IN THE MATTER of the Bail Act 1977 (Vic) v IN THE MATTER of an application for bail by RYAN EYLES

1 By application dated 16 July 2024, Ryan Eyles ['the applicant'] applies for a grant of bail from this court. He is on remand for the alleged commission of 24 offences.

2 The applicant was arrested and charged on 7 June 2024 with seven offences in which the Informant is Leading Senior Constable Scott Edwards ['the Edwards matters']. The alleged offences are:

(a) Theft of a motor vehicle;

(b) Handling/receiving/retaining stolen goods (two charges);

(c) Possessing a drug of dependence;

(d) Possessing cannabis;

(e) Possessing a controlled weapon without excuse; and

(f) Driving while disqualified.

3 Shortly after 10:00pm on 5 June 2024, the applicant is alleged to have stolen a 2007 blue Toyota Camry motor vehicle which was parked in a McDonald's car park in Diamond Creek while the owner of the vehicle was inside the store. The vehicle had been left running with the keys in the ignition. On 7 June 2024, police located the vehicle in Seaford with the applicant slumped in the driver's seat. Following the applicant being roused, the police searched the vehicle, locating a small bottle containing 1‑4 Butanediol (GHB), a wallet and multiple IDs belonging to a different person, a small amount of cannabis, along with a device used to consume cannabis, in the boot of the car. Further, police inquiries revealed that the applicant's driver's licence was cancelled and he had been disqualified from driving at the Dandenong Magistrates' Court on 27 October 2023.

4 The applicant was subsequently arrested, interviewed and bailed to 28 June 2024. He made a no comment interview.

5 Approximately three weeks after the applicant's arrest on the Edwards matters, on 28 June 2024, the applicant was arrested and charged with 11 offences in which the Informant is Senior Constable Belinda Rampal ['the Rampal matters']. These charges are:

(a) Being a prohibited person possessing a firearm;

(b) Shortening barrel of a long arm firearm;

(c) Possessing ammunition without a license;

(d) Failing to store cartridge ammunition for a Category A or B long‑arm firearm;

(e) Theft of a motor vehicle (five charges);

(f) Possessing a drug of dependence; and

(g) Driving while disqualified.

6 The applicant was remanded into custody on this date and his previous bail in relation to the Edwards matter was revoked by the Frankston Magistrates' Court.

7 It is noted that, on the morning of the application for a grant of bail from this court, the applicant's legal representatives were served with an additional six charges in the Rampal matters, these being:

(a) Driving while disqualified (two charges);

(b) Dealing with proceeds of crime;

(c) Driving a motor vehicle when directed to stop;

(d) Dangerous driving; and

(e) Theft of a motor vehicle.

8 By way of brief background, the alleged offending in the Rampal matters occurred between 16 and 28 June 2024. At this time, the applicant was on bail for the Edwards matters, referred to above.

9 It is alleged that, on 16 June 2024, the applicant stole a 2018 black Mazda CX‑9, registration number ASA973, from the victim's driveway after that person had exited the running vehicle to assist his daughter at the front door of his home.

10 On 23 June 2024, it is alleged that the applicant stole two sets of registration plates from two separate vehicles.

11 On 24 June 2024, it is alleged that the applicant stole a second vehicle, this time a 2023 white Volkswagen Tiguan, registration plates CQJ183, after the owner had left the vehicle running outside a residential property. CCTV footage revealed the applicant driving the vehicle to a petrol station in Frankston where he handed several credit cards to his partner and co‑accused, Shae Skan, to purchase petrol and cigarettes. Skan was observed driving the stolen Mazda CX‑9.

12 On 27 June 2024, it is alleged that the applicant stole a third set of registration plates.

13 The applicant was arrested the following day. Police had received information that the stolen vehicle had been observed with a male person driving it. Police members attended Skan's home address and located the stolen Mazda CX‑9 parked in the driveway. The vehicle displayed two of the previously mentioned stolen registration plates, one at the front and the other at the rear of the vehicle. As police knocked on the door, the applicant attempted to run from the premises, but was arrested by police at the scene. During a search of the vehicle, police located a travel bag in which was found a loaded sawn‑off shotgun, said to have been 'ready to fire', 2‑litres of 1‑4 Butanediol (GHB), and a further single shotgun cartridge. When searched, police located the key to the CX‑9 motor vehicle in the pocket of the applicant's jumper.

14 Following the arrest and seizure of his mobile phone, the applicant was charged with further offences related to the theft of a third motor vehicle on 16 June 2024, and his alleged involvement in a high speed police pursuit on 24 June 2024.

15 Both the Edwards matters and the Rampal matters were last listed for Mention at the Frankston Magistrates' Court on 6 August 2024.

16 Separately, on 17 June 2024, the applicant was charged with three offences in which the Informant is First Constable Matrorana ['the Matrorana matters'], being the theft of a motor vehicle; handling, receiving and retaining stolen goods; and possessing a drug of dependence. The applicant was granted bail at Narre Warren Police Station on 17 June 2024. He does not seek bail on those charges.

17 On 1 July 2024, the applicant made an application for bail before the Frankston Magistrates' Court of Victoria. The presiding Magistrate refused bail on 9 July 2024 after finding that the applicant, if released on bail, would pose an unacceptable risk of endangering the safety or welfare of the community.

18 In determining an application for bail, the court is required to have regard to the guiding principles as set out in section 1B(1) of the Bail Act 1977 ['the Act'].

19 Notably, a person who is accused of an offence and is being held in custody in relation to that offence is entitled to bail unless the court is required to refuse bail in accordance with the Act.[1] Section 4AAA of the Act outlines the circumstances in which bail must not be refused. Furthermore, section 4AA of the Act outlines the circumstances in which the two‑step test applies to the determination of a bail application. As no such circumstances exist in this case, the applicant is prima facie entitled to a grant of bail, subject to the unacceptable risk test.

20 The Act provides that the court must refuse bail if it is satisfied by the respondent that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that risk is unacceptable.[2] In considering whether a risk is unacceptable, the court must take into account the surrounding circumstances set out in section 3AAA(1) of the Act, and consider whether there are any conditions that may be imposed to mitigate the risk so that it is not unacceptable.[3]

21 In making a determination of bail in relation to an Aboriginal person, the court must take into account any issues that arise due to that person's Aboriginality, including:

(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over‑represented in the criminal justice system, including in the remand population;

(b) the risk of harm and trauma that being in custody poses to Aboriginal people;

(c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;

(d) any issues that arise in relation to the person's history, culture or circumstances, including the following -

(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;

(ii) any experience of out of home care, including foster care and residential care;

(iii) any experience of social or economic disadvantage, including homelessness and unstable housing;

(iv) any ill health the person experiences, including mental illness;

(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment; and

(vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child; and

(e) any other relevant cultural issue or obligation.[4]

22 The applicant is one of nine siblings, most of whom reside in Tasmania along with his parents. The family has a long history of child protection involvement.

23 The applicant has a significant history of neglect and physical and sexual abuse by his parents and his brother. From the age of six weeks, he was placed in the care of his maternal uncle and aunt in Melbourne. He returned to his parents' care in 2009, when he was 11 years of age. However, he returned to his uncle and aunt's care after experiencing sexual abuse whilst living with his parents. In 2012, his uncle and aunt separated and he remained in the care of his uncle. In October 2014, he was placed in a residential care facility due to his uncle's inability to manage his defiant behaviour, which included associating with high‑risk adolescents, engaging in criminal activity and using methamphetamine. It appears that from February 2015, he alternated between living at residential care facilities and with his uncle.

24 More recently, the applicant resided in shared accommodation provided through the Bridge Program, however, these arrangements are no longer available to him given the length of time he has spent on remand. As I understand it, the applicant cannot at this stage propose a fixed bail address. Due to this, the Court Integrated Services Program ['CISP'] have referred the applicant to the Salvation Army for emergency accommodation and an Initial Assessment and Planning appointment for ongoing housing support, which will be available to him in the event that he is granted bail.

25 During his high school studies, the applicant was suspended for a combination of poor attendance, bullying and fire‑setting, and was later expelled due to an incident with the school principal. He completed the Chisholm TAFE Start‑Up Program. He went on to undertake apprenticeships in carpentry, worked as a car mechanic and a café barista, but did not remain in these positions due to his criminal offending. He is currently unemployed and it does not appear that any employment will be available to him upon release.

26 The applicant is a 26 year old man who identifies as Aboriginal and as a member of the Tasmanian Palawa mob. He gave evidence before me at the hearing of his bail application that his Aboriginality derives from his father's side and was discovered following a conversation with his father and brother approximately three years ago. No ancestry checks have been conducted to date.

27 The applicant's father, Kevin Eyles, also gave evidence during the hearing of the application via telephone only. When asked about his Aboriginality, Mr Eyles' evidence was that he had never undertaken any ancestry checks but was in the process of preparing a family tree. His son, Toby Eyles, had undergone a blood test which is said to have confirmed his Aboriginality.

28 The applicant has a history of alcohol and substance abuse and has reported using methamphetamine, heroin, gamma‑hydroxybutyrate (GHB) and unprescribed Xanax. He cannot recall when he first engaged in alcohol and drug use, however, indicated it was sometime during his childhood. At the time of his arrest, he was using 50 ml of GHB and up to one gram of methamphetamine a day.

29 Whilst in custody, the applicant was prescribed a Buprenorphine injection. He hopes to continue receiving this medication in the community, if released on bail.

30 Following release from his most recent term of imprisonment, the applicant is said to have engaged in alcohol and drug services. In the CISP report dated 24 July 2024, he expressed an interest in being reconnected with this service. If released on bail, CISP intend to support him with this.

31 The applicant reported a formal diagnosis of attention‑deficit hyperactive disorder, oppositional defiant disorder which was re‑diagnosed as anti‑social disorder, and severe anxiety to his CISP Assessment and Referral Practitioner on 24 July 2024. He is currently prescribed 30 mg of Mirtazapine.

32 The applicant further reported that he has concerns about potentially having an acquired brain injury as a result of two motor vehicle accidents and two overdoses.

33 The applicant has a relevant criminal history dating back to 2015, including prior convictions and/or findings of guilt for burglary, theft, deception offences, drug offences, driving offences and weapon offences.

34 The applicant was released from custody on 29 May 2024 after serving a custodial sentence imposed at the Dandenong Magistrates' Court on 27 October 2023. It is alleged that he committed the offences in the Edwards matters some seven days after his releases from custody. After having allegedly committed those offences, and bailed, he is alleged to have committed a further set of offences, as described above.

35 The applicant relies on a number of factors in support of a grant of bail.

36 As above, it is submitted that the applicant identifies as an Aboriginal man with links to the Tasmanian Palawa mob. Evidence of his Aboriginality is provided in his affidavit dated 16 July 2024. It is pointed out that the court has also heard evidence from both the applicant and his father, as to the family's links to their mob and their efforts to confirm their Aboriginality by way of family trees and testing.

37 The applicant submitted that, whilst he has a limited connection to his Aboriginality, section 3A of the Act applies to his circumstances. Counsel for the applicant urged the court to adopt the reasoning of Incerti J in Re Terei (No 3), in which her Honour said the following:

In most cases, and certainly in my experience, proof of Aboriginality has not been an issue and is ordinarily not challenged. Evidence of a person's Aboriginality is provided by affidavit as occurred in this case. This is an appropriate manner in which evidence of this kind is to be provided to the Court for the purpose of a bail application. I can see no reason why this should change or that an applicant or their legal representative should be required to do anything more than set out the basis of a person's Aboriginality as was done in this case.[5]

38 It was submitted that the applicant had gone beyond the method identified by her Honour in an attempt to satisfy the court of his Aboriginality under the Act.

39 Counsel also drew the court's attention to [60] of her Honour's reasons in Re Terei, where her Honour observed:

When faced with any application, but especially an application such as this one, the decision maker must take into account that they have an opportunity to not contribute to the systemic incarceration of Aboriginal persons.[6]

40 In consideration of all the evidence before the court, the applicant's argument is that section 3A(1)(d)(i), (ii) and (iii) is enlivened.

41 In relation to the Rampal matters, it was submitted that without any witness statements, an exhibit list or a list of witnesses, the applicant was not in a position to accurately assess the strength of the prosecution case. It appears that a full brief of evidence was due by 6 August 2024.

42 In relation to the Edwards matter, the applicant conceded that the prosecution case is a strong one.

43 On the question of delay, it was submitted that the scarcity of available evidence again prevented counsel for the applicant from making an accurate assessment as to the likely sentence, if any, imposed in the event that his client was to plead or be found guilty of some or all of the offences charged. It was submitted that, should the matter proceed to a contested hearing, it could be listed for a two‑day contested hearing early next year. It was pointed out this is some six to eight months into the future. Counsel speculated that, should the applicant be found guilty of Charge 1, being a prohibited person possessing a firearm, his likely term of imprisonment would likely exceed time spent on remand.

44 It is submitted that CISP is available to the applicant if he were to be released on bail. The court heard from Ms Emily Moloney of CROP, who undertook the assessment for the applicant's eligibility and authored a report dated 24 July 2024. The report outlines a number of supports available to the applicant, including two nights of emergency accommodation and an Initial and Assessment Planning appointment with the Salvation Army.

45 The applicant further relied on parity in relation to the grant of bail by Victoria Police to each of the applicant's two co‑accused.

46 The respondent opposes the application for bail on the basis that the applicant poses an unacceptable risk of endangering the safety and welfare of members of the public.

47 In relation to the severity of the alleged offending, it was submitted that the offending is serious when having regard to the totality of the applicant's conduct. The court heard evidence from Senior Constable Rampal, who confirmed that the sawn‑off shotgun located in the boot of the stolen Mazda CX‑9 was loaded and 'ready to fire'.

48 Turning to the strength of the prosecution case, the respondent submitted that the cases are strong ones. In respect of the Rampal matters, there are several pieces of circumstantial evidence which, considered in combination, are capable of proving the charges brought against the applicant, including (however, not limited to):

(a) he was in possession of the key to the Mazda CX‑9 at the time of his arrest;

(b) he received a text message from co‑accused, Callum Forbes, enquiring about the firearm;

(c) a number of photographs identify the applicant as the driver of the Mazda CX‑9 between 16 and 28 June 2024, including on the day of the high‑speed chase;

(d) CCTV footage captures the applicant driving the Volkswagen Tiguan some 22 minutes after it was stolen; and

(e) the applicant was identified to be in possession of the stolen registration plates located on or inside the Mazda CX‑9.

49 As indicated earlier, the applicant has a relevant criminal history. The respondent submitted that the applicant has a prior history of engaging in a pattern of deception, theft and driving offences, which warranted a lengthy term of imprisonment. Upon release, it is alleged he almost immediately returned to engaging in the same or similar behaviour, on more than one occasion.

50 The respondent submitted that if the applicant is found guilty of the firearm offences, it would be open to a court to conclude that time spent on remand would not exceed any ultimate sentence having regard to the severity of the alleged overall offending.

51 As to delay, it appears accepted by the respondent that, should the applicant's matters proceed to a contested hearing, or hearings, the next available listings are likely to be early next year. However, in all the circumstances, the respondent does not concede that this will cause significant delay.

52 As to the availability of CISP, the respondent submitted that the proposed conditions by CISP are inadequate given the applicant's history of non‑compliance and failure to embrace or adequately engage with previous support services. The respondent noted that in her evidence, Ms Moloney explained the process undertaken where applicants released on bail do not engage with CISP. It was argued the process appears to involve notifying management and the prosecution, as well as providing a report, all of which can take up to a week to complete.

53 It is submitted that the applicant has a poor history of non‑compliance with bail conditions and court orders. At the time of the alleged offending in the Rampal matters, the applicant was in breach of two sets of bail orders. It is pointed out that his criminal history also reveals contraventions of community correction orders. In the respondent's submission, the court cannot be confident that the applicant will refrain from further offending, should he be released on bail.

54 As to parity, the respondent relied on a number of factors to distinguish the applicant from his co‑accused, Forbes and Skan, who are both currently on bail. These factors include:

(a) Forbes was not on bail at the time of the alleged offending;

(b) Forbes served a shorter prison sentence and was released before the applicant;

(c) Forbes has a less serious criminal history and has not been charged with any offences relating to the high‑speed pursuit;

(d) Skan is not charged with any firearm offences and was not charged with any offences in relation to the high‑speed pursuit; and

(e) Skan has more limited priors than the applicant.

55 During the hearing, the respondent did not challenge the applicant's Aboriginality, but a distinction was sought to be drawn between the application before Incerti J in Re Terei and the present application. In short, the respondent submitted that the risk of endangerment posed by the applicant was more pronounced, particularly when having regard to the severity of the offending and his relevant and lengthy criminal history.

56 In summary, the respondent submitted that the applicant, if released, poses an unacceptable risk of endangering the public and that risk cannot be ameliorated by any bail conditions. It is further pointed out that the disqualification of the applicant's driver's license has not deterred him from driving, let alone engaging in a high‑speed pursuit, which was dangerous to the public. It is submitted that this, in combination with the applicant's drug problem, shows that he has failed to adequately address these issues and, accordingly, he poses a significant risk to the safety of the community, if he is released on bail.

57 The law to be applied to the application is set out in the course of the above reasons. It was not disputed that the applicant is prima facie entitled to a grant of bail and that neither the exceptional circumstances test, nor the compelling reason test apply to this application. Essentially, the main issue under consideration was whether the respondent can establish that the applicant represents an unacceptable risk, should he be granted bail. Acknowledging that it is well understood that a grant of bail frequently involves an element of risk, the determination in this application includes the question of whether sufficient bail conditions can attach to a grant of bail, so as to ameliorate the risk to an acceptable level.

58 The applicant submits that the respondent has failed to establish that the applicant is an unacceptable risk, and that bail should be granted. Accordingly, the following matters fall for consideration in the determination of the application.

59 The applicant submitted that in the absence of the brief of evidence, it is impossible to make an accurate assessment of the strength of the prosecution case. In contrast, the respondent submitted the cases should be regarded as relatively strong, taking into account the combined force of circumstantial evidence capable of proving the prosecution cases in respect of the Rampal matters, in particular.

60 In deciding bail applications, it is often not possible, nor appropriate, to analyse the prosecution case in detail. Nor is it appropriate for a court at this early stage to make pre‑emptive, or anything in the way final, judgements about the strength of the prosecution case. It is frequently necessary for the court to rely on a broad assessment of the matters raised in the Informant's report, as is the case here. Insofar as the court can make such an assessment in the present case, I am not in a position to conclude that the prosecution cases in respect of any of the matters brought by the two informants should be regarded as inherently weak. It seems to me, on the allegations put forward, that the prosecution has arguable cases, although acknowledging that there may well be triable issues eventually put forward by the applicant. In broad, it seems to me that in respect of the most serious matters, there exist a number of combined circumstantial facts that are capable of pointing towards the applicant's guilt of at least some of the most serious offences alleged.

58 As to delay, it was submitted that in light of the evidence being unavailable to closely examine, it is difficult for the applicant to make an assessment of how long the applicant's charges will take until resolution, and further, what a sentencing outcome might be. In my opinion, the best that can be concluded at this stage is that, should the matters proceed to a contested hearing, it is quite possible that the applicant would remain on remand until some point into the first half of 2025. Whilst it remains inconclusive as to whether there may be sentencing outcomes, and what they may be, the most that can be said is that, given the seriousness of his alleged conduct, if the applicant is found guilty of some of the more serious offences with which he is charged, it is likely a sentence imposed would exceed the period he will spend on remand.

59 Furthermore, in the assessment of the sentencing outcome, and also as to the general question of unacceptable risk, a significant factor to take into account is that the applicant has a very poor criminal history extending as far back as 2015 which involves multiple and regular instances of prior convictions for theft of motor vehicles, aggravated burglary, driving dangerously, reckless conduct endangering life and serious injury, resisting police, possession of drugs, driving whilst disqualified or unlicensed, possession of weapons, committing indictable offences whilst on bail, and contravention of community correction orders. As explained above, the applicant's last court outcome involved an aggregate of 18 months' imprisonment for multiple offences similar in some instances to those with which he is currently charged.

60 Whilst acknowledging the matters put forward by the respondent are allegations only, and that there is no past history of firearms involvements, the allegation of being in possession as a prohibited person of a loaded and 'ready to fire' sawn‑off shotgun remains one of significant concern, especially in the context of a considerable amount of drugs being found. The alleged possession of a firearm of this type is a very concerning development.

61 By way of further context, and a surrounding circumstance, is that the applicant's alleged reoffending began about seven days after his release from a significant sentence of imprisonment. During the course of the period that followed, it is alleged the applicant was involved in multiple allegations of serious criminal activity. Furthermore, some of this alleged offending occurred in circumstances where the applicant was on a grant of bail from offences also alleged to have occurred shortly after his release from prison.

62 In the above circumstances, the fact of the applicant having been alleged to have committed multiple sets of offences so soon after his release from custody, must provide the court with a serious lack of confidence that the applicant will not reoffend, should he receive a grant of bail from this court. In my opinion, the risk is a significant one that he will reoffend, and that his reoffending represents an appreciable risk to the general community, including risks that he will steal motor vehicles, that he will drive a motor vehicle when not permitted, that he will possess drugs and be drug affected and that he will carry a firearm.

59 In this application, significant emphasis was placed on the applicant's Aboriginal heritage. The applicant's counsel relied heavily on the recent decisions in Re Terei, in particular, the observations of Incerti J in Re Terei (No 1), later reaffirmed in Re Terei (No 3), in respect of the principles to be applied, and approach taken, in cases where applicants are of Aboriginal background. I have carefully read those decisions.

60 The applicant's Indigenous background and the relevance of it to this application is not in dispute, and accordingly, I have taken it into account in the ways required by the legislation, and applying the observations of Incerti J. I am mindful of, and take into account, the observations made by her Honour that decision‑makers should look beyond the personal circumstances of the individual applicant, be guided by the factors set out in section 3A of the Act, and endeavour not to contribute to the historic overrepresentation of Aboriginal and Torres Strait Islander people in custody unless there is good reason to do so. I have considered these matters as required and weighed them in the assessment of overall risk.

61 As above, I am required to make an assessment of unacceptable risk, and whether the respondent has established the applicant is an unacceptable risk as set out by the Act. As I have explained, I find particular concern in the fact that the applicant is alleged to have committed a number of serious offences so soon after his release from a custodial sentence, in circumstances where his alleged behaviour in driving a motor vehicle created a manifest risk to the public when he drove at a fast rate of speed, failed to observe a red light, and travelled on the wrong side of a road at an alleged speed of 160 kph in an 80 km zone, when as a disqualified driver he was said to be evading police apprehension. Furthermore, it is alleged that whilst he was being chased by the police, he was using a mobile telephone to text his girlfriend, Skan. Furthermore, and on another occasion, he is alleged to have been found in possession of a stolen motor vehicle, in which was located a loaded sawn‑off shotgun 'ready to fire', as well as a significant amount of prohibited drugs.

62 As well, the applicant is alleged to have committed multiple offences of stealing motor vehicles, opportunistically, from innocent and unsuspecting victims.

63 In my opinion, the circumstances of the applicant's alleged offending over such a short period after having been released from custody contributes to a conclusion that, even when taking into account all argued factors including his undisputed Aboriginal background, he is an unacceptable risk of committing further offences, should he be released on bail.

64 In the assessment of whether the applicant is an unacceptable risk, I have taken into account the evidence before the court that he can receive support from CISP. Having considered the support that is on offer, I am not satisfied that it would be sufficient to add to an amelioration of the risk to an acceptable level.

65 The matter of parity was raised as the applicant's co‑accused, Skan, did receive a grant of bail in circumstances where it appears that she has an extensive criminal history. I have taken the question of parity into account but in the end do not regard this issue as a particularly persuasive factor in this application.

67 In all the circumstances, I am satisfied that the respondent has established that the applicant is an unacceptable risk as set out in the Act and, accordingly, the application for bail is refused.

[1] Bail Act 1977 (Vic) s 4.

[2] Ibid, s 4E (1)-(2).

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

[4] Ibid, s 3A.

[5] Re Terei (No 3) [2024] VSC 423, [10].

[6] Re Terei [2024] VSC 294, [60].