IN THE MATTER of the Bail Act 1977 v IN THE MATTER of an application for bail by NP

2 On 21 May 2021, the applicant was refused bail in respect of the matter concerning complainant LB on the basis that he had failed to demonstrate exceptional circumstances justifying a grant of bail, and in any event, was considered to be an unacceptable risk of endangering the safety and welfare of any person or committing an offence if granted bail. At that point, it was contemplated that the trial would occur sometime in the course of the present year.

3 As indicated, there are two separate complainants and two informants. In relation to the complainant, JP, the relevant circumstances are, in brief compass, as follows.

4 The complainant, JP, and the co-accused, PM, had known each other for approximately three years prior to the alleged offending, with the complainant previously working for PM. The relationship turned sour in 2019 due to the complainant and co-accused alleging thefts against each other.

5 Between November and December 2019, the complainant and co-accused exchanged text messages threatening to harm each other if the alleged stolen items were not returned. I understand that the applicant was not known to JP.

6 On 15 July 2020, PM arranged to attend the complainant's residence in an attempt to retrieve some items. PM attended at 9:00 am that morning, with the applicant, an unknown male, and an unknown female.

7 The co-accused approached the complainant and began assaulting him by punching him to the body. The police allege that the applicant then began assaulting the complainant with a machete, whilst the unknown male assaulted him with a baseball bat. The applicant and unknown male told the complainant that they would return and then left the complainant's residence.

8 Upon retreating, the complainant realised his right index finger was bleeding heavily. The complainant's mother, who witnessed the assault, contacted police and the complainant was conveyed to hospital. The complainant sustained a laceration to the entire length of his finger and multiple fractures. He will not regain full function of the finger.

9 I was informed that there is apparently no medical evidence as to the nature of the injury and the extent to which it is protracted, so as to come within the definition of serious injury in the Crimes Act 1958. I also understand that neither JP nor his mother were able to identify the applicant. Arising from that alleged incident, the applicant is charged with intentionally causing serious injury in circumstances of gross violence, and in the alternative, recklessly causing serious injury in circumstances of gross violence.

10 In the other matter, in which the complainant is LB, the circumstances as alleged by the prosecution are as follows.

11 In May 2020, the complainant, LB, purchased a vehicle from a PJ for approximately $8,700, but could not satisfy the full payment. He still owed PJ $800 at the time of the alleged offending and decided to advertise the vehicle for sale to repay the debt. The vehicle was stored at a friend's address in Alfredton.

12 On 14 July 2020, the applicant contacted the complainant regarding the vehicle and agreed to purchase it in exchange for $3,500 and half a gram of methamphetamine. The complainant had previously undertaken transactions with the applicant in exchange for methamphetamine.

13 At approximately 4:20 pm on 15 July 2020, being the same date as the alleged offending involving JP, the applicant met the complainant at the Alfredton address. The applicant requested to take the vehicle for a test drive alone, which the complainant refused and stated that he would accompany the applicant.

14 As the complainant sat in the passenger seat, the applicant pointed a sawn-off double barrel shotgun at him and threatened to shoot him if he did not give him the vehicle. He stated that he was instructed by PJ to retrieve the car and that the complainant was lucky he did not bring his machete as he had 'just chopped off someone's fingers off earlier.' Once the complainant exited the vehicle, the applicant drove away in it.

15 I note that in his first statement to police, LB did not mention the machete, this statement being given on 16 July 2020. It was not until 22 July 2020, some days later, that LB mentioned the machete. It also appears that another witness, who was in the vicinity and came close to the vehicle, says that he looked into the vehicle and did not see a shotgun.

16 Shortly after the incident, the complainant was contacted by a friend and advised that if he returned the number plates and money owed, he could have the vehicle back. The complainant reported the incident to police.

17 On 17 July 2020, police conducted a search warrant at the applicant's parents' address in Brown Hill, where they located the complainant's vehicle bearing stolen number plates, a machete, and a shotgun cartridge in the applicant's bedroom. The applicant's and JP's DNA have been linked to the machete. No shotgun has been recovered.

18 In relation to this incident, the applicant is facing charges of being a prohibited person possessing a firearm, aggravated carjacking, making a threat to kill, handling stolen goods, and two counts of possessing a drug of dependence in relation to some drugs that the police found.

19 Given the nature of the offending, the applicant must show that there are exceptional circumstances.

20 When interpreting and applying the Bail Act 1977 ('the Act'), the Court is required to have regard to the guiding principles set out in s 1B and I do so.

21 The applicant is accused of aggravated carjacking, which is a Schedule 1 offence within the meaning of the Act,[1] and also because the offending in relation to the injury charges occurred when the applicant was on a Community Correction Order ('CCO'). In order to be entitled to a grant of bail, he must satisfy the Court that there are exceptional circumstances justifying the grant of bail.[2] In determining whether exceptional circumstances exist, the Court is obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[3]

22 If satisfied that exceptional circumstances exist, the Court must then move to consider the unacceptable risk test.[4] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such a risk is unacceptable.[5] In determining whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[6]

23 The phrase 'exceptional circumstances' is not defined in the Act. It has been considered in a number of cases. Justice Kaye in Re KE,[7] sitting in the trial division, said, 'in essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which individually might not be considered to be exceptional.'[8]

24 Before coming to the applicant's contentions in support of the application and the respondent's arguments against the grant of bail, I note a couple of matters in relation to the applicant.

25 The applicant is 40 years old. He grew up in Victoria with his parents and five siblings. He completed year 12, then moved to Melbourne and worked as a plasterer. He has two children with his former partner, who are aged 16 and 14.

26 It appears that the applicant began using cannabis by the age of 15 and by 33 he commenced methamphetamine use following the breakdown of his relationship, child custody issues, and the death of his sister. As will appear, as the applicant's use of methamphetamine increased, it was associated with a good deal of criminal offending.

27 The applicant has a significant, and for present purposes, relevant criminal history spanning 2003 to 2020. In more recent times there are a number of matters to which I now refer which are relevant to the current application:

• June 2016: the applicant was sentenced to an aggregate term of seven months' imprisonment and a CCO for a period of 18 months for a consolidation of offences against the person, bail, drug, property, weapon and driving offences. The conditions of the CCO included to undergo 150 hours of community work, supervision, drug and alcohol treatment, mental health treatment and offending behaviour programs.

• October 2017: the applicant was sentenced to an effective total term of 15 months' imprisonment, with a non-parole period of eight months for a consolidation of offences against the person, property, drug, driving, bail, and weapon offences, and contravention of the CCO imposed in June 2016.

• July 2019: the applicant was sentenced to an aggregate term of 87 days' imprisonment for property, bail, and weapon offences.

• April 2020: the applicant was sentenced to 109 days' imprisonment and a 15 month CCO, again for an array of charges involving property, driving, bail, drug, and weapon offences. Once again the conditions of the CCO included a requirement to undergo supervision, drug and alcohol treatment, offending behaviour programs, and judicial monitoring. The alleged offending for which the applicant currently seeks bail occurred while the applicant was serving the CCO.

28 The applicant submits, in order to establish exceptional circumstances, that there are three principal matters that should lead the Court to conclude that the circumstances are exceptional.

29 The first of those is delay. The applicant has currently been on remand for 17 months - the longest period in which he has been incarcerated. The applicant's trials were due to commence in October 2021, however were not reached, and at present the trials are listed to commence on 15 March 2022. The applicant's counsel notes that the date is associated with some uncertainty due to the pandemic. It is also submitted that not only is there a delay, but the period of incarceration on remand has been particularly onerous with the absence of visitors and the risks of COVID-19 within the prison environment.

30 The second aspect of the claim of exceptional circumstances concerns the strength of the prosecution case. The applicant submits that there are evidentiary issues in both matters and therefore the applicant has good prospects of acquittal. In large part, that turns on the fact that LB, who is the complainant in the carjacking offence, also gave an account of the applicant admitting to chopping off someone's finger with a machete earlier in the day. That evidence is said to be central to the Crown case. For that reason, the applicant submits that the grouping of offences depends on the credibility of LB, who it is submitted is a thief and a drug user who was associated with the applicant in relation to the purchase of methamphetamines. It is submitted that for that reason, the prosecution case is weak as it depends on the unreliable evidence of LB. In addition, it is noted that no gun was found when police executed a warrant and the witness who was at the scene did not observe a shotgun.

31 The third basis upon which exceptional circumstances are said to be present concerns the availability of treatment at a residential rehabilitation program in Shepparton. It is proposed that if granted bail, the applicant will reside at a premises called The Cottage, which is a residential rehabilitation facility which would take the applicant from 16 December 2021 for at least four months. It is submitted that this will be the applicant's first opportunity to undertake residential rehabilitation and it will involve intensive supervision and programs. It is noted that after a period of time there will be some opportunity for day leave, but the applicant will be closely supervised and if the applicant absconded or returned a positive urine screening while there, The Cottage staff would notify the informant, the applicant's family, and legal representative, which would significantly reduce any risk of the applicant being released on bail.

32 It is said that the combination of these three matters - delay, weaknesses in the prosecution case, and availability of residential rehabilitation - renders the circumstances exceptional. It is further said that any question of unacceptable risk, notwithstanding the criminal history of the applicant, could be ameliorated to an acceptable degree by the imposition of conditions, including a residence requirement at The Cottage.

33 The respondent opposes bail on the basis that the applicant has failed to demonstrate exceptional circumstances that justify a grant of bail. It is further opposed on the basis that the applicant poses an unacceptable risk of committing further offences on bail and endangering members of the public. In that respect, the respondent points to the fact that the applicant has offended on four different occasions while he has been on bail. In relation to treatment, the applicant has had three CCOs which included drug treatment components and which ended up being ineffective, in the sense that the applicant reverted to drug use.

34 The respondent also submits that given the nature of the offending, which is extremely serious, the applicant poses a risk to the safety of the public.

35 It also contends that the prosecution's case is not weak and in particular notes the evidence that a machete was found at the applicant's premises and that the testing showed JP, who was not otherwise associated with the applicant, was a contributor to DNA found on the machete.

36 I am not satisfied that the circumstances relating to the applicant are exceptional in the relevant sense. I accept, as the applicant's counsel urged upon me, that each of the three critical matters relied on by him have to be seen cumulatively. Nevertheless, it is convenient to consider each in turn.

37 In relation to the question of delay, it is significant that the trial is now listed to commence on 15 March 2022. Although there is a risk that the trial will not proceed on that date, it is appropriate to proceed on the basis that there is a listing which is likely to be fulfilled and, of course, in the event that that does not occur, that would result in a change of circumstances in respect of which the applicant might be in a position to approach the trial judge.

38 I acknowledge that the applicant has had a long period of remand in particularly onerous circumstances, however, the present question is whether the continued delay between now and the trials, which are some few months away, would be such as to justify the grant of bail, rather than whether the time already served is such as to justify bail. It is principally a forward looking question from today. Having said that, I take into account as a factor to be weighed in assessing the existence of exceptional circumstances, the particularly onerous and extensive period of delay that the applicant has presently sustained. On its own, the circumstance of delay is not out of the ordinary.

39 In relation to the weaknesses or otherwise of the Crown case, I note that the offending is serious, involving two incidents, both with a weapon. The prosecution case, obviously in relation to the LB matter, depends on the credibility of LB, and he is also a critical witness in relation to the alleged admission regarding the JP matter. Nevertheless it is not uncommon by any means that the prosecution case will depend on the credibility of a particular witness. The Court, on the present application, is not in any position to assess, in any overall sense, the credibility of the witness, even accepting that the evidence might suggest that he had been involved in either some theft or drug use. Looked at globally, I am not satisfied that the prosecution case could be described as weak in either of the two trials.

40 In relation to the question of rehabilitation, of course it is an important factor to weigh in the balance that the applicant has not had residential treatment in the past. Nevertheless, in looking at exceptional circumstances, I take into account the fact the applicant has had three CCOs with drug treatment conditions on them. In respect of the last CCO, it seems pretty clear that that resulted with the applicant reverting to, or relapsing, to drug use.

41 Looked at collectively, I am not satisfied that the circumstances relied on by the applicant constitute exceptional circumstances justifying bail. Even if I were wrong on that assessment or I was otherwise satisfied that there were exceptional circumstances, I am of the view that the applicant would be an unacceptable risk of further offending or absconding if granted bail.

42 I reach that conclusion having regard to the applicant's criminal history which is extensive, and in particular, the recent events over the last five years, and the fact that the applicant has committed offending while on bail on four occasions. In my view, he remains, if granted bail, an unacceptable risk.

43 I am not satisfied that the risk which I have identified and am satisfied exists could be rendered acceptable by the imposition of conditions, including a condition as to residence at The Cottage. In that circumstance, it is noted that the applicant would be free to leave The Cottage at any time and, in those circumstances, although The Cottage staff would notify the informant, there would still be a risk that the applicant would be at large and I am persuaded that the risk in those circumstances would be an unacceptable risk.

44 For those reasons, the application for bail is refused.

[1] Bail Act 1977 sch 1, item 5.

[2] Ibid ss 4AA(1), 4A(1A)-(2).

[3] Ibid s 4A(3).

[4] Ibid ss 4A(4), 4D(1)(a).

[5] Ibid ss 4D(2)-(3), 4E.

[6] Ibid s 4E(3).

[7] [2021] VSC 175.