Re AJ [2021] VSC 291 (21 May 2021)

2 On 11 November 2020, shortly after 9:00am, a search warrant was executed by police[1] on the applicant's home address where he lived with his mother and brother ('the Westmeadows address'). At approximately 9:45am, in the presence of the applicant, police found some car keys on the floor next to his bed. The car keys were used to open a BMW I8 coupe (BCG-439) that was parked in the driveway immediately outside the front door of the address. On the front passenger seat of the car, police located a Louis Vuitton satchel. In that satchel, was a black zip up case, containing a silver .32 calibre Colt revolver ('the revolver'), loaded with six ammunition rounds (from that revolver). The satchel, the case, the revolver and the ammunition were all seized. Cannabis and diverse steroid related substances were also seized during the search of the applicant's garage. Police also searched another BMW vehicle parked in the driveway (white, BIQ-286), and located a mobile phone. Other evidentiary items seized by police at the premises included certain mobile phones and a hard drive relating to a CCTV camera.

3 The applicant was arrested and charged in relation to the firearm and other substances seized by police. At the time of his arrest he was prohibited from possessing firearms.[2] He had also been served with a firearms prohibition notice on 4 April 2019. He did not have a licence or permit to possess the ammunition within the revolver.

4 The applicant was remanded in custody on the following charges ('the Zahra charges'):

(a) Charge 1: Possess a firearm at Westmeadows on the 11 November 2020 to whom a firearm prohibition order applied, contrary to Section in the 112B of the Firearms Act, 1996 (Vic)('Firearms Act');

(b) Charge 2: Prohibited person possess firearm at Westmeadows on the 11 November 2020 contrary to Section 5(1) of the Firearms Act;

(c) Charge 3: Possess cartridge ammunition at Westmeadows on the 11 November 2020 whilst not the holder of a licence under the Firearms Act, or permit under Section 58A, contrary to Section 124(1) of the Firearms Act;

(d) Charge 4: Possess a drug of dependence, namely cannabis at Westmeadows on the 11 November 2020 contrary to Section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic);

(e) Charge 6:[3] Possess a drug of dependence, namely Somatropin[4] on the 11 November 2020, contrary to Section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and

(f) Charge 7:[5] Unauthorised possession of a poison, namely Tamoxifen and Profasi.

5 Charge 1 and 2 each carry a maximum sentence of 10 years imprisonment.

6 On 4 February 2021, the applicant unsuccessfully applied for bail before the Melbourne Magistrates' Court. The Zahra charges are listed for Committal on 2 August 2021. The only witnesses who will be cross-examined are the DNA expert and the informant. Whilst a preliminary DNA report has been obtained, the informant is still awaiting a formal DNA expert statement and is still compiling s 32 material. It is anticipated the committal will be ready to proceed on the allocated date.

7 CCTV footage seized from the applicant's Westmeadows address showed the following events occurring on 10 and 11 November 2020:

(a) At 9:45pm on 10 November 2020 the BMW (BCG-439) can be seen to arrive at the Westmeadows address;

(b) At approximately 9:56pm the applicant is visible entering the front door of the property;

(c) The BMW remained at the address until police arrived at approximately 8:00am on 11 November 2020.

8 Fingerprint examination of the BMW, (BCG-439) where the revolver was located, revealed the likelihood of a connection to the applicant on the following surfaces:

(a) External driver's door - left thumb of the applicant; and

(b) External driver's door window - right thumb of the applicant.

9 DNA swabs were taken from the interior of the same vehicle, and from the revolver and ammunition.

10 The swab taken from the trigger/ trigger guard of the revolver revealed a mixed DNA profile that did not exclude the accused.[6] The swab taken from the grip showed a mixed DNA profile which was regarded as too complex for further interpretation.

11 Due to a miscommunication, the swab from the ammunition has not been tested yet and results are still pending on that.

12 The satchel within which the revolver was located was not swabbed. Further, no swabs were taken from the passenger side of the vehicle, nor was it examined for fingerprints.

Current CCO and charges laid during the currency of the CCO

13 As a result of serious offending in 2017, the applicant was sentenced on 24 January 2019 to two years imprisonment (with 687 days reckoned as served)[7] and a 24-month Community Corrections Order ('the CCO').

14 The 2017 charges included prohibited person possess firearm, make threat to kill, recklessly cause injury, commit indictable offence on bail, and possess cartridge ammunition without a licence or permit. The charges relate to incidents in January and February 2017, including a serious event involving a former girlfriend, LK and her son. On that occasion, the applicant is alleged to have been armed with a handgun and to have threatened LK and her infant son DK whilst wielding the handgun in the garage of the Westmeadows address. The applicant's father intervened and disarmed the applicant. LK (together with her young son DK) obtained a Family Violence Intervention Order (FVIO) against the applicant.

15 The applicant commenced the CCO upon his release from prison on 8 March 2019. He remained at liberty on the CCO, apart from a brief period of remand for charges for possession of drugs (four charges)[8] and breach alcohol interlock condition which placed him in custody on 28 March 2020 and led to a 14 day sentence (released on 8 April 2020).

16 He was still undertaking the two year CCO when he was arrested on the Zahra charges. A CCO contravention report dated 25 August 2020 is annexed to the applicant's affidavit in support of bail.[9] The substance of that report will be discussed later in these reasons.

17 Over the period of his two year CCO (from March 2019 to the date of his arrest on the Zahra charges on 11 November 2020) the applicant attracted charges on summons for car theft, driving offences, and a further family violence incident involving a female he was seeing in early 2020. I will set this out briefly:

(a) He was on summons for a single charge of theft of a motor vehicle on 12 August 2019 (Constable Patrick West). This charge has been listed for a plea of guilty on 13 July 2021.

(b) He was also on summons for charges laid by Constable Curtis Shine relating to assaults on his then girlfriend CF on 24 January 2020; intentionally cause injury, recklessly cause injury, unlawful assault (two charges) and assault by kicking. The allegations are that the applicant and CF were in an intimate relationship for six months. He attended her home that day unexpectedly to speak with her. She invited him in and they spoke for half an hour. An argument arose and during the argument, the applicant grabbed her phone and punched her in the face when she tried to take it back. She dropped to the ground and was kicked by the applicant before he picked up a knife from the bench and motioned towards her in a threatening way. The applicant then noticed CF was bleeding, and got an ice pack for her, he then wiped up her blood and left. The complainant reported the incident to police, but declined their offer to take her to hospital. The matter is listed for a contest mention on 17 August 2021 at the Broadmeadows Magistrates' Court. Counsel for the respondent was unable to provide further information about the current status of this matter on inquiry during the bail hearing, except that it was still proceeding.[10]

(c) The applicant was also on summons for driving charges from two different occasions. The first matter concerned 16 August 2020 (Constable David Hanson); driving without an alcohol interlock device fitted, failure to display 'P' plates, and failure to have his probationary licence in his possession (set down for a plea of guilty on 13 July 2021 at Broadmeadows Magistrates' Court). The second mater concerned 20 August 2020 (Leading Senior Constable David Moloney); driving without an alcohol interlock device fitted, drive vehicle with manual transmission in breach of licence condition, failure to display 'P 'plates, and failure to have his probationary licence in his possession (set down for mention on 17 August 2021 in the Broadmeadows Magistrates' Court).

18 The applicant was born in Iraq, he is one of five children. Being from an Assyrian Christian background, his family were a persecuted minority. During the applicant's early childhood, the family were in a refugee camp in Iraq for about 18 months, before migrating to Australia. The applicant's father was violent towards him when he was growing up and when he disclosed sexual abuse by his paternal uncle at the age of 13, he was assaulted by his father. The applicant went on to develop issues with anger in his adolescence.

19 The applicant commenced smoking cannabis at age 16 and has been a daily user of methamphetamine for the past 13 years. He has spent much of the last eight years in prison. He has told Ms Maria Hutchinson, CEO at The Cottage in Shepparton (a residential drug rehabilitation facility), who assessed him for a placement there, that typically he was using the drug replacement, buprenorphine, when in custody and would return to using drugs within about a month after his release. When not in prison, he ordinarily resides with his mother at her Westmeadows address.

20 The applicant completed year 10 at school and did six months of a panel beating apprenticeship before working in construction. The applicant's work history is limited due to frequent periods in custody throughout his adult life, but he recently worked part time at his brother's (Emmanuel) plumbing business before being arrested on the Zahra charges.

21 The applicant's brother, Emmanuel, proposes to support the applicant's drug rehabilitation and take him on full time learning the plumbing trade when the applicant is released into the community.

22 The applicant's criminal history includes a concerning number of drug offences, driving offences, assaults and firearm offences. Firearms offending contributed to two previous sentences of imprisonment. As already mentioned, a firearm was brandished in the offending in 2017 against LK and DK, at which time he was a prohibited person in possession of a firearm. Also in 2014, he was sentenced to a term of imprisonment for possessing a firearm as a prohibited person, along with other dishonesty and driving offences.

23 In applying and interpreting the Bail Act 1977 (Vic) ('The Act'), the Court must have regard to the guiding principles set out in s 1B of the Act.[11] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and right to liberty.[12]

24 Section 4AA of the Act sets out the two-step test that applies to the Court's consideration of an application for bail, and which applies to this application.

25 Section 4AA(2)(c)(iv) of the Act provides that the 'exceptional circumstances' test applies to a decision whether to grant bail to a person accused of a Schedule 2 offence, if that offence is alleged to have been committed during the period of a CCO made in respect of the accused for any Schedule 2 offence.

26 As the applicant is accused of committing Schedule 2 offences[13] while subject to a 24-month CCO imposed for other Schedule 2 offences,[14] it follows that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[15]

27 In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed by s 3AAA(1) of the Act.[16]

28 The phrase 'exceptional circumstances' is not defined in the Act. In order to be considered exceptional, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal, in order to justify the admission of the applicant to bail'.[17] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[18]

29 Even if the Court is satisfied that exceptional circumstances exist to justify a grant of bail, the Court must apply the unacceptable risk test.[19] That is, bail must be refused if the Court is satisfied by the respondent[20] that there is an unacceptable risk that the applicant would, if released on bail:

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail.[21]

30 In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[22]

31 Both parties agree that the present charges upon which bail is sought do not relate to family violence. However, the respondent's affidavit confirms that there are two active FVIO's currently in place against the applicant, as follows:

(a) a final FVIO with no-contact conditions was issued at the Broadmeadows Magistrates' Court on 14 December 2018 naming the applicant's ex-partner, LK and her son, DK, as protected persons. That order expires on 14 December 2021; and

(b) a final FVIO with no-contact conditions was issued at the Broadmeadows Magistrates' Court on 5 February 2020 naming CF as the protected person. That order expires on 4 February 2022.

32 At the hearing, Mr Dunn QC adopted the affidavit of Theo Magazis,[23] along with further documents filed in support of bail including an updated letter from The Cottage dated 14 May 2021,[24] an affidavit from the applicant's brother offering a $100,000.00 surety,[25] and a character reference from the applicant's brother.[26] Written submissions on behalf of the applicant were also tendered.[27] In oral submissions Mr Dunn, put the applicant's case very succinctly. He referred to the guiding principles in the Act and emphasised the presumption of innocence, noting that the Zahra charges are strongly contested on the basis that the prosecution cannot establish that the revolver belonged to the applicant.

33 The applicant relies on the following combination of factors to demonstrate the existence of exceptional circumstances justifying the grant of bail.

Seriousness of the alleged offending and strength of the prosecution case

34 Although he is charged with serious offending, the applicant submits that the prosecution case involves triable issues. He has not made any admissions. Regarding the car that contained the firearm on 11 November 2020, it was one of three cars in the driveway at the Westmeadows address at the time, and it was 'boxed in' by other cars. The car is not registered to the applicant, but is a car that is known to be 'hired out' among people known to police.[28] The police have no evidence as to who had been driving it on 10 November 2020, apart from the CCTV showing a link between the timing of the applicant entering the Westmeadows house and the timing of the car arriving at the premises. The revolver was found inside a bag that did not contain any identification belonging to the applicant. The profile obtained from the handgun trigger of the revolver was a mixed DNA profile with three contributors. The satchel itself that the revolver was found in was not swabbed for DNA or tested for fingerprints, nor was the passenger side door of the car. Even if the inference is available that the applicant drove that vehicle before entering the house on 10 November 2020, there is a lack of evidence as to the length of time he spent in the car or whether any other person was in the car.

Availability of residential drug rehabilitation

35 The applicant acknowledges his lengthy history of substance use. If granted conditional bail, he would enter a drug rehabilitation at 'The Cottage' in Shepparton. The Cottage program requires residents to abstain from alcohol and illicit substances, undergo regular drug screening, participate in the development of an individual case management and mental health plan, and attend educational and therapeutic meetings and workshops. Mr Dunn cross-examined the informant LSC Zahra, and established that although the applicant has prior convictions dating back to the Children's Court and has been in and out of custody since then, drugs and mental health have been core issues in his past offending.[29]

36 The applicant submits that he has remained drug-free during his period on remand, and is now in a strong mental and physical state to commence a long-term rehabilitation program.

37 Ms Hutchison completed an assessment report and considered that the applicant has a substance use disorder and was suitable for admission to the facility.[30] She recommended that the applicant be admitted for a minimum four-month period, and that he be referred to Dr Ed Ogden at Goulburn Valley Health for treatment of his addiction and underlying mental health issues. Aaron Gilhooley, general manager of The Cottage, confirmed that a bed at the facility will be available for the applicant from 25 May 2021.[31] Should the applicant abscond or return a positive urine screen whilst at The Cottage, Mr Gilhooley stated that this would be reported to the informant as soon as practicable.

38 Mr Dunn submitted that attempts by the applicant to enter a drug rehabilitation program in custody have not borne fruit and he cannot get the kind of intensive treatment that he needs in prison. He has been showing a changed attitude to rehabilitation on remand by graduating through billet positions, and avoiding strife. Mr Dunn submitted that The Cottage program is almost the applicant's last chance at rehabilitation, as other approaches have not worked. Ultimately, it will benefit the community if the applicant's rehabilitation can occur at The Cottage.

39 The applicant's brother, Emmanuel, offers a $100,000 surety by way of equity in property.

Criminal history and compliance with earlier grants of bail

40 Mr Dunn QC cross-examined the informant LSC Zahra, and established that the applicant has prior convictions dating back to the Children's Court, and that he has been in and out of custody since then.

41 Despite his lengthy criminal history, a conviction for committing an indictable offence on bail, dealt with at the same time as the offending relating to LK and DK in January 2019[32] and failing to answer bail on one occasion in 2010, the applicant submits that there have been numerous instances when he has complied with bail conditions.

42 Mr Dunn pointed out that most things in the applicant's life have not gone well, and that long term drug abuse and poor mental health have been underlying factors. Prison has not worked to improve his situation. After two years in prison, following the 2017 offending, the applicant at first performed poorly on his CCO. But then he started to improve, and despite Corrections preparing a breach report in August 2020, the report recommended that the CCO be reinstated for the applicant. The author of the report stated:

Mr A[J]'s compliance overall has been less than satisfactory accruing a multitude of absences. However, it is noted that much of Mr A[J]'s poor compliance was earlier in his order at a time when his mental health was in poor state. Mr A[J]'s compliance has since improved and he has made inroads into progressing with his order conditions, attending dual diagnosis counselling for mental health and substance abuse, attending an offending behaviour program as well as being re-assessed for a MBCP.[33] He has also completed most of his community work hours and it is expected that the remaining hours will be credited towards treatment.

Given the above progress made by Mr A[J], this service respectfully recommends that the Court confirm Mr A[J]'s CCO to allow him to continue the progress that he is making with his treatment and rehabilitation. Whilst it cannot be unnoticed that he has further offended whilst on an order, this service respectfully recommends a penalty be applied to Mr A[J] for the contravention of a CCO.

43 The applicant anticipates a lengthy delay before the Zahra matters proceed to trial in the County Court. In January 2021, Chief Judge Kidd of the County Court released a revised listing schedule for Melbourne criminal trials commencing in 2021 which indicated persons committed for trial after July 2021 will not have their trial heard before the end of 2023. The informant could not dispute the applicant's information about delay until trial.

44 If refused bail, the applicant contends that he may spend between two and three years on remand.

45 Although there has been a recent easing of restrictions, the applicant submits that his access to personal visits and programs in custody continues to be limited by reason of COVID-19.

46 The applicant applied to undertake a drug rehabilitation course when he was first remanded in custody. As mentioned above, has not been able to start a drug rehabilitation course in prison because preference is given to sentenced prisoners. The applicant has been waiting to complete the program for about six months now. Many of the usual custodial programs and courses were halted during COVID-19. However, he has on his own account, remained drug free in prison and produced clean urine tests.[34]

Ties to the jurisdiction and stable accommodation

47 The applicant enjoys the support of his mother and siblings, all of whom reside in Victoria. Once he has completed a period of residential drug rehabilitation, bail conditions could be re-visited with the possibility of the applicant returning to reside with his mother at the Westmeadows address.

48 The applicant has a new romantic association with an Assyrian woman who is a conveyancer by occupation. She is a law abiding person.

49 On completion of residential drug rehabilitation, the applicant proposes to undertake a full-time plumbing apprenticeship through his brother's plumbing business. The applicant has previously undertaken casual work with the business, but now hopes to pursue becoming a plumber. His brother has confirmed a full-time position is available, and that the applicant's apprenticeship study can be completed at Victoria University.[35]

50 The applicant submits that he does not pose an unacceptable risk of the kind set out in the Act, owing to his strong ties to the jurisdiction, the offer of a surety, and the availability of a supervised residential drug rehabilitation program. He is prepared to abide by all conditions deemed suitable by the Court.

51 The risk should not be seen as unacceptable because the applicant will not be released to go at large in the community. Mr Dunn stressed that this is a limited bail application to enable the applicant to get the help he needs, which is simply not available at present in prison.

52 Ms Hutchison described the security aspects of the program and referred to CCTV cameras which assist in notification if someone leaves the facility. She said only two people have absconded from The Cottage without formal discharge and 75% of residents complete the program without discharge or removal from the program. There are greater restrictions in place for the first four weeks, with some relaxation after successful completion of four weeks. Urine screens are conducted including random screens and screens when visitors attend, or if a resident is suspected of using.

53 Although the informant had experience with one offender using drugs whilst at the Cottage, he was appropriately notified by the Cottage about that, and the offender was arrested and charged with breach of bail. The informant had no other experience of offenders going to The Cottage.

54 Mr Dunn ultimately submitted that given the link between the applicant's offending and his drug addiction (and underlying mental health issues) the community will benefit from the applicant addressing those issues.

55 The respondent opposes the application on the basis that the applicant has not demonstrated exceptional circumstances justifying the grant of bail. Bail is also opposed on the basis that the applicant poses an unacceptable risk of committing an offence while on bail and/or endangering the safety or welfare of any person.

56 The respondent contends that the factors relied upon by the applicant, even when viewed in combination, are not exceptional. Many of the purported supportive factors for the applicant were available at the time of his alleged offending, including family support, residence at the Westmeadows address, and employment with his brother. The respondent submitted that nothing had changed for the applicant since the Zahra charges that would take this case out of the norm.[36]

(a) Regarding the strength of the prosecution case: the respondent submits this is a very strong circumstantial case regarding possession of the firearm.[37] Reference was made to the location of the keys to the car in which the gun was found, the movements of that car and of the applicant on the 10 November 2020 as shown in the CCTV footage and to DNA consistent with the applicant found on the trigger of the revolver.[38]

(b) Regarding the availability of residential drug rehabilitation: the respondent conceded that the applicant has not previously participated in a residential drug rehabilitation program, but contends that he has had the chance to address his substance use through community based dispositions in the past, dating back to 2005. The applicant has breached these kinds of orders in the past resulting in them being cancelled.[39] His contraventions have included returning positive urine drug screens.[40] However, the respondent concedes that the applicant was progressing well in the Hi Roads program on his current CCO.

(c) Regarding delay and likely sentence: the respondent concedes that there will be delay in this matter if it proceeds to trial, because of backlogs caused by COVID-19. However, at the hearing, Counsel for the respondent submitted that now that trials were being listed again, the extent of delay was difficult to predict,[41] and the applicant has a committal date listed in August this year. Regardless of delay, the respondent submitted that it was not sufficient on its own to justify a grant of bail in this case. This was because the applicant faces a significant sentence of imprisonment if found guilty, given the ten year maximum penalty applicable to the firearm possession charges, and his prior firearm convictions.[42] It was argued that the applicant's time on remand, was not likely to exceed a sentence for these charges.[43]

(d) Regarding family support: the respondent submits that the applicant had family support and residence with family in the past, but this has never deterred him from offending.[44]

58 In addition to the above matters, the respondent submits that the applicant poses an unacceptable risk of committing further offences while on bail, and/or of endangering the safety or welfare of any person. It was argued that unacceptable risk is established due to a combination of the following factors:

(a) the nature and serious of his current alleged offending,[45] which the respondent submits evidences both a continuation and escalation in his offending behaviour;[46]

(b) the firearm the subject of the present charges is suspected to have been used in a non-fatal shooting six weeks prior to the applicant's arrest. The investigation into that shooting remains ongoing, though the respondent concedes the alleged victim has refused to give a statement to police, and the matter has not been able to progress any further;[47]

(d) his failure to comply with previously imposed community based dispositions leading to their eventual cancellation;

(e) the applicant has previously committed an indictable offence whilst on bail on one occasion;

(f) the Zahra offending occurred whilst on summons for other offences and subject to a CCO, and a firearm prohibition order, demonstrating his disregard of court orders;[48]

(g) the applicant has a history of returning to drug use after being released from custody;[49]

(h) the likely significant custodial sentence if he is found guilty of the current offending;[50]

(i) the previous sentence of two years imprisonment and a 24 month CCO that did not deter him from further offending;[51] and

(j) the two active FVIOs in place against the applicant, leading to a concern that family violence may continue against his new partner.[52]

59 Regarding the strength of the prosecution case, I accept that the DNA result on the firearm and the link between the applicant and fingerprints on the BMW (BGC 439), along with the CCTV evidence, are suggestive of a fairly strong prosecution case. However, there are triable issues that are open to be explored in cross-examination, and pre-committal, it is difficult to fully assess the strength of the prosecution case. I am conscious of the presumption of innocence which must be given weight in an application for bail, along with the purposes of bail which are aimed at securing a person's attendance for trial as well as protection of the community from offences or from harm to the safety of persons. These factors currently incorporated in the Bail Act were also factors at common law.[53]

60 I have carefully considered the onus on the applicant to establish exceptional circumstances and, if satisfied, the onus on the respondent to establish unacceptable risk.

61 I accept that, if found guilty on the Zahra charges, the applicant could face a significant term of imprisonment. He has two prior convictions for possessing a firearm as a prohibited person: one in 2014 when he was in his late 20s and the other conviction relates to the 2017 assault on LK and DK involving threatening behaviour with a firearm, leading to the sentence imposed on 24 January 2019. On the other hand, the applicant has spent 189 days on remand on the Zahra charges,[54] and is now drug free.

Has the applicant satisfied the Court as to exceptional circumstances to justify the grant of bail?

62 The COVID-19 pandemic has led to delays in the listing of trials in the County Court. This matter is unlikely to be given priority over matters involving vulnerable witnesses or sexual offence cases. On the current information available to this Court,[55] the trial of this matter may not proceed until the end of 2023. Therefore, it is possible that if convicted of the Zahra charges, the time spent on remand could eclipse the sentence contemplated by the Court at that time. If the applicant spent the time, whilst awaiting trial, reforming his character and actively rehabilitating himself, the prospect that if convicted, any sentence imposed on the Zahra charges could eclipse the period between charges and sentence, is greater.

63 I have also taken into account the availability of a placement at The Cottage. While I accept that the applicant has been subject to CCOs with therapeutic conditions before, it appears he has never had an opportunity like the present one. Drug abuse appears to have been a constant throughout the applicant's criminal history, and there would seem to be a link between his offending and his addiction. There may well be an underlying mental health condition linked to his offending. The evidence given by Ms Hutchison was quite persuasive regarding the nature of the program conducted by The Cottage and her assessment of the applicant's current level of motivation to undertake the program. The program appears rigorous, and could be expected to meaningfully address the applicant's drug addiction, and underlying mental health conditions (which could include Post-Traumatic Stress Disorder).[56]

64 It was also clear from Ms Hutchison's evidence that the applicant would not have been approved for admission into The Cottage unless he was willing to complete their program. Ms Hutchison told the Court that, in assessing candidates for The Cottage program, she looks for a real willingness to turn ones' life around and to live without drugs and alcohol, rather than just a willingness to leave prison. She referred to the reported shift in the applicant's behaviour while he was undertaking the CCO before his arrest and that the applicant is now 'definitely in a place of willingness to change his ways'.[57]

65 It seems that the applicant was making some limited progress on his CCO before the current alleged offending. The Court was informed that he has been drug free during his incarceration. His conduct on remand shows an improved attitude. The Court was informed he has returned clean urine drug screens, and he has been successful in taking up a position as a floor billet and progressing to a painting billet in his unit (with added responsibilities).

66 I accept these small steps suggest a willingness to rehabilitate. Placement at The Cottage represents an opportunity for the applicant to address his past behaviour in a rigorous and secure setting. I note the decision of Croucher J in Turner (aka Williams) v Lill which was referred to by the applicant.[58] I agree that keeping the applicant on remand does not offer the same long-term rehabilitation and recovery prospects that The Cottage does, should the applicant be successful in that program.

67 Further, Ms Hutchison confirmed that the applicant understands he will not likely get another chance like this one to address his behaviour and his addiction. I add that he is very unlikely to get another chance at bail on the Zahra charges if he returns to this Court in breach of his bail.

68 The availability of this program, and the applicant's willingness to complete it, is significant in the context of the applicant's criminal history. Since his youth, he has been caught in a revolving door of imprisonment and releases. The material before me suggests a history of childhood trauma.[59] The applicant's drug addiction may be linked to his traumatic childhood, so the opportunity to obtain focused treatment in a therapeutic setting is likely to be of benefit to him, and ultimately to the wider community.

69 I also accept that the applicant has not been able to undertake the drug treatment program on remand despite applying to do so in November 2020. Therefore, the availability of a residential rehabilitation facility is a factor in favour of granting bail, in the context of the limited availability of programs in prison, due to COVID-19 and other factors.[60]

70 The placement at The Cottage under conditional bail (which adds an additional layer of motivation for him), provides the opportunity of a circuit-breaker for the applicant, in the context of his past history of offending and imprisonment. If convicted of the Zahra offences, the Court sentencing him will be better placed to approach that exercise with information as to whether he has been able to complete the program run by The Cottage, and thus, whether he is capable of rehabilitation.[61] It benefits the community if the applicant's drug addiction is treated, even if he is ultimately returned to custody upon conviction and sentencing on his pending charges.[62]

71 In relation to the respondent's submission that many of the supports available now were in place at the time of the applicant's arrest, while it is true the applicant has maintained family support throughout that period, he has now been drug-free for six months, has an offer of residential rehabilitation available to him, and has an improved attitude towards addressing his drug and mental health issues.

72 The availability of a substantial surety offered by the applicant's brother, is an important matter in favour of bail. I have taken note of his letter of reference which states that the applicant was undertaking part time work for him in the past, and that he is willing to offer full-time employment, following drug rehabilitation, in the future.

73 Having regard to the combination of the above factors, I am satisfied that there are exceptional circumstances in favour of granting bail in this case.

Has the respondent satisfied the Court as to unacceptable risk?

74 I accept that, given his history of non-compliance with court orders and his single prior charge for failing to answer bail (although I note Mr Dunn's submission that the applicant was in fact in custody at the time)[63] and single charge for offending while on bail,[64] that bailing the applicant does involve a measure of risk. His Counsel conceded as much.

75 The applicant was sentenced to a CBO which he breached at the age of 18, in 2005. He was also placed on a CCO in 2013 at the age of 27, and breached that order later that same year. Furthermore, a CCO followed on from his two years in custody as part of the sentence for the 2017 offences involving LK and DK, so if convicted of the Zahra offences, or other pending charges, he would be in breach of the current CCO by re-offending. However, the risk to the community would be substantially reduced if the applicant is required to reside in the proposed residential drug rehabilitation facility. He has never had this opportunity in the past. It is likely that he has not been ready to pursue this kind of program in the past. It appears that he was beginning to confront his psychological and mental health issues as part of the 2019/2020 CCO, in the period leading up to his arrest on the Zahra charges.

76 It is clear from Ms Hutchison's evidence that any breach of bail conditions, if the applicant is bailed to The Cottage, would result in an immediate report to the informant. The applicant would be supervised by staff (who are present 24 hours a day), and monitored by the facility's CCTV.

77 I accept the submission of Counsel for the applicant that the current application seeks to replace one place of confinement with another. The fact that the applicant's bail will be in place for a period of four months, (or at least until the conclusion of his committal on the Zahra charges), after which time it will be either reviewed by this Court or replaced with new bail after the Committal, and that under this grant of bail, he will be required to reside at The Cottage, ameliorates the risk of him committing offences and/or endangering the safety and wellbeing of others. On Ms Hutchison's evidence, he would be occupied throughout the day with The Cottage program, which limits the risk of him breaching his conditions of bail. Further, I also note that, whilst it was not raised by the parties, The Cottage is located over 160 kilometres from the CBD (almost a two hour drive), which is also protective against him meeting up with criminal associates.

78 I also take account of the fact that the stakes are high for the applicant, given his past history. I accept the evidence from Ms Hutchison, and the submissions of the applicant's Counsel, that this fact has been emphasised to the applicant.

79 The applicant's brother has indicated a strong willingness to aid the applicant's rehabilitation by putting up a surety and by offering the applicant a job after he undertakes drug rehabilitation. This is a very significant matter in my determination of the current application. The substantial surety offered by the applicant's brother will help ameliorate risk posed by the applicant in this case.

80 Ultimately, I am not persuaded by the respondent that the conditional bail to a residential rehabilitation facility along with a $100,000.00 surety is such that the risk of granting bail on those terms would be unacceptable. I will monitor the applicant's progress on bail until the date of committal proceedings.

81 Accordingly, bail is granted on conditions that are set out in my Orders of today's date.

[1] Pursuant to s 146 of the Firearms Act 1996 ('Firearms Act').

[2] The applicant was a 'prohibited person' within the meaning of the Firearms Act on any of the following grounds: (1) as a result of him being a Respondent to a final Family Violence Intervention Order made on 14 December 2018; (2) was a person not more than 5 years have expired since the person finished serving a term of imprisonment of less than 5 years for such an offence; and (3) that he was subject to a Community Corrections Order.

[3] Charge 5 was withdrawn on at the Committal Mention on 26 April 2021, see Respondent's Affidavit in Response to an Application for Bail of Ashleigh Kate Ruberto dated 4 May 2021 ('Affidavit in Response'), [6(a)].

[4] This charge was initially particularised as possess 'steroids' but was particularised to identify the specific steroid in issue - Somatropin - at the Committal Mention on 26 April 2021.

[5] This charge was laid on 8 April 2021.

[6] See Case Results Summary - Biological Sciences Group, 1 "Not Excluded (LR= 2.2 Billion)", at Appendix A of the Informant's Report annexed at AR-4 of the Affidavit in Response.

[8] Possess cocaine, Possess Methylamphetamine, Possess drug of dependence (not named), Possess buprenorphine, Breach alcohol interlock condition, Drive without "P" plates displayed.

[9] Annexed at TM-7 of the Applicant's Affidavit in Support of Application for Bail of Thea Magazis dated 9 April 2021 ('Affidavit in Support').

[10] Transcript of Proceedings, Application for Bail by AJ, (Supreme Court of Victoria, S ECR 2021 0086, Jane Dixon J), 19 May 2021 ('Transcript'), 34.

[12] The Act, ss 1B(1)(a) and 1B(1)(b).

[13] Namely, indictable offences allegedly committed by the applicant in the matter of informant Zahra while he was subject to two separate summons to answer charges for indictable offences in the matters of informants West and Shine (sch 2 item 1(b) of the Act).

[14] The CCO was imposed for several offences, including making a threat to kill that was also a family violence offence (sch 2 item 7 of the Act), and committing an indictable offence whilst on bail (sch 2 item 30 of the Act).

[15] Sections 4AA(2)(c)(iv), 4A(1A) and 4A(2) of the Act.

[17] Re CT [2018] VSC 559 [64] (Champion J), citing with approval Re Sam [2017] VSC 91 [22] (Beach JA).

[18] Re CT [2018] VSC 559 [65] (Champion J), citing with approval Re Fairest [2015] VSC 375 [17]-[18], [22] (Weinberg JA).

[26] Undated, annexed to the Affidavit in Support at TM-11.

[30] Affidavit in Support, annexure TM-9.

[32] This appears to relate to an offence committed whilst on bail in 2017.

[33] Referring to a Men's Behavioral Change Program.

[34] Although no screening results were provided I have no reason to doubt counsel's instructions about this which were unchallenged.

[35] Character reference annexed at TM-11 to the Affidavit in Response.

[38] Respondent's Submissions in Opposition to Bail, [5(a)], as part of a mixed DNA profile.

[39] Whilst the Community Corrections Order Report records five CCO/CBO cancellations, four of these occurred in or before February 2008 and three of them related to fine defaults. The respondent referred to seven breaches however, the remaining two referred to parole cancellations in circumstances in which the applicant was not released on parole.

[40] Respondent's Submissions in Opposition to Bail, [5(b)].

[42] The Respondent also made submissions in response to the proposal that the applicant live at his family home on his completion of his residential rehabilitation. However, because the applicant did not pursue this, those submissions are no longer relevant.

[43] Respondent Submissions in Opposition to Bail, [7(g)].

[45] Respondent's Submissions in Opposition to Bail, [7(a)].

[47] Respondent's Submissions in Opposition to Bail, [7(b)].

[49] Informant Report of Leading Senior Constable Jason Zahra, [22], Exhibited at 'AR-4' to the Affidavit in Response ('Informant's Report').

[50] Respondent's Submissions in Opposition to Bail, [7(g)].

[51] Respondent's Submissions in Opposition to Bail, [7(d)].

[53] R v Light [1954] VicLawRp 1; [1954] VLR 152 per Scholl J referred to by Bell J in Woods v DPP [2014] VSC 1, [33].

[54] As at the date of the hearing of this application.

[55] 'Schedule for Melbourne Criminal Trials commencing in January 2021' released by Chief Judge Kidd of the County Court.

[56] See Ms Hutchison's evidence and her letter dated 14 May 2021.

[58] [2020] VSC 812.

[59] Arising from his father's severe corporal punishment, and being sexually abused by an uncle (which, when reported to his father, resulted in yet more physical abuse).

[60] As it was in Re Nicholls [2020] VSC 189.

[61] As found in Re Gaylor [2019] VSC 46, [44], [45] - though I note that case was dealing with the compelling reason test.

[62] See Re Griffin [2020] VSC 626, [45].

[64] Relating to the offending against LK and DK, at which time the applicant was on three separate counts of bail, and he was ultimately charged with one rolled up charge of committing indictable offence whilst on bail, see Summary of Prosecution Opening dated 9 October 2018, annexed to the Affidavit in Support at TM-7 (part of the CCO Contravention Report attachments).