Re application for Bail by Hales [2021] VSC 274 (17 May 2021)

2 At approximately 8.40pm on 24 February 2021, the applicant and co-accused, Graham Kelly, were travelling on the South Gippsland Highway in Koo Wee Rup when their car collided with a barrier along the side of the road, causing it to plummet into grassland below and roll onto its side. A passer-by assisted the pair to exit the vehicle and emergency services were called.

3 The co-accused was receiving treatment from paramedics when police arrived at the scene, however, the applicant was no longer present. The co-accused informed police that there was a black bum bag in the vehicle that contained his life savings. He was he was then transported to the Alfred Hospital for treatment.

4 Police conducted a search of the vehicle and surrounding area where they located the black bum bag containing a zip-lock bag of heroin and $44,925 in cash, two small bottles of 1,4-butanediol, a mobile phone, two sets of scales, an additional $300 in cash and a handbag containing various cards in the applicant's name.

5 The applicant was later located at a Caltex service station on the corner of Sybella Avenue and the South Gippsland Highway, Koo Wee Rup. She had an injured arm and scratches to her chest. The applicant admitted to being a passenger in the earlier collision and was arrested and taken to Pakenham Police Station. She was subsequently released from police custody to receive treatment for her injuries at the Dandenong Hospital.

6 Further searches of the vehicle were conducted the following day, where police located and seized:

(a) more than five litres of 1,4-butanediol;

(b) five zip-lock bags containing 55.38 grams of cannabis;

(c) nine zip-lock bags containing 40.41 grams of methylamphetamine;

(d) a zip-lock bag containing 18 grams of heroin;

(e) multiple empty zip-lock bags;

(f) two Valium tablets; and

(g) an additional $300 in cash.

7 A search warrant was executed at the co-accused's Korumburra residence that evening. Police located and seized four further bottles of 1,4-butanediol, a plastic imitation firearm, 24 small bottles containing 1,4-butanediol, and a safe containing cannabis, cannabis seeds, and approximately 35 Suboxone strips. Several items belonging to the applicant were also located at the address.

8 On 19 March 2021, the co-accused was charged with trafficking in a commercial quantity of a drug of dependence (two counts), trafficking in a drug of dependence (eight counts), possessing a drug of dependence (seven counts), dealing with property suspected of being the proceeds of crime (four counts), and possessing an imitation firearm. He was remanded in custody where he remains.

9 At the time of the alleged offending, the applicant was on bail in the matters of informants Patterson and Beauchamp. Her conditions of bail in the informant Beauchamp matter required her to reside at 1 Augusta Crescent, Frankston, comply with all requirements of the Court Integrated Services Program ('CISP'), adhere to a curfew between 9.00pm and 6.00am, and prohibited her from associating with the co-accused in the current matter and using drugs of dependence.

10 Police attended 1 Augusta Crescent, Frankston on 2 March 2021 in search of the applicant, but were informed that she was no longer residing at the address.

11 The applicant attended the Dandenong Police Station on 24 March 2021 where she was arrested. She provided a 'no comment' record of interview and was charged with drug trafficking and related offences, in addition to charges of committing an indictable offence whilst on bail and four counts of contravening a conduct condition of bail for breaching the curfew, residence, and non-association conditions of her bail in the matter of informant Beauchamp. She has been remanded in custody since.

12 The applicant is charged with trafficking a commercial quantity of a drug of dependence which is a Schedule 1 offence within the meaning of the Bail Act 1977 ('the Act'). Bail must be refused unless she can satisfy this Court that exceptional circumstances exist that justify the grant of bail. In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.

13 If satisfied that exceptional circumstances exist, the Court must apply the 'unacceptable risk test'. That is, bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk. In considering whether any relevant risk is unacceptable, the Court must again have regard to the 'surrounding circumstances' set out in s 3AAA 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.

14 The applicant is in an exceptional circumstances category because she has been charged with trafficking a commercial quantity of a drug of dependence, but she would also be in an exceptional circumstances category because of the position she finds herself in in relation to the commission of offences on bail. It was not suggested on the applicant's behalf that she is anything other than in an exceptional circumstances position.

15 The applicant is 40 years old. She has two children, aged 15 and 20. Prior to her remand, she lived in a private rental property in Frankston with her daughter and was newly employed in a casual administrative role with 'Peninsula Pest Management', working approximately 20 to 35 hours per week. The applicant reports experiencing a number of personal difficulties within the last 12 months, including a Child Protection investigation concerning her daughter's care following the imprisonment of her ex-partner, trauma experienced by her daughter as a result of a sexual assault in July 2020, and a serious physical assault on her son that was staged to appear as an act of self-harm. The applicant reports that the latter event was particularly traumatic.

16 The applicant has been diagnosed with depression and has a history of polysubstance use commencing at the age of 19. She reports engaging in daily methylamphetamine use up until the time of her engagement in drug counselling facilitated by CISP in 2020. The applicant was noted to engage well throughout her six-month involvement with CISP under the conditions of bail in the informant Beauchamp matter. She remained abstinent from illicit substances during that time, and reported a consistent motivation to make pro-social changes in her life for herself and her children.

17 The applicant has a criminal history commencing in 2015 which includes a number of drug trafficking and possession offences. The matters of informants Patterson, Beauchamp and Begue, which were outstanding at the time of the alleged offending in the present matter, resolved in the Dandenong Magistrates' Court on 11 March 2021.[1] On that day, a 15-month Community Corrections Order (CCO) was imposed, with conditions requiring the applicant to perform 200 hours of community work, undergo supervision, drug treatment and rehabilitation as directed, engage in mental health assessment and treatment, and participate in offending behaviour programs. The Dandenong Magistrates' Court was unaware of the pending charges in the present matter at the time of her sentencing.

18 It can be gleaned from the affidavit of the applicant's solicitor dated 29 April 2021 that it was put to the presiding magistrate at the time of sentencing that the applicant had maintained her abstinence from illicit drugs and that she resided in her private rental accommodation in Frankston with her daughter. No suggestion was made to the magistrate that she had not been residing at her bail address, that she was not supporting her daughter at that time or that she had resumed her relationship with the co-accused. One can only assume that it is most unlikely the applicant would have been placed on a CCO if the true facts had been known to the court.

19 Community Corrections, who only made a relatively brief assessment of the applicant and expressed their reluctance to do so, accepted that the applicant could be released on the order. I am satisfied that the applicant will say and do anything that she regards in her self-interest, at any time she is in any interview with the authorities.

20 Since the applicant was arrested only a short time after the CCO was imposed, it has not been suggested to me that there has been any change in that order and the applicant does remain on that order. I will arrange for a copy of my reasons in this matter to be sent to Community Corrections. What action they choose to take or not take is purely a matter for them, and I do not make any suggestion as to what they should do one way or the other, but they should know the circumstances in which that order was made.

21 In seeking bail, the applicant relies upon a number of matters; the first of those being the strength of the Crown case. An assessment of the strength of the Crown case relies on whether or not the applicant's actual possession, joint or otherwise, of the items that give rise to the various charges can be proved beyond reasonable doubt, both in the car and at the home of the co-accused.

22 Because of the way this matter has progressed, any scientific evidence which might connect the applicant with those items one way or another is not yet available, and it is therefore difficult to assess what the strength of the Crown case ultimately will be. As the matter stands, I accept that the applicant is to have the benefit of the inability to assess the strength of the Crown case. It was submitted on her behalf that although the matters with which she is charged are inherently serious, particularly the commercial trafficking charge, the duration of her possession and the ability to assess the role played by her may well diminish any allegation that is ultimately pursued against her.

23 It was put that there will be a delay of about two years to trial. I think that is not an unreasonable estimate. Because of the inability to assess the strength and nature of the case, the proposition that there is a risk of time on remand exceeding any sentence the applicant would ultimately receive is a proper consideration. In fact, when taken in combination with the inability to assess the Crown case, these are the strongest matters in favour of exceptional circumstances having been made out for the purpose of this application.

24 The applicant fractured her wrist in the accident on 24 February 2021, and it was suggested that she required surgery. That is by no means apparent to me when considering the treatment she has been able to receive since in custody. But it is a matter that will have to be assessed. It was also suggested that she is in poor mental health. That has been asserted over a period of time. But apart from the mention of a diagnosis by a general practitioner, there is little evidence in support of it and it does not seem to me that it is likely to have contributed to her offending. It was submitted that there would be treatment available if she was released.

25 The applicant has been offered a place in the Australian community support organisation 'ACSO ReStart Program' whilst on remand. That will involve an intensive program which would operate for the first three months and would include attendance at the Ballarto Road Medical Centre to commence a mental health care plan, and encourage her to engage with direct line for drug counselling. It seems to me that there were likely earlier attempts to commence a mental health care plan that have not been particularly successful. There is also the possibility that the intended treatment and rehabilitation arranged through the CCO would be open to the applicant.

26 The applicant has provided an address at which she can reside with Georgette Papachristofilou at 2/25 Frank Street, Frankston. She can also resume her administrative role with Peninsula Pest Management. Evidence has been provided to me of both of those matters. Ms Papachristofilou has offered to provide a surety in the sum of $5,000. In this case, that is a matter of some importance. The proposed surety states in her affidavit that she understands the risk at which she puts herself, and without knowing anything about her circumstances, it strikes me that the loss of $5,000 would be very significant.

27 It was also submitted to me that on behalf of the applicant that her criminal history is limited, although it is becoming reasonably formidable. If she were convicted of the present matters, it would be quite formidable.

28 On behalf of the respondent, the difficulty in assessing the strength of the Crown case was accepted. It was also accepted that it will be at least a couple of months before such forensic material would be available, and that it might even be longer.

29 The informant also expressed concerns about the proposed address, including concern that if the applicant continued to reoffend, that would be negative for the people living in the house - and so it would be. While we cannot assume that the applicant will continue to reoffend, it is one of the risks that is involved. The informant, carrying out her usual checks, noticed that the proposed bail address is currently for sale. The applicant, with the permission of the Court, will be able to change her bail address if necessary.

30 It was noted that in relation to the present offending, the applicant was residing with the co-accused in Korumburra, which was in breach of her bail conditions. It is not conceded by the respondent that the applicant now has or will have the immediate care of her daughter.

31 Of particular concern to the respondent is that, in a quantitative sense, the alleged offending on this occasion is significantly greater than any earlier offending, indicating an escalation of her dealing in drugs, particularly when associated with the co-accused.

32 It was also noted by the respondent that in relation to the bail history, the applicant has a conviction for committing an indictable offence whilst on bail in the matters that came before the Court in March and also has a prior conviction for failing to answer bail in 2015. In relation to the present charges, the applicant faces charges of committing an indictable offence whilst on bail, and four counts of contravening a conduct condition of bail for breaching the curfew, residence and non-association conditions of bail in the earlier matters. In relation to that, I note that it is a matter of concern to me that the applicant had very significant support through CISP, which appears at the end of the day to not have been of much effect.

33 Even if the applicant does ultimately show a defence or the Crown decide not to proceed in the drug matters, there are nonetheless the charges relating to bail - which notwithstanding the support of CISP, the applicant has taken absolutely no notice of. It was those matters that led the informant to submit that the applicant has shown very little regard to her conditions of bail. In particular, concern arises out of her failure to reside at her nominated bail address. That led to the complication, from the informant's view, of not being able to find the applicant in the month between the collision occurring and ultimately her being charged. That is, between 24 February and 24 March 2021.

34 The informant, not surprisingly, contends that the proposed conditions would not be sufficient to reduce any unacceptable risk to a not unacceptable risk. I understand that submission, but ultimately I do not agree with it. I have concluded, firstly, that exceptional circumstances have been made out and secondly, that it has not been shown that there is an unacceptable risk of the applicant not answering her bail, committing an offence on bail, or endangering the welfare of members of the public whilst on bail.

35 That is not to say that I do not regard the applicant as a risk. Any reasonable person would regard her as a risk and a reasonably significant risk.

36 The Court orders that Kelly Hales has been admitted to bail on her undertaking and a surety in the sum of $5,000, and on the following special conditions:

(a) She attend the Melbourne Magistrates Court on 16 June 2021, and then surrender herself 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 herself into custody.

(b) She reside at 2/25 Frank Street, Frankston, in Victoria, and not change that address without the leave of the Court.

(c) She remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail.

(d) She present herself at the front door of the premises during those curfew hours, if and when called upon by a member of the Victorian Police Force to do so.

(e) That she report Monday, Wednesday and Friday to the officer in charge of the police station at Frankston, or his or her nominee, between the hours of 7.00am and 8.00pm, when she is notified by the informant that in person reporting has recommenced.

(f) She abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act.

(g) She provide a sample of her breath or oral fluid for testing, if required to do so by a member of the Victoria police.

(h) She not contact, directly or indirectly, her co accused, Graham Kelly, for the duration of the bail period.

(i) She not contact, directly or indirectly, any witness for the prosecution except the informant.

(j) She not leave the State of Victoria.

(k) That she reappear before the Court for judicial monitoring, for a view of her compliance with this order at 9.30am on 25 May 2021.

[1] The applicant accepted a sentencing indication for all three sets of charges and pleaded guilty to trafficking in a drug of dependence (three counts), possessing a drug of dependence (three counts), committing an indictable offence whilst on bail, unlicensed driving, dealing with property suspected of being the proceeds of crime and failing an oral fluid test within three hours of driving. The remaining charges were withdrawn.