Re Application for Bail by Foster [2020] VSC 62 (21 February 2020)

1 By application dated 18 December 2019, Anthony Foster applied for bail.

2 Upon hearing the application on 15 January 2020, I granted bail to the applicant, indicating that I would publish my reasons for doing so later. These are those reasons.

3 On 27 November 2019 the applicant was arrested and remanded in custody on charges of theft of a motor vehicle,[1] possessing a drug of dependence (methylamphetamine),[2] possessing an imitation firearm,[3] and two counts of committing an indictable offence whilst on bail.[4] The charges are next listed for context mention at the Frankston Magistrates' Court on 4 March 2020.

4 The charges relate to allegations of events said to have occurred between 22 and 26 November 2019. At that time, the applicant was subject to an adjourned undertaking entered into on 23 August 2019, operative until 21 August 2020, following convictions for property and bail offences.

5 As the applicant is accused of committing a number of Schedule 2 offences[5] while serving a sentence in respect of other Schedule 2 offences,[6] bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify his release on bail.[7]

6 At the time of the alleged offending, the applicant was on summons and admitted to bail in respect of two separate matters. He was charged on summons with one count of theft on 9 December 2019 and was granted police bail on 22 November 2019 for charges alleging three counts of obtaining property by deception, handling stolen goods and going equipped to steal. These matters are next listed on 4 March 2020 and 28 May 2020 respectively.

7 The applicant has twice been refused bail on the current charges. He first applied for bail in person at the Frankston Magistrates' Court on the day of his arrest and then by legal representation on 9 December 2019. On both occasions bail was refused on the basis that the applicant had failed to demonstrate exceptional circumstances.

8 Overnight on 22 November 2019 a Ford Falcon station wagon was stolen from a carpark near a Frankston shopping centre. On 26 November 2019, police received a report that the stolen car was in the driveway of an address in Frankston. Later that day police attended that address and identified the car parked in the driveway behind an unlocked gate. Upon searching the vehicle, police located an imitation handgun, a small ziplock bag filled with 3.5 grams of what is suspected to be methylamphetamine and a bag containing documents addressed to the applicant.

9 The applicant was present at the address and was arrested by police. Upon questioning, he is alleged to have made admissions regarding the ownership of the bag and paperwork inside it, but denied knowing that the bag was in the car. The conversation was captured by a police body worn camera. I have watched that footage.

10 Also present at the address was an alleged co-offender, Ms Rollands. She told police that she was in possession of the stolen vehicle but could not say who drove it to the address. Ms Rollands was arrested and stated during her interview that the occupants of the address had used drugs inside the car. She was released pending summons.

11 The applicant is entitled to bail unless the Act requires the Court to refuse bail.[8] As already stated, in this application the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[9] Further, if exceptional circumstances are demonstrated, bail must not be granted if the Court is satisfied that the applicant is an unacceptable risk.[10]

12 The burden of satisfying the Court as to the existence of exceptional circumstances rests on the applicant.

13 In considering whether exceptional circumstances exist, the Court is required to take into account the 'surrounding circumstances' delineated in s 3AAA of the Act.[11] Exceptional circumstances may be demonstrated by a single circumstance or through a combination of factors relating to the personal circumstances of the applicant and the strength of the prosecution case.[12] To be exceptional, the relevant circumstances must demonstrate something beyond the normal or typical such as to warrant the admission to bail.

14 The applicant identifies as an Aboriginal man. Section 3A of the Act requires the Court to consider any issues arising from his Aboriginality. The particular vulnerability of Aboriginal persons in custody,[13] when combined with other factors such as available alternatives to remand, opportunities for an applicant to explore their culture[14] and the availability of drug and alcohol rehabilitation 'based on therapeutic community principles and Aboriginal cultural practices'[15] may satisfy the exceptional circumstances test.

15 Applying the unacceptable risk test,[16] the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail:

(i) endanger the safety or welfare of any person; 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.[17]

16 The Court is again required to have regard to the 'surrounding circumstances' as defined in section 3AAA of the Act[18] and also consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[19]

17 And, when interpreting the Act, the Court is required to take into account the guiding principles set out in section 1B(1).[20]

18 The applicant relied upon a combination of factors to demonstrate exceptional circumstances.

19 First, his special vulnerability as an Aboriginal person.

20 Second, his personal circumstances. The applicant is 20 years of age. He is not currently employed. The evidence filed indicates that he has lived a difficult life thus far.

21 His childhood was unstable, involving frequent involvement with child protection workers and multiple placements in Department of Health and Human Services residential care units to the age of 18. His parents both had substance abuse issues. His father, who died of a suspected drug overdose in 2016, was occasionally incarcerated.

22 The applicant was diagnosed with attention deficit hyperactivity disorder at the Parkville Youth Justice Centre in 2015. He has a history of polysubstance abuse, including use of cannabis and methylamphetamine. The applicant completed his year 12 Victorian Certificate of Applied Learning studies in 2017 while on remand at the Youth Unit at Port Philip Prison.

23 Third, the availability of residential rehabilitation and treatment at Bunjilwarra Koori Youth Alcohol and Drug Healing Service ('Bunjilwarra'). Bunjilwarra is a secure residential rehabilitation facility for young Aboriginal people aged 16 to 25. Admission to the program is voluntary and offers a holistic therapeutic model incorporating individual drug and alcohol counselling, cognitive behavioural therapy, case management support, life skills education and cultural programs.

24 A letter from the intake co-ordinator confirmed the applicant's place in the program and evidence led from Mr Peter Dawson, Clinical Lead at Bunjilwarra, was to the effect that the applicant had self-referred to Bunjilwarra prior to the alleged offending and that if granted bail to reside at its premises, staff of the program would immediately notify the informant should the applicant self-discharge or leave the premises.

25 Fourth, the availability of additional support services. The applicant has had some involvement with Youth Support and Advocacy Services ('YSAS'). The evidence of Mr Dawson was the Bunjilwarra would refer the applicant to other services to support him, as necessary.

26 Fifth, the relatively minor nature of the offending and, in some respects, the strength of the prosecution case. It was submitted that the charge of theft of a motor vehicle was weak. The applicant was not alleged to have stolen the vehicle from the Frankston carpark and the bag alleged to belong to the applicant was located inside the car while it was unoccupied. While the other charges are conceded to be stronger, the applicant submits that they are not, in all the circumstances, serious. He was charged with possession and not trafficking with respect to the substance suspected to be methylamphetamine and, although the weapon charge is objectively serious, the applicant was not alleged to have used the imitation firearm.

27 Sixth, any sentence is likely to be less than time spent in custody on remand. The contest mention date of 4 March 2020 is some 99 days after the applicant's arrest. If the charges are contested, the likely date of the hearing is September 2020. The applicant submits that while a custodial disposition is likely in the event of a finding of guilt, a non-custodial disposition is not unrealistic in the event that he successfully completes the Bunjilwarra program.

28 The applicant also accepted his criminal history, which shows convictions and findings of guilt for offences including armed robbery, aggravated burglary, burglary, assault, possession of a drug of dependence, possession of a prohibited weapon and a number of dishonesty offences. He also has a history of bail offences and the contravention of other court orders. These include failing to answer bail on five occasions, three instances of contravening a conduct condition of bail, six counts of committing an indictable offence whilst on bail and breaching probation orders on two occasions.

29 With respect to unacceptable risk, the applicant submitted that his risk of committing an offence while on bail, failing to surrender into custody and/or endangering he safety or welfare of any person if released on bail could be mitigated to an acceptable level through the imposition of stringent bail conditions centred around residence at Bunjilwarra.

30 In its written material, the respondent conceded that it was open to the Court to find that the applicant had demonstrated exceptional circumstances. At the hearing of the application the respondent made no submission as to whether the Court should do so or not.

31 But the respondent opposed bail on the basis that the applicant presented an unacceptable risk of committing an offence while on bail, failing to surrender into custody and/or endangering the safety or welfare of any person if released on bail. It was submitted that the current alleged offending occurred some four days after being admitted to bail on charges of obtaining property by deception, handling stolen goods and going equipped to steal. And, given that the applicant's illicit drug use, he is a risk of reoffending to support his dependence. The respondent did tender a colour image of the imitation firearm to illustrate its appearance.

32 Further, the respondent submitted that the Court could have no confidence that the respondent would comply with his bail conditions given his history of offending while on bail and failing to answer bail.

33 In my view, the applicant has demonstrated exceptional circumstances. The concession of the respondent on this issue was both appropriate and fair. Although the test is stringent, the combination of the applicant's youth, Aboriginality and his clear desire to attend Bunjilwarra to address his drug issues and explore his culture coupled with the likely delay to any final hearing of the charges demonstrate satisfaction of the exceptional circumstances test.

34 Given his past history and drug issues, the applicant does present a significant risk of endangering the safety or welfare of persons, committing an offence while on bail and failing to answer bail if he is admitted to bail. However, in my view that risk can be mitigated by conditions, so as to render the risk acceptable.

35 The availability of a place at Bunjilwarra is pivotal to this finding. The evidence establishes that Bunjilwarra is a purpose built 12-bed residential rehabilitation and healing service based in Hastings. Admission is voluntary and the formal program is three months long, but is flexible in time. The program is designed to achieve three outcomes for young Aboriginal people. First, to provide a safe and supportive environment to manage alcohol and/or drug issues through active participation in therapeutic programs targeted at development of living skills and strengthening of cultural identity and spiritual wellbeing. Second, improvement of physical, social and emotional wellbeing and strengthening of connection to family and community. Third, development of alternative behaviours, coping strategies and resilience for reintegration into the community. The program is based on therapeutic principles and Aboriginal cultural practices. These include, by way of example, counselling sessions, Narcotics Anonymous sessions, case management support, gym sessions, Landcare work, men's business, women's business and Koori art.

36 It is also of significance that the applicant self-referred to the program prior to the alleged offending. Mr Dawson said that the workers at the program, through previous contact, had an understanding of the applicant's strengths and weaknesses and would tailor the applicant's sessions and activities accordingly.

37 If the applicant chooses to leave Bunjilwarra he will not be prevented, but Mr Dawson undertook to immediately notify the informant in that event. Mr Dawson also undertook to prepare periodic reports for the Court on the applicant's progress. Accordingly, the combination of residence at Bunjilwarra, judicial monitoring and conditions designed to distance the applicant from his former associates and lifestyle ameliorate, to an acceptable level, the risk presented by the applicant.

38 In the result, I ordered that the applicant be admitted to bail upon his own undertaking with conditions that he:

1. Upon release from custody pursuant to this order, forthwith accompany Mr Peter Dawson, Clinical Lead, directly to Bunjilwarra Koori Youth Alcohol and Drug Healing Service, at 197A Hendersons Road, Hastings ('Bunjilwarra').
2. Reside at the premises of Bunjilwarra, 197A Hendersons Road, Hastings, and not change place of residence without an order of a court first obtained.
3. Participate in Bunjilwarra residential program for a minimum of three months as directed by Mr Peter Dawson, or his nominee, and follow all lawful instructions and directions of Mr Peter Dawson or his nominee.
4. Comply with each of the following requirements:

(a) Not leave the premises of Bunjilwarra, 197A Hendersons Road, Hastings, unless for a purpose authorised by Mr Peter Dawson or his nominee.

(b) At all times if absent from Bunjilwarra, 197A Hendersons Road, Hastings, be in the company of Mr Peter Dawson or his nominee.

(c) Receive only such visitors and telephone calls as are approved by Mr Peter Dawson or his nominee.

1. Not have a mobile telephone without the permission of Mr Peter Dawson or his nominee.
2. Not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner.
3. Not leave Victoria except with the permission of the Informant first obtained.
4. Not contact Bethany Rollins, Jade Hickey, Sarah Allard, Flynn Kirkwood, Cai Ceyran, directly or indirectly, whether personally, by telephone, email, social media or other means.
5. Not attend 73 Lipton Drive Frankston.
6. Not contact or approach any witness for the prosecution other than the Informant.
7. Reappear before the Court for judicial monitoring to review his compliance with bail at 09:00 on Tuesday 18 February 2020, and any further dates this Court appoints during the course of this order.
8. Attend the Magistrates' Court of Victoria on 4 March 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

[1] Contrary to the Crimes Act 1958 (Vic) ('Crimes Act'), s 74.

[2] Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73.

[3] Contrary to the Control of Weapons Act 1990 (Vic), s 5AB(1).

[4] Contrary to the Bail Act 1977 (Vic) ('Act'), s 30B.

[5] The Act, Schedule 2, items 1(a), 1(d), 30.

[6] An adjourned undertaking is a 'sentence' for the purposes of the Act, s 4AA(2)(c)(v): Re Matemberere (2018) 57 VR 647 [19]-[32] per Weinberg JA.

[12] Re Ceylan [2018] VSC 361, [46].

[13] Re LW [2019] VSC 616 per Lasry J.

[14] Re LT [2019] VSC 143, [66]-[67] per Elliot J.

[15] Re Moore [2019] VSC 344, [39] per Priest JA.