Re AC [2022] VSC 370 (23 May 2022)

1 By application filed 28 April 2022, AC ('the applicant') seeks a grant of bail in this Court in relation to the following five charges brought by Detective Sergeant Mathew Olston on 24 November 2021 ('the Olston charges'):

(a) reckless conduct endangering life (two charges);[1]

(b) dangerous driving whilst being pursued by police;[2] and

(c) contravening a family violence intervention order[3] ('FVIO') (two charges).[4]

2 The applicant has been in custody since his arrest on 24 November 2021. He was refused bail in the Horsham Magistrates' Court on 20 April 2022 on the grounds that he failed to show a compelling reason justifying the grant of bail, and was found to be an unacceptable risk of committing an offence on bail or endangering the safety or welfare of any person.[5]

3 The applicant has indicated his intention to plead guilty to the offences charged, and the matter is next listed in Horsham Magistrates' Court on 3 August 2022 for a contested summary jurisdiction application. The applicant seeks to have the charges heard before the Magistrates' Court rather than having the plea and sentence heard in the County Court.

4 At the time of the alleged offending the applicant had no fixed address and was reportedly abusing drugs and staying with associate drug-users.

5 On 7 April 2021 a two-year final no-contact family violence intervention order ('FVIO') was made in Horsham Magistrates' Court listing the applicant as the respondent and his mother as the affected family member ('AFM'). This order was served on the applicant on 6 August 2021.[6]

6 On 24 January 2022 a final full no-contact FVIO listing the applicant as the respondent and the applicant's former partner, AK, as the AFM was made in the Horsham Magistrates' Court and expires on 24 January 2023.

7 At 7:50pm on 5 November 2021 police observed a black Audi motor vehicle reversing out of the driveway of the home where the applicant's mother was living. They followed the motor vehicle with the intention of intercepting it and speaking to the driver in relation to a potential breach of the FVIO. Police believed the driver to be the applicant. The Audi drove away at 80km per hour in a 60km per hour zone and then accelerated around a bend. Police activated their lights to signal at the driver to stop, however quickly abandoned the pursuit after measuring the speed of the car at 212km per hour in a 100km per hour zone.

8 A few minutes later the Audi rounded a corner on the wrong side of the road causing an oncoming motorist to brake and swerve off the road to avoid a collision.[7] The driver called 000 and stated that he had been run off the road by a black Audi travelling at approximately 160km per hour.[8]

9 At about 6:00pm on 17 November 2021, the applicant went to the home of his former partner, AK, argued with her and deflated her car tyre. A friend of AK, PS, saw this and engaged in an altercation with the applicant before escorting him from the property.

10 Later that night, PS and AK's brother, MK, both went to the house where the applicant was staying to confront him about his most recent treatment of AK. PS insisted that he and MK confront the applicant about it immediately.

11 Sometime before 5:00am, PS and MK arrived on a rural property in Gerang Gerung using AK's car, a black Holden Colorado utility. The applicant emerged from the house and stood on the veranda with a golf club saying 'who's that, who's there.'[9] MK identified himself and the applicant responded 'what the fuck are you doing here, promise you won't hit me?'.

12 MK started talking to the applicant about his behaviour and told him that he was a bad influence on AK, asking him what he was going to do to change. The applicant yelled out to an associate, PK, who came out from the house and joined the conversation.

13 During the conversation, the applicant walked away and got into a white Toyota Prado. The applicant then drove the Prado directly at MK, at which MK jumped out of the way to avoid being hit. The applicant then did a U-turn and drove directly at PS. MK threw various objects at the Prado in an attempt to stop the applicant, but without success.

14 MK then attempted to seek refuge in the Colorado vehicle and ran towards it. As he reached the rear passenger door, he was struck by the Prado, becoming airborne, and spinning several times before landing on the ground. The applicant then drove away in the Prado car.

15 MK and PS got into the Colorado and followed the applicant, who drove in circles and turned his lights on and off. PS eventually stopped the Colorado near the veranda of the house, before the applicant rammed it from the rear at approximately 40km per hour, as estimated by MK.

16 Both cars resumed driving around and collided, before MK approached the Prado on foot as the applicant was reversing, and attempted to open the locked driver's door and break the window. The applicant drove at MK several more times before driving away. MK and PS then left the property.

17 MK suffered pain, swelling and bruising to his ankle, legs, arms and face and was treated by a nurse at home at around 9:00am.[10]

18 On 24 November 2021, following MK alerting police to the Gerang Gerung incident, police executed a search warrant at the home of the applicant's mother and arrested the applicant. He was there in breach of a final FVIO. Police seized the Prado, its car keys, and a golf club.[11] The applicant was conveyed to Horsham Police Station where he participated in a no-comment record of interview.[12] He was subsequently charged and remanded into custody.

19 Police later attended the Gerang Gerung address and seized further evidence including broken plastic from the cars.[13] PK, who witnessed part of the incident, also gave a statement.[14] Analysis of the seized cars indicated the damage caused to the Colorado was likely caused by the Prado.[15]

20 At the time of the alleged offending, the applicant was on summons for two matters, which are detailed as follows:[16]

21 On 22 August 2021 police attempted to intercept a white Ford Falcon, however, the car did not stop and was detected on a police-radar travelling at 168km per hour. Police enquiries regarding the ownership of the car revealed the applicant had purchased it on 10 August 2021, but had not submitted the transfer form to VicRoads.

22 On 8 October 2021, police served the applicant with a notice to identify the driver of the vehicle within seven days, but he did not comply. On 23 October 2021, the applicant was spoken to by police and advised them he would complete the form.

23 On 3 January 2022, the applicant was charged on summons with being the owner of a vehicle and failing to give information about a driver.[17]

24 This matter is next listed for mention at Horsham Magistrates' Court on 6 June 2022.

25 On 27 August 2021 Acting Sergeant Lachlan Hurst was driving a marked police vehicle and observed a white Ford Falcon reversing out of a driveway in Horsham. Informant Kettle, in another police car, confirmed it was the same car which had failed to stop on 22 August 2021. Informant Hurst activated emergency lights and sirens to signal the car to stop, but it turned onto a residential street with a 50km per hour limit, and drove off at a speed in excess of 100km per hour, causing police to end the pursuit.

26 During patrol of the area, Informant Hurst again saw the car travelling toward him and identified the applicant, whom he knew from previous dealings, as the driver. Informant Hurst again activated the lights and sirens however the car accelerated heavily and lost traction before speeding off.

27 On 8 October 2021, the applicant was intercepted while driving a different car and made a no-comment field interview. On 21 October 2021, he was charged on summons with driving a motor vehicle when directed to stop and improper use of motor vehicle.[18]

28 The matter is next listed for plea at Horsham Magistrates' Court on 3 August 2022.

29 This application is governed by the Bail Act 1977 ('the Act'), which is to be applied and interpreted having regard to the guiding principles in s 1B(1).[19] This includes - amongst other things - maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.

30 As the applicant is charged with dangerous driving while pursued by police, which is a Schedule 2 offence within the meaning of the Bail Act 1977 ('the Act'),[20] bail must be refused unless he satisfies the Court that a compelling reason exists that justifies the grant of bail.[21] In considering whether a compelling reason exists, the Court must take into account the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[22]

31 The phrase 'compelling reason' is not defined in the Act. In Rodgers v The Queen, Beach, Kaye and Ashley JJA summarised the relevant principles, as follows:[23]

(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.

(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.

(3) A compelling reason is one which is forceful and therefore convincing - a reason which is difficult to resist.[24]

32 Even if satisfied that a compelling reason justifying a grant of bail exists, the Court must still refuse bail if satisfied by the respondent that the applicant poses a risk of any of the matters outlined in s 4E(1)(a), and that such a risk is unacceptable. The Court must again have regard to the relevant surrounding circumstances in doing so, and consider whether there are any conditions of bail to moderate risk so that it is not unacceptable.

33 Section 5AAAA(1) of the Act requires the Court to inquire with the prosecutor as to whether there are any FVIOs, family violence safety notices, or recognised domestic violence orders in force against the applicant. Further, because the applicant is charged with family violence offences, s 5AAAA(2) of the Act requires the Court to consider whether - if he were released on bail - there would be a risk that the applicant would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.

34 As mentioned above, at the time of the alleged offending there was a full no-contact FVIO in place listing the applicant as the respondent and his mother as the AFM. On 23 February 2022 the Horsham Magistrates' Court made a new final FVIO which prohibits the applicant from committing family violence against his mother, damaging or threatening to damage her property, or attending her home if he is affected by or has used drugs or alcohol in the preceding 24 hours. This order expires on 6 April 2023.[25]

35 On 24 January 2022 a final full no-contact FVIO listing the applicant as the respondent and AK as the AFM, was made in the Horsham Magistrates' Court and expires on 24 January 2023.[26]

36 There have previously been four FVIOs in place listing the applicant as the respondent and his ex-partner as the AFM, all of which have expired.

37 As such, there have been, and currently are, multiple instances of FVIO's in place against the applicant, involving multiple affected persons.

Determination in relation to an aboriginal person

38 As the applicant identifies as an Aboriginal person, in determining the application the Court must take into consideration any issues arising due to his aboriginality by reference to s 3A of the Act.

39 The applicant is a 26 year old Aboriginal man who identifies with the Wotjobaluk mob. He left school in Year 9 and attained a Certificate III in Civil Construction and a Diploma in Community Service in 2019.[27]

40 He has had three young children with former partner, AK, however one child died as a result of Sudden Infant Death Syndrome in 2014 which led to the applicant commencing using methamphetamine.[28] At the time of the present offending, the applicant was struggling with methamphetamine addiction and it is understood that he was not residing at any fixed address.

41 The applicant has a significant and relevant criminal history comprising primarily of driving, weapons, dishonesty and drug-related offences.[29] He first came before the court as a youth in 2012 and received his first conviction in 2014. He has one conviction involving violence which relates to an unlawful assault in 2016. He also has a history of bail offences and breaching court-imposed orders, including failing to answer bail and committing an indictable offence on bail, breaching a community correction order and persistently contravening a FVIO.[30]

42 The applicant relies on the following matters, in combination, in support of his application for bail.

43 Nature and seriousness of the allegations: The applicant concedes the offending is objectively serious, noting that he faces two charges of reckless conduct endangering life which each carry a maximum of ten years' imprisonment.

44 Criminal history and compliance with earlier grants of bail: The applicant concedes he has a criminal history with relevant prior convictions, including for failing to answer bail and committing an indictable offence whilst on bail.

45 Special vulnerability: As above, the applicant is an Aboriginal man. It is submitted that he is vulnerable in custody. It is submitted there are alternatives to remand custody, specifically that he has rehabilitation available to him, and should also be given the opportunity to explore his culture. Further, whilst on remand he is unable to connect with family and place, and is grieving the loss of his late father, who passed away in 2020, and his child.[31]

46 Availability of treatment or bail support services: The applicant has been supported by Aboriginal Liaison Officer, Christopher Maynard, whilst in custody. Mr Maynard assisted the applicant in applying for residential rehabilitation. The applicant has since been assessed as suitable for admission to a four-month residential rehabilitation program at Odyssey House. The applicant has not previously engaged in residential rehabilitation and has expressed interest in engaging in the program.[32] Alcohol and Other Drug Therapist, Brionhy Sullivan, confirmed by letter dated 5 May 2022 that Odyssey House is able to admit the applicant on 17 May 2022.[33] The program involves regular urine screening, education and training in relation to conflict-resolution and relapse prevention strategies, and participants are allocated self and community-focused responsibilities. Ms Sullivan notes that the program is voluntary, staff members do not directly supervise participants and off-site monitoring is limited. Odyssey House requires direct transfer to their facility from custody if bail is granted, and require the applicant to arrive prior to 12:00pm to facilitate intake. Odyssey House has requested that, if bail is granted, curfew be limited to between 10:00pm and 5:00am to enable the applicant's full engagement in the program, and has further requested that no reporting condition be imposed for the duration of the program due to transportation limitations.

47 Delay and likely sentence: The applicant concedes that he faces a term of imprisonment, but notes that he had already been in custody for more than five months at the time the bail application was filed in this Court. The applicant points out that he is applying for the charges to remain listed for plea and sentence in the Magistrate's Court, and notes that if his application is unsuccessful there will be a further delay before the matter is finalised in the County Court.

48 Unacceptable risk: The applicant submits that his engagement in residential rehabilitation would ameliorate risk as he would remain at a static address for the rehabilitation period and staff would be able to advise police if he left or did not comply with his curfew. The applicant proposes bail conditions to reside at Odyssey House and comply with the program, proceed directly from custody for admission to the program, submit to a curfew, not leave Victoria or attend international departure points, not drive a car and not use drugs or alcohol.

49 Counsel for the applicant submitted that compelling reasons are made out on the basis of the applicant's indigenous heritage and that, if bail is granted, he would have the opportunity to take part in a residential rehabilitation program at Odyssey House in Bairnsdale.

50 Counsel provided a brief outline of the applicant's personal history, being that the applicant was a young indigenous man who had grown up with his father in Ballarat before moving to Horsham as a young adult to be closer to his mother. Not long after moving to Horsham he started a relationship and became the father of three children at a very young age. The applicant's substance abuse issues were exacerbated by the grief of losing a child to Sudden Infant Death Syndrome in 2014 and the death of his father two years ago. Grief, coupled with his lack of maturity and difficulty navigating problematic relationships contributed to a cycle of drug use and criminal offending without any comprehensive engagement with treatment. At the time of the offending the applicant was effectively homeless, confused and angry about being unable to see his children.

51 While conceding the applicant had not made the most of previous opportunities to address his underlying issues with drugs it was submitted that the applicant's acceptance into the Odyssey House program represents the first time he would have the benefit of a residential rehabilitation program. It was submitted that the applicant's past lack of engagement with drug and behaviour change programs was due to his living in the community with ongoing substance abuse issues at the relevant time. Counsel characterised the applicant as someone who lacked the wherewithal to abstain from drugs if left to his own devices in the community and that past interventions, while well intentioned, were the 'wrong instrument'.

52 It was submitted that the applicant's previous non-compliance with previous court orders should be given limited weight when assessing the current application. This was because, having spent 169 days in custody on the date of the hearing, the applicant would be drug free from the commencement of the Odyssey program and would effectively be 'locked down' in the residential rehabilitation. Being a significant distance from Horsham also meant he would have a far better opportunity to properly engage with his interrelated substance and the grief issues.

53 Conversely, it was submitted that further time in remand without proper treatment may decrease the applicant's prospects of rehabilitation, thereby increasing the risk of reoffending to the later detriment of the community. In support of this reasoning Counsel referred to Re Gaylor in which the Court of Appeal held that if granting an applicant bail is likely to be in the community's interest, then this is a principal factor in supporting the existence of a compelling reason.

54 Noting that the applicant had completed a diploma in community service and his mother was a field officer in the Koori community, it was further submitted that successful engagement with his drug issues would allow the applicant to potentially reconnect with his indigenous heritage and pursue a similar career to his mother.

55 The applicant acknowledged this was not an application in which the presumption of innocence applies, confirming the Olston matters had resolved to a plea and were listed on 3 August 2022 for an application for summary jurisdiction. Further, the remaining outstanding matters were also likely to resolve to a plea.

56 Notwithstanding his concession that this was an unusual procedural juncture at which to make a bail application, Counsel submitted that allowing the applicant the opportunity to participate in residential rehabilitation before sentencing would provide motivation for the applicant to make the most of his opportunity, as well as to engage in treatment because of the potential mitigation in sentence that might occur if he successfully completed the program.

57 As to what was likely to happen if the applicant successfully completed the four month residential rehabilitation program at Odyssey House in circumstances where he was homeless prior to his arrest, Counsel confirmed that the application seeks only to fix bail to allow the applicant the opportunity to engage in residential rehabilitation. It was submitted that anything beyond the conclusion of the program would necessarily be the subject of an application to vary bail and therefore should not be at the forefront of the court's mind when considering the current application.

58 Regarding unacceptable risk, it was submitted that the applicant's motor car licence was disqualified and he would have great difficulty getting access to a car given that the relevant residential rehabilitation centre was located in Bairnsdale, over 500km from Horsham.

59 The respondent opposes the application on the basis the applicant has not demonstrated a compelling reason justifying the grant of bail, and that he poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail, and failing to answer bail.

60 Nature and seriousness of the allegations: The respondent submits that the offending is inherently serious. It was noted that the summary jurisdiction application to be made by the applicant will be opposed on the basis that the Magistrates' Court sentencing range is not adequate to deal with the seriousness of the offending.

61 Criminal history and compliance with previous grants of bail: The respondent submits that the applicant has a significant criminal history, inclusive of numerous breaches of bail.

62 Special vulnerability: The respondent recognises that the applicant identifies as an Aboriginal person.

63 Delay and likely sentence: The respondent notes that the applicant has spent 169 days on remand as at the date of the making of this bail application. It is submitted that a custodial sentence exceeding that and a further remand period is likely due to the seriousness of the offending.

64 Views of the victim: MK has doubts that the applicant will comply with bail, and is concerned for MK and the applicant's behaviour escalating.

65 Unacceptable risk: In support of its position on unacceptable risk, the respondent relies on the seriousness of the current charges and the applicant's criminal history. In particular, the respondent notes that the applicant has extensive convictions for breaching court orders and committing bail and serious driving-related offences.

66 Counsel for the respondent submitted that it was unusual to seek bail in circumstances here the matter had resolved to a plea and it was conceded the applicant faced a significant term of imprisonment.

67 It was submitted that reckless conduct endangering life was a serious offence with a maximum penalty of ten years' imprisonment. The Olston matters involve two charges of reckless conduct endangering life relating to two different incidents occurring on different days and involving different victims. In one case the applicant failed to stop on a police direction to do so, drove a vehicle at speeds of over 200km per hour on the wrong side of the road, and forced another driver to swerve off the road. In respect of the second charge, the applicant deliberately drove a car at two people over a dispute which he initiated after having deflated the tyres on his ex-partner's motor vehicle.

68 It was noted that the application for summary jurisdiction listed on 3 August 2022 is opposed and conceded that if it is unsuccessful there is likely to be a further delay in the vicinity of 4-6 months before the applicant could be sentenced in the County Court.

69 The respondent submitted the applicant had a significant criminal history and the Court must take into account the fact that previous attempts to facilitate rehabilitation for the applicant had been unsuccessful. Counsel submitted the difference between residential rehabilitation and a community corrections order was minimal insofar as both were a form of court ordered rehabilitation. Concerns were expressed about security arrangements at Odyssey House, noting that it was a voluntary program and whilst residents were regularly accounted for, they were not under direct supervision and staff are not routinely involved or present at offsite activities and appointments.

70 It was also submitted there was an unacceptable risk that the applicant would find the program too difficult and would once again engage in driving that put people's lives at risk. It was noted that the applicant has several prior convictions for theft of a motor vehicle and a history of driving whilst unlicensed or disqualified and this negated any reassurance that could otherwise come from placing him in a residential rehabilitation facility over 500km away from Horsham.

71 Counsel submitted the applicant has not demonstrated a previous willingness to engage in rehabilitation having taken no previous steps to manage his substance abuse issues prior to this application. Accordingly, the respondent characterised the application as one which was based on hope rather than evidence. Given the applicant's criminal record, the serious nature of the offending and his previous non-compliance with bail and community corrections order, it was submitted that the risk was unacceptable and bail ought therefore be refused.

72 As observed above, a compelling reason is one which is forceful and therefore convincing - a reason which is difficult to resist.[34] It is clear that a state of satisfaction can be reached by a combination of factors, none of which individually might meet the test, but in combination may do so.

73 In applications such as this, the Court is often required to undertake an evaluation of the strengths or weaknesses of the prosecution case. This is due to this issue being highly relevant to the outcome of the application for bail. In many bail applications the prosecution case is said to be contested, and there are 'triable issues' in play. This is not the situation in the applicant's case as he has indicated an intention to plead guilty to the charges.

74 The respondent submits that it is unusual to seek bail in circumstances where the matter has resolved to a plea and here it is conceded the applicant faces a significant term of imprisonment. I cannot agree with this submission as a statement of general approach. Experience shows that there are many instances where it is almost inevitable that an offender will eventually face a sentence of imprisonment but has been admitted to bail pending a sentencing hearing. Charges involving culpable driving or death by dangerous driving are clear examples of this. The decision whether bail will or will not be granted to an applicant simply depends on an evaluation of all the relevant circumstances that apply to each individual case. In my opinion, the present application for bail should not be refused solely on the basis there will be a plea of guilty, nor should it necessarily be a major factor in the determination of an application. Rather, the question of bail must be determined according to a proper application of the principles attending such applications, and the relevant tests as set out in the Act.

75 As to the nature of the allegations against the applicant, unquestionably the applicant has been charged with having committed a series of serious offences. The degree of seriousness of the allegations is of significance to an assessment of whether a compelling reason has been established by the applicant, and also, to an assessment of the aspect of whether an unacceptable risk has been established by the respondent.

76 In this case the applicant is alleged to have driven a motor vehicle at a very high speeds, in a manner dangerous in all the circumstances, and placing another driver in actual harm's way by forcing the person off the road. There are other occasions where he is alleged to have driven at high speeds to evade police apprehension, and over which he has been charged on summons. On another occasion altogether the applicant has deliberately driven a motor vehicle at people on foot, in what appears to have been a series of attempts to hit them, and being successful in doing so in one instance. The victim was injured, albeit not seriously. On that occasion he also drove his vehicle and rammed another vehicle which contained occupants.

77 In carrying out the actions described immediately above, the applicant is alleged to have deliberately, and dangerously, used his motor vehicle as a weapon. Furthermore, other instances of high-speed driving have been alleged, attended by failures to respond to police directions to stop, and attempts at evading apprehension. Some of these other instances can be included in an assessment of surrounding circumstances, and as such are required to be considered in respect of both tests to be applied.

78 Delay is an issue for consideration in the applicant's case. Whether there will be a significant delay will likely be determined to some degree by the success or otherwise of the summary jurisdiction application, a matter about which it is not the role of this Court to make any judgment, or express any opinion. Irrespective of which jurisdiction he is sentenced in, a sentence of imprisonment is clearly open to be considered by a sentencing court. These two hearings may eventually be determined by different courts and different judicial officers, and it is not for this court to adjudicate or express any opinions about possible outcomes. If the applicant's charges are to be sentenced in the County Court, there will likely be a longer delay than if they are heard in the Magistrates' Court, with that delay possibly extending into next year.

79 As explained above, the applicant has been accepted into a 4-month treatment and rehabilitation program at Odyssey House. This issue formed the centrepiece of this application. The proposal is that the applicant attends a therapeutic residential rehabilitation program at an Odyssey House facility at Lucknow, situated near Bairnsdale.

80 In Re Jiang, Lasry J referred to Robinson v The Queen in which the Court of Appeal observed:

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining in a supervised treatment facility and participating in drug rehabilitation. ...

I pause to note that a grant of bail being conditional on an applicant remaining in a residential rehabilitation centre is no longer most unusual. Their Honour's continued

... Not only does such a condition severely restrict the person's freedom of movement and association but - on the positive side - it means that the pre-trial period can be used constructively to tackle the person's drug addiction. In this case, as in so many others like it, [the applicant's] drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to [the applicant] if he remained in custody.

Having indicated that he would consent to these conditions, [the applicant] had demonstrated in two different - but related - ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate the risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.

81 More recent decisions subsequent to Robinson, including that of Lasry J in Jiang, reveal that bail conditions requiring an applicant to remain in a residential treatment facility can no longer be regarded as unusual. See for instance, AJ,[35] DS,[36] Taylor-Griffin,[37] Hamilton-Green,[38] and Hassan.[39]

82 On the other hand, similar instances where bail has been refused include De Camillis,[40] and NP.[41]

83 An examination of the cases cited above reveals that each one was attended by different considerations and circumstances from the others, as well having different considerations from the present case. In many cases it was clear that the drug addiction of the applicant was central to his or her offending behaviour.

84 The Odyssey House program would end after four months. Should the applicant's matters not be resolved by that time, it remains uncertain what would occur with respect to his grant of bail, if conditioned on his attendance at, and completion of, the program. Depending on how conditions of bail could be formulated, it may be necessary for him to apply to vary his bail, whereupon he would either return to custody to await his plea and sentence hearing, or for some other arrangement to be made to the satisfaction of the court. This observed, in my opinion the Court must consider the application as the circumstances at this point in time, rather than speculate about what might happen in the future.

85 I note that if the applicant is a resident in the program that his involvement is voluntary, that he may be allocated community focussed responsibilities but that staff are not routinely involved or present at offsite activities, and whilst residents are regularly accounted for, they are not under direct staff supervision. Further, Odyssey House requested that reporting conditions be suspended for the duration of the treatment as the facility is not in a position to transport residents to and from signing on at police facilities. I regard the degree of supervision able to be provided as towards the lower end of security. In the particular circumstances of the applicant, his background, and the types of charges that he faces, I am of the opinion that the level of security provided by the program is inadequate.

86 It is conceded by the respondent that the applicant identifies as an Aboriginal person. This is a circumstance to which the Court must take into account in making a determination under the Act. In making an assessment of whether the applicant has satisfied the compelling reason test, and also unacceptable risk, I have taken this into account. I accept that the applicant is to be regarded as being vulnerable in the prison setting on the basis of his aboriginality. In this context I have further taken into account the time he has already spent on remand, and the delay he may experience before his charges are finally resolved, as well as the deleterious impact the service of his time in custody has also been affected, and possibly aggravated, by the COVID-19 pandemic restrictions.

87 I have also taken into account the support the applicant has been given by the Aboriginal Liaison Officer, Christopher Maynard, and the applicant has expressed interest in the opportunity to explore his culture, and reconnect with his indigenous heritage.

88 Taking into account all the matters put before the Court I am not satisfied that the applicant has met the compelling circumstances test. Given both the circumstances attaching to the applicant, and the evidence put forward in this application as discussed above, I am not satisfied that the applicant has shown that by a combination of circumstances, a compelling reason exists that justifies the grant of bail.

89 Having concluded that the applicant has not satisfied the compelling reason test, I make the following observations. If I am incorrect in this conclusion I would nevertheless have been satisfied that the applicant represents an unacceptable risk of committing further offences, and placing another person at risk, or the community in general. As is frequently the case, much of the evidence that satisfies the compelling reason test is also relevant to a determination of the unacceptable risk issue. I am also well aware of the need to consider the surrounding circumstances provisions, and the family violence provisions that bear on deciding this application.

90 The respondent submits that if he had satisfied the compelling reason test, the applicant nevertheless represents a risk of committing further offences and represents a danger to the public. The applicant submitted that bail conditions could ameliorate the risk. The applicant's prior history is of relevance in this regard, and informs the issue of risk. The applicant has a very poor criminal record of offending between 2012 and 2020, involving multiple instances of thefts of motor vehicles; driving offences, including driving in a manner dangerous; failures to answer bail, committing an indictable offence while on bail; and persistent contraventions of family violence orders. He has been sentenced to community based orders on a number of occasions, some with conditions to undergo treatment and rehabilitation, with one instance including a court order to undergo a road trauma course. It appears the applicant has learnt little from his interactions with the criminal justice system, and he has displayed a propensity to disobey court imposed orders, particularly failing to appear on bail. Furthermore, and as to risk, the submission that the applicant would be located in Lucknow, and thus at a far distance from the locality of his offending with less chance of gaining use of a car, in my opinion has limited weight given the applicant's record of car theft, and driving while disqualified.

91 In assessing risk, in my opinion the unpredictability of the applicant is a significant concern. His offending in the examples before the Court on this application displays a disposition to act impulsively and on the spur of the moment, and in an explosive manner, which has placed innocent members of the community at risk. As such, he has demonstrated a wider risk exists to the general public, beyond persons he knows. Further, he has displayed this reckless disregard to the wider community on multiple occasions. Furthermore, in this assessment I am also satisfied that there remains a risk the applicant will commit further family violence offences beyond which he has already been charged in relation to the matters now before the Court.

92 In all the circumstances I am satisfied the respondent would have met the unacceptable risk test in event. For the reasons discussed above, I am not satisfied that conditions could reduce the risk to an acceptable level.

93 For the reasons discussed the application for bail is dismissed.

[1] Charge 3 and 9 of the Olston Charges.

[3] Charge 8 and 12 of the Olston Charges.

[4] The applicant was originally charged with seven further offences, but on 20 April 2022 in Horsham Magistrates' Court these charges were struck-out and withdrawn. See Affidavit in response, exhibit CMD-3, 318-332 for copies of the orders made in Horsham Magistrates' Court on 20 April 2022.

[5] See Affidavit in response, exhibit CMD-3, 324-326 and 331-332, for copies of the bail refusal extracts.

[6] See Affidavit in response, exhibit CMD-2, 217-219 for copies of the order made on 7 April 2021 and the affidavit of service extract from Horsham Magistrates' Court.

[7] See Affidavit in response, exhibit CMD-2, 130-134 for copies of pictures taken of Mr Dunhall's car at the location where the alleged incident occurred.

[8] See Affidavit in response, exhibit CMD-2, 294-300 for a copy of the transcript from the 000 call.

[9] See Affidavit in response, exhibit CMD-2, 45.

[10] See Affidavit in response, exhibit CMD-2, 91-92 for the statement of nurse, Monique Middleton and 147-151 for photographs of MK's injuries.

[11] See Affidavit in response, exhibit CMD-2, 154-180 for photographs taken during the search.

[12] See Affidavit in response, exhibit CMD-2, 275-292 for a copy of the transcript of the applicant's record of interview.

[13] See Affidavit in response, exhibit CMD-2, 183-208 for photographs taken during the search of this address.

[14] See Affidavit in response, exhibit CMD-2, 84-85 for the statement of PK.

[15] See Affidavit in response, exhibit CMD-2, 226-266 for copies of the photos of the damage to the Prado and 269-271 for copies of the damage to both vehicles taken during the analysis.

[16] See Affidavit in support, exhibit SJW-2, 24-30 for a copy of the charges and police summaries for both matters.

[17] See Affidavit in support, exhibit SJW-2, 30 for a copy of the charge.

[18] See Affidavit in support, exhibit SJW-2, 26-27 for a copy of the charges.

[19] Bail Act 1977 (Vic) ('the Act'), s 1B(2).

[23] [2019] VSCA 214 (Beach, Kaye and Ashley JJA).

[25] See Affidavit in response, exhibit CMD-9, 352-353.

[26] See Affidavit in response, exhibit CMD-8, 349-350.

[29] See Affidavit in support, exhibit SJW-3 for a copy of the applicant's criminal history; and Affidavit in response, exhibit CMD-4, 334-339 for a copy of the applicant's VicRoads history.

[30] See Affidavit in response, exhibits CMD-5 and CMD-6 for copies of the police summary for the matter for which the applicant was sentenced to a CCO and a copy of a breach report dated 22 July 2019; and exhibit CMD-7 for a copy of the police summary in relation to the applicant's conviction on 20 October 2015 for dangerous driving.

[33] See Supplementary affidavit in support and Affidavit in support, exhibit SJW-4 - It is not clear which facility the applicant intends to be accommodated at as, in Ms Sullivan's initial letter dated 14 April 2022, she stated that a bed was available at the Lower Plenty site, however due to COVID-19 concerns, they intended to accommodate the applicant at the Lucknow facility (which is specified in the proposed bail conditions) with the intention to transfer him to Lower Plenty once the concerns has resolved.

[35] Re AJ [2021] VSC 291 per Jane Dixon J.

[36] Application for bail by DS [2021] VSC 332 per Jane Dixon J.

[37] Re Griffin [2020] VSC 626 per Lasry J.

[38] Re Hamilton-Green [2021] VSC 484 per Champion J.

[39] Re Hassan [2021] VSC 66 per Taylor J.

[40] Re De Camillis [2020] VSC 761 per Tinney J.

[41] Re NP [2021] VSC 857 per Niall J.