Olaa v The Queen [2013] VSC 604

2 On 28 August 2013, in breach of the Notice, the applicant made telephone contact with his victim. In summary, he told his victim that he was sorry but he also asked her to drop the charges and he said that he would hand himself in. The following day, 29 August 2013, he returned to the police station, was interviewed and was charged with intentionally causing serious injury and other offences. The applicant was arrested and bailed on his own undertaking to attend court on 5 September 2013. He was served with a full intervention order that contained the same condition as the notice.

3 On 2 and 4 September 2013, on a number of occasions, the applicant made telephone calls to his victim that she did not answer. On 5 September 2013, the applicant answered his bail. However, the police successfully applied to have his bail revoked and he was remanded for committal mention on 28 November 2013. Since that time, applications for bail have been made on four occasions and have been refused. The applicant has been in custody for approximately eight weeks.

4 The requirement to show cause arises by reason of s 4(4) of the Bail Act 1977 on the ground that the applicant is charged with an indictable offence in which he is alleged to have used an offensive weapon (s 4(4)(c)). That I must refuse bail unless the applicant shows cause why his detention in custody is not justified is not in issue between the parties.

5 I will summarise the allegations of the applicant's offending. He had been in a relationship with the victim for nine years. Due to issues, including pressure from her family, the victim decided that the relationship could not continue and had begun to limit her contact with the applicant. The applicant organised a meeting. That meeting took place in his car. The victim got into his car and sat in the front passenger seat. There was conversation for approximately one hour which included the applicant expressing his concerns that the victim was seeing someone else, which was denied. The applicant told the accused that she was going to die and so was he. This was dismissed by the victim before the accused slapped her to the right side of the face. She attempted to leave the vehicle. The applicant asked the victim for her left hand, which she gave to him. The applicant asked her about a scar on her wrist and said "this is not going to end good".

6 The applicant held the victim's left arm tightly and put his weight over her. He pulled out an orange handled kitchen knife and held that towards her chest. There was conversation when the applicant had the knife placed against the victim's left wrist for, perhaps as long as, three minutes. But then the applicant sliced the victim's wrist causing a deep laceration and significant blood loss.

7 The victim states that the applicant was then in shock. She begged to be taken to the hospital and there was some delay before the victim was ultimately taken to the hospital that I need not explain for the purposes of this application. The victim ultimately convinced the applicant to take her to the hospital on the promise that she would not press charges. It was when they were at the hospital that the victim explained what had occurred and the police were called.

8 The injury that was sustained by the victim was a serious injury. So much is evident from the photograph, which is Exhibit P1. That photograph was taken by a doctor before treatment began. The informant stated that he had been told by the victim's treating doctors that 11 tendons, the medial and ulnar nerves and the ulnar artery had all been 100 percent lacerated. The victim's future prognosis is uncertain. She faces six months of therapy. At present she can pinch her thumb to her index finger but that is about the extent of the movement that is available. She has lost the use of her fingers.

9 I am satisfied for the purposes of this application that the Crown has a strong case on the charge of intentionally causing serious injury. The applicant contended that there was a prospect that a conviction on a lesser charge of recklessly causing serious injury may eventuate as it was conceivable that, if the matter resolves as a plea, the applicant might receive a non-custodial penalty. This proposition was strongly opposed by the Crown on a number of grounds. I need not explain how this argument was developed. It is not for me to anticipate the course of any negotiations or the decision of a jury or the manner in which a sentencing discretion may ultimately be exercised. I am not persuaded that the applicant's submission that the prospect that he will not ultimately serve any more time in prison than he has is sufficient for cause to be shown and I reject that submission. I will proceed on the basis that the Crown has a strong case for obtaining a conviction on serious offences that are likely to result in a significant term of imprisonment.

10 On the application the court must consider s 4(2)(d) of the Act which provides that:

A court shall refuse bail if the court is satisfied (i) that there is an unacceptable risk that the accused if released on bail would ... commit an offence whilst on bail ... or interfere with witnesses.

11 How s 4(2)(d) and s 4(4) of the Act interrelate was addressed by Maxwell P (sitting at first instance) in Re Asmar.[1] In that case, after referring to an earlier decision of DPP v. Harika,[2] the President stated:

In my view, the question - the only question - for the Court on an application to which s.4(4) applies is: 'Has the applicant shown cause why his/her detention in custody is not justified?' Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step..... This does not mean that the 'unacceptable risk' issues identified by s.4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person's pre-trial detention is justified. Parliament has made clear in s.4(2)(d) and in s.5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s.4(4) does) whether the person's detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.

12 Turning then to that question, I will commence with the contentions of the informant that the applicant's detention in custody is warranted. The informant contends, firstly, that there is a prior history of controlling conduct between the complainant and the accused. The informant refers to incidents of which he has learned through the Victoria Police LEAP database outlining police attendances on the applicant and the victim. The first of these incidents occurred on 9 March 2011 following an argument between the accused and the victim. The victim had gone to the Hallam Railway Station intending to catch a train home. The accused went to the railway station and an argument ensued about whether the victim would return with the accused. The accused then stood on the train tracks, stating that he would remain on the tracks until she agreed to go with him. The police attended, noting that the accused was in an emotional state.

13 A second incident occurred on 7 July 2012. There had apparently been an argument between the pair at the applicant's residence. Police attended but neither party wanted any police action.

14 The victim in her statement to the police in connection with this incident describes a third incident that occurred last year when they were going to break up. They had an argument that resulted in the accused producing a pair of scissors and saying that he was going to kill himself. The victim begged him to hand over the scissors and then she said "What do I have to do to get you to trust me?" She then inflicted on herself with the scissors a wound that required stitches.

15 The informant contends by reference to the circumstances of the offending and with the background of these incidents that there is a real risk that the accused will continue to attempt to contact the victim and a real risk that he may try to harm her.

16 Secondly, the informant contends that the nature and circumstances of this offending, of itself, have characteristics that warrant an inference that the victim remains at serious risk of further harm from the applicant. The inferences are warranted that the applicant knows that he faces gaol. The applicant is a person who is completely unwilling and unprepared to accept that the victim has the right to make a decision to end their relationship. The circumstances of his offending bear many characteristics in common with offending that may later lead to more serious consequences for a victim.

17 In this respect, the respondent's counsel pointed out that the applicant was the person who arranged the meeting, that it took place in his car, a safe location for his purposes, that he had a weapon with him close at hand, that he showed suspicions about the victim being involved in another relationship, which is a very common feature of this sort of attack, and that the actual attack itself was preceded by the applicant threatening to kill his victim and by slapping her and then deliberately keeping her prisoner in the car leading up to the attack. He stressed that the actual attack itself was preceded by the applicant demanding to be given her left arm, which he then held tightly, that being the arm where she had self-harmed previously on the occasion of some conflict between them.

18 Thirdly, the applicant has continued to contact the victim after a family violence safety notice was served on him, after an intervention order was served upon him and in breach of conditions of his bail undertaking. I have set out the circumstances in which that conduct occurred.

19 Fourthly, the accused knows where the victim lives and as the conduct to which I have just referred shows, he is unable to abide by the 'no-contact' conditions. Further, and in this context, it is noted that after committing the crime, he did nothing to try and help his victim and he did everything to try and help himself.

20 Fifthly, a real risk that the accused may attempt to contact the victim and may attempt to harm her can be inferred from the fact that the accused is facing a substantial term of imprisonment and, with his controlling nature, there arises a real concern that the applicant continues to be a threat to her. The applicant could seek to help himself now either by putting pressure on his victim or by hurting her so that she does not end up being a witness against him, because he appreciates, as presumably anybody would, that deliberately cutting someone's wrist leads to a substantial term of imprisonment.

21 The applicant contends that cause is shown that his detention in custody is not justified by reference to the following matters. First, although the injury is a serious injury and that the matter is a serious offence the matter could ultimately resolve in a disposition that is either non-custodial or does not require him to serve further time. I have rejected that submission.

22 Second, the applicant has been assessed by Mr David Ball, a psychologist as being at low risk to the complainant and of being at low risk of re-offending. I will return to Mr Ball's assessment.

23 Third, the applicant has served about eight weeks in custody. Fourth, he is currently being housed with sex offenders in the Deakin A Unit at the Metropolitan Remand Centre for two reasons: overcrowding conditions in the prison and his protection.

24 Fifth, he has had no prior contact with the police and no prior record of offending.

25 Sixth, the conduct that was in breach of the Family Violence Notice, the Intervention Order and the bail conditions did not involve personal contact, that is, face to face contact, or threats. It was telephone contact only and the applicant was apologising for his conduct. Although there was an invitation that she withdraw the charges against him, that was coupled with comments that he would hand himself to the police and he did so the following day.

26 Seventh, he has a serious and unique medical condition. I do not propose in these reasons to discuss that medical condition, which is known to the respondent. While it does not require urgent treatment, it cannot or should not be treated in a custodial environment. Untreated his condition may deteriorate and his safety in prison may be at greater risk if his condition became known.

27 Eighth, the applicant has the strong support of his family and community and his mother is present in court supporting him. Ninth, although he is likely to have lost his job whilst in custody he has a good employment record and may find work.

28 Tenth, his personal circumstances are relevant. The applicant was born in the Sudan. He is currently 25 years old. He arrived in Australia as a refugee in 2003. He is the oldest of three siblings with two younger sisters. He said that he was not directly affected by the civil war in Sudan and that his family left to Egypt when he was relatively young, where they remained for about two years before migrating to Australia. He resides in the family home. He attended Hampton Park Secondary College, describing himself as a generally good student with no disciplinary or social development issues. Since leaving school he has worked as a mechanic, had commenced an apprenticeship as a glazier. He is a committed Christian and abstains from alcohol. He has not experimented with or abused illicit substances or prescribed or over the counter medication at any time in his life.

29 Mr David Ball is a psychologist who specialises in the forensic assessment and treatment of violent and sexual offenders. He has considerable experience in that regard and he consulted the applicant at the Metropolitan Remand Centre on 8 October 2013 for approximately 90 minutes. On his mental status examination he found the applicant to have an unremarkable mental status reporting no depression or anxiety with a positive and stable mood. 'He appeared somewhat confused but philosophical regarding his medical condition'. The psychologist found no evidence of any frank mental illness or cognitive impairment estimated. The applicant's IQ fell within the normal range. He was impressed by the applicant as a generally pro-social and highly functioning man who, 'exercises generally good judgment with a history of planning and executing positive and self-sustaining behaviour. He possesses minimal insight into his general psychological functioning, presenting as well engaged and high functioning with the mainstream community and within his church community.'

30 The respondent contends that I should find that Mr Ball is not in a position to make a proper assessment and is being optimistic. His counsel contended that when you look at the surrounding circumstances, what the applicant did and the environment in which it occurred, the way he did what he did, what he then did afterwards on the day and following, Mr Ball's assessment was not a realistic assessment. Counsel submitted that I should draw the inference of an ongoing unacceptable risk in the manner that I have already set out.

31 I am persuaded that the opinions expressed by Mr Ball were properly open to him on his assessment and represent a proper assessment of the present risk that the applicant presents. Mr Ball has noted on several occasions that the applicant now considers the relationship with the victim to be over, stating that he wanted no contact with her and that he wanted to get out and start a new life. In assessing his current situation Mr Ball commented that the relationship with the victim was amplified by the applicant as being "completely over". He said that he would not answer her calls and wanted nothing to do with her. They had no children together, nor any shared finances, and that he wanted to get out and start a new life. He did not want to know what her new phone number was.

32 Mr Ball's conclusion that he considered the applicant to present a low risk to the community and to the victim was based upon the personal and medical history that he obtained and the clinical interview that he conducted. It was based upon Mr Ball's conclusion that the applicant did not satisfy any DSM-5 diagnostic criteria for frank mental illness, personality disorder, mood disorder or substance abuse disorder. The applicant does not exhibit any signs or symptoms of any psychological or psychiatric disorder that might underpin his alleged offending behaviour, nor was there evidence of pervasive deficits in his personality, recklessness, impulsivity or antisocial factors in his psychological functioning. Further, he was well supported by his family of origin and in his church community.

33 I accept that some inferences may be drawn as the respondent contends from the circumstances of the offending. Nevertheless I am of the view that significant regard has to be had to the more recent circumstances. Of particular significance is the applicant's detention in custody primarily as a result of breaching the no-contact condition.

34 Two comments can relevantly be made about the apparent breach of the non-contact directive. I am satisfied that the conditions in the notice and the intervention order were understood by the applicant initially, although he apparently has some cultural and language deficits. So much is clear from the victim's statement that he said to her that he understood that he was not to get in contact with her. But the contact has been limited to telephone and the contents of his communications appear to have been expressions of his regret or of apology. In fact, there has not been any threat made against the victim since the offending by these communications or otherwise. Although the applicant did ask the victim to withdraw the charges, he also said that he would hand himself in, and he did.

35 In all of these circumstances, I am persuaded by Mr Ball's assessment that the applicant has now accepted that the relationship is at an end and that he will move on and start a new life. I am also satisfied that he has family and church community support. He will need that support because of his medical condition. His medical condition is relevant in two ways. First, in my view there is no justification in denying the application access to highly specialised medical treatment, unless it be on the basis that it is considered to be an unacceptable risk. I do not accept counsel's contention that he has failed to prove that he cannot get that treatment in gaol. It appears to me that given the unique nature of his condition that requires both surgical treatment and ongoing drug therapies, it is a reasonable inference that that treatment would not be available in a custodial setting.

36 The most recent assessment of the risk that the applicant presents towards the victim is that of the psychologist. I am persuaded that the applicant has shown cause as to why his detention in custody is not justified. I should add that it has not been contended that the applicant is a flight risk, or that he poses any risk to the safety of welfare of members of the public generally. Accordingly, for the reasons that I have expressed, I am persuaded that if he is released on bail he is not now an unacceptable risk of breaching the conditions of either the intervention order or of bail, although conditional bail remains appropriate and conditions will be imposed.

37 I propose to order that the applicant be admitted to bail on his own undertaking for his appearance as required by law at the Melbourne Magistrates' Court on 28 November 2013 for a committal mention and upon the following special conditions:

(a) that the applicant not depart without the leave of the court and, as often as leave is given, return at the time appointed by the court on granting leave and again surrender himself.

(b) The applicant abide by the conditions of the intervention order dated 29 August 2013 in which the victim is the affected family member. In particular, and without limitation, the applicant is not to approach, telephone or otherwise contact (including by email or text message) the victim, he is not to be anywhere within five metres of the victim, he is not to be at or within 200 metres of the victim's address as stated in the intervention order.

(c) The applicant is to reside with his mother at 104 Langbourne Drive, Narre Warren South, Victoria, and not to change address without giving seven days notice to the informant or his nominee on receiving the informant's permission.

(d) The applicant is to report each Monday, Wednesday and Friday to the officer in charge of the police station at Narre Warren or his nominee between the hours of 6 am and 9 pm.

(e) The applicant is not to contact or communicate directly or indirectly with any witness for the prosecution, except the informant or his nominee.

(f) The applicant is to surrender any passports which he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport. Any such passport is not to be returned to the applicant except upon order of a judge of this court or of the County Court.

(g) The applicant is not to attend any point of international departure during the period of bail.

[1] [2005] VSC 487.

[2] [2001] VSC 237.