctor at Warragul Hospital Emergency where you were taken on the night of the instant offending, that you had used GHB and ice. You have numerous prior convictions for similarly driving under the influence of illicit substances.
12. Your offending is further aggravated by the presence of the large knife found in the vehicle after it came to a halt. Police were understandably concerned for their welfare when you made moves to reach that weapon on initial contact. Your history of offending also includes many weapons and drug related offences. Your drug addiction is chronic.
13. I accept that there is an issue regarding the dead time - or Renzella time - served in relation to the rape charge. That amounts to 678 days or approximately 1 year and 8 months. There will be no capacity to declare any of that time as referable to any sentence you receive on the instant charges.
14. That is a significant period of time, a portion of which - approximately a year or more on my reckoning - was served during or in the aftermath of the COVID pandemic. No doubt that was a difficult time for persons in prison, and I accept you experienced those difficulties.
15. That period of 678 days relates solely to the rape allegation. It reflects that period of about two years between January 2021 when the allegation was made and you were originally remanded, and February 2023 when you were awaiting trial. On the granting of a permanent stay in February 2023 you were bailed pending an appeal by the Office of Public Prosecutions. That appeal was ultimately successful.
16. It is while you were on that bail for rape that you committed further offences as I have described between March and December 2023 and January 2024, each time being apprehended and granted bail. Those are the four additional grants of bail you were on when this incident occurred in January 2024 and you were ultimately remanded.
17. Your rape trial proceeded in April 2024 and you were found guilty and remanded and sentenced on that charge on 30 April. Although your conviction on the rape was ultimately quashed by the Court of Appeal in November 2024, you did remain remanded on the matters before me and as such that period of remand is also referrable to this offending and can be declared if you are ultimately sentenced on this matter.
18. Therefore to summarise, the Renzella time only relates to the initial period of remand which occurred before this offending.
19. In that sense, although it is Renzella time, it will be of only limited relevance to any sentence on this offending, forming something of a background fact relevant to totality.
20. I do not view that as an exceptional circumstance. It is the consequence of other allegations which have now been concluded. No doubt it was a difficult period of time for you and given your ultimate acquittal on the rape charges you no doubt feel aggrieved at having spent that time in custody. I take into account the fact that a portion of that remand was during COVID and in particular for you that period included the time when your father died. You were apparently close to him and living with him. You were unable to attend his funeral. I accept that must have been difficult for you. But those facts do not relate in any way to the offending before me on which you seek bail, other than a general consideration relevant to totality should you be sentenced.
21. Further, in my view if that Renzella time of 678 days had run sequentially into your presentence detention for this offending, the consideration might be different. In other words if you had been in custody without any interruption for 678 days plus the 382 days for this matter, there would be a good argument to say it was exceptional. There would be a good argument because it would represent an extended period of time where you had been out of the community, drug-free and with the potential to make positive decisions about your own rehabilitation.
22. However, and despite what you say was a difficult period of remand during the COVID period, when you were bailed in February 2023, you very quickly started offending. These are not allegations but proven offences. They commenced within weeks. Drug use apparently recommenced within days despite that lengthy period of time awaiting the rape trial. The offending occurred almost monthly between March 2023 and January 2024. You were repeatedly bailed including on CISP bail.
23. For those reasons I do not accept that the sentence that you are likely to receive would be eclipsed by the time spent on remand specifically for this offending or that the consideration of Renzella time elevates that fact to exceptional circumstances.
24. In relation to the third aspect relied on to found exceptional circumstances, I do not accept that it constitutes anything exceptional.
25. The fact is, you were on bail for two Schedule 2 offences - rape and trafficking in a drug of dependence. It is not to the point that one of those was withdrawn and on the other your conviction was quashed. It is not at all unusual that having been bailed on a particular charge, the ultimate resolution either by agreement or by verdict relates to a different charge or sometimes a lesser charge.
26. A court at the point of bail must take into account the alleged offending reflected in the charges as at that time in order to determine the appropriate bail test. Here, the reality and the fact was you were on bail for not one, but two Schedule 2 offences. There is nothing exceptional about the fact that those charges have ultimately not been proven.
27. Taking individually and taken in a cumulative way I do not accept that there are exceptional circumstances which justify the grant of bail in your case.

1. If I am wrong in that conclusion, and for completeness, I turn to the test of unacceptable risk.
2. The prosecution submit you are an unacceptable risk of endangering members of the public if released either by reoffending or by other means and further that you are an unacceptable risk of failing to surrender yourself into custody in accordance with your conditions of bail.
3. Your risk of endangering others can be easily summarised. You have an appalling criminal history of repeated offending. You have been charged 280 times.
4. Your history dates to at least 2008 and includes court appearances in 2009, 2010, 2013, 2014, 2015, 2016, 2018, 2019, 2020, 2021, 2022, 2023 and 2024
5. What your criminal history also reveals is that courts at various times imposed dispositions aimed at your rehabilitation, such as community correction orders and CISP bail. You have breached each and every one. The only authority you apparently obeyed was the parole board.
6. You have had periods of imprisonment imposed on you, including terms of 13 months and eight months. Even the salutary experience of being in custody, and including as I have described during the pandemic and the death of your father, was not enough to deter you from getting out and reoffending throughout 2023, and including being involved in this matter in 2024. The summary of the 2023 matters is salutary reading involving dealing with proceeds of crime, theft of motor vehicle, handling stolen goods, drugs matters, possessing controlled weapons, and committing offences on bail. Those matters adequately demonstrate your serious risk.
7. At times as I have said in your history, you have been released to a community corrections order, obviously in the hope that sobriety in custody might lead to change. Unfortunately It has not. Imprisonment has apparently not had enough of a deterrent effect.
8. Arguably, having been granted a permanent stay on a rape charge with a 25 year maximum penalty, and knowing there was an OPP appeal on foot, you should have been obeying the law to the letter. But you did not. I will not read out the summary of offending in 2023 and 2024 which is contained in the remand summary. It speaks for itself. In my view, and without knowing what was put before the magistrate in mitigation, you were extraordinarily lucky to receive the sentence you did in July 2024.
9. You yet again ignored court orders. You ignored help available to you via CISP, and you reverted to criminal offending.
10. I am satisfied that you pose an unacceptable risk of endangering other members of the community. The good Samaritan who called for help when she found you slumped unconscious in your car on the occasion in January 2024 ultimately had to take evasive action to avoid being hit by you as you sped away, and then she had to flee to a neighbouring house.
11. This was not the first time a passerby sought to offer help when you were so drug-affected that you were unconscious in your vehicle. A car, in your hands, is a lethal weapon. You are sadly the type of person who will kill someone on the road if you do not take stock of your drug addiction. That will be someone innocently going about their business, someone like your mum, or sister or like the person who tried to help you.
12. Driving under the influence of ice and GHB is a recipe for disaster, but this is one of many times you have driven, unlicenced and drug-affected.
13. I am also satisfied that any police officer who is called and has to deal with you is at risk of harm from you. That is demonstrated by the events captured on the body worn camera footage in January 2024. It is reflected in a number of your prior matters. Alongside your attitude to court orders, your attitude to police is extremely poor. I have no confidence that you would comply with any direction given by police, or with any condition of bail which required you either to report or to answer the door to a curfew check. Police should not have to be exposed to that type of known risk. First responder paramedics would also be at risk of harm if dealing with you under the influence of drugs.
14. I accept that in your criminal history you have six charges of breaching a community correction order;
15. Eleven charges of committing an indict offence on bail;
16. Two charges of breaching conduct conditions of bail;
17. Five charges of failing to appear;
18. In addition some 33 charges of driving either disqualified (13) or unlicensed.
19. I reject the submission of counsel that your risk is not unacceptable or that your risk can be managed by conditions which include living at your mother's, not using drugs and not contacting witnesses.
20. There is no condition proposed which could give me any confidence at this time that you could comply with bail. Your mother is well-meaning, but she clearly has her hands full and I accept the evidence of the informant - you are a grown man, 35 years old. Despite her best intentions, I do not accept that your mother will have any real capacity to exert control over you.
21. The proposed conditions do nothing to allay my concerns about releasing you back to the community. I agree with Mr Petric there is a paucity of evidence to suggest you have taken real steps towards your rehabilitation.
22. I do have the one clear drug screen from June 2024 and I now have several additional certificates regarding courses you have undertaken in custody. That includes four courses during September 2024, one in October, and a letter in November 2024 which confirms you completed a 10 week course regarding recovery and prosocial change. I commend you for undertaking those courses, in particular your commitment to the 10 week course. I understand it is not always easy to access courses in custody. The problem is there is nothing suggested for ongoing rehabilitation on release. You are aware of the existence of Latrobe Valley Community Health as a result of your CISP bail however there is nothing setup or contemplated to deal with your drug addiction on release. Sadly your past history shows that even after terms of imprisonment your decline to drug use has been rapid.
23. There is no evidence before me which could give me confidence about your capacity to resist drug use on your release, despite those positive efforts in custody.
24. For those reasons I accept the prosecution submission that you are an unacceptable risk of endangering others and/or failing to answer your bail if released. For those reasons, Mr Fielden, bail will be refused.

[1] R v Renzella [1999] VSCA 85