Re Broes [2020] VSC 128 (19 March 2020)

2 On 18 June 2019, the applicant was arrested and charged by Senior Constable Mathew Albon with possession of a drug of dependence (four counts), trafficking in a drug of dependence (three counts), failing to comply with a direction to assist, dealing with property suspected of being the proceeds of crime, and possession of equipment for trafficking in a drug of dependence (the 'Albon matter'). She was later released by police on bail that same day.

3 On 19 November 2019, the applicant was arrested and charged by Senior Constable Rory Mitchell with trafficking in a drug of dependence (three counts), possession of a drug of dependence (three counts), committing an indictable offence whilst on bail, and possession of a prohibited weapon (the 'Mitchell matter'). Both sets of offences were alleged to have occurred at the same premises.

4 There is one co-accused in the Mitchell matter, who has been granted bail by the Ballarat Magistrate's Court.

5 The applicant was remanded into custody following her arrest in the Mitchell matter and was refused bail in the Ballarat Magistrates' Court on 21 November 2019. On 14 February 2020, a further application for bail in the Mitchell matter was refused, and the Magistrate revoked bail in the Albon matter. All of these matters are next listed for contest mention in the Ballarat Magistrates' Court on 8 April 2020.

6 By an application dated 5 March 2020, the applicant seeks a grant of bail in relation to all matters from this Court. As the applicant is accused of a Schedule 2 offence under the Bail Act 1977 (Vic) (the 'Act') that are alleged to have been committed while she was on bail for other Schedule 2 offences, it is common ground between the parties that bail must be refused unless she can satisfy this Court that exceptional circumstances exist to justify her release on bail.

7 Briefly, the circumstances of the alleged offending are as follows.

8 At about 10:30 am on 18 June 2019, a search warrant was executed at the applicant's home at [redacted], Mount Pleasant. The applicant was alone at the residence when the police arrived. After police explained the warrant to the applicant, she initially asked if they had the wrong address. When questioned by police whether there were any drugs in the house, she allegedly responded, 'In my room down the hall', but refused to answer any further questions.

9 During their search, police located 1.5 g of methylamphetamine, 10 methamphetamine capsules, 3.4 g of ecstasy, 11 ecstasy capsules, 6.4 g of cocaine, three tablets of a prescription medication for which she had no prescription, $3,660 in cash and various drug paraphernalia, including a pill manufacturing mould, empty snap lock bags, balloons and elastic bands.

10 The applicant was subsequently arrested and conveyed to the Ballarat police station where she admitted that she had told police that there were drugs in bedroom but thereafter provided a 'no comment' record of interview.

11 She was asked to provide the personal identification number for her phone in accordance with the requirements of s 465AAA(2) of the Crimes Act 1958 (Vic), but she refused. She was then charged and released on bail by police.

12 At about 8:35 am on 19 November 2019, a further search warrant was executed at the applicant's Mount Pleasant address. The applicant and her co-accused, Tristan Merakis, were both present at the residence. During the search, police located 326 g of cannabis, 30 g of cocaine, 20 g of MDMA, 21 ecstasy capsules, sour strap and gummy bear lollies believed to be laced with drugs of dependence, $570 in cash, a large number of resealable bags, two small scales, two Tasers, an extendable baton, a hatchet and a flick knife.

13 The applicant and co-accused were arrested and taken to the Ballarat police station. The applicant refused to be interviewed by police, suggesting they do the paperwork and let her go home. She again refused to provide the personal identification number to her phone when requested. The applicant was charged and remanded in custody by police and then by the Magistrate's Court.

14 Mr Merakis was charged with possession of a drug of dependence (three counts), trafficking in a drug of dependence (three counts), possession of a controlled weapon, possession of a prohibited weapon and dealing with property suspected of being the proceeds of crime.

15 He had no criminal history and was granted bail in the Ballarat Magistrates' Court on 21 November 2019.

16 On 11 March 2020, he pleaded guilty to two counts of trafficking in a drug of dependence and was sentenced to a 12-month community corrections order. The other charges against him were withdrawn.

17 The applicant is 32 years old. She has three children from a previous relationship, aged 15, 11 and 10 years. She shares custody of those children with her former partner. The applicant is also the respondent to an active Family Violence Intervention Order ('FVIO') that names her 15-year-old daughter, [redacted], as the affected family member. She is presently in a relationship with her co-accused.

18 Prior to being remanded in custody, she was unemployed and lived in a public housing tenancy at the Mount Pleasant address, where these offences are alleged to have occurred.

19 She otherwise has no prior criminal history, and her present period in remand is her first time in custody.

20 The Act makes it plain the applicant is entitled to bail unless the Act requires the Court to refuse bail.[1] In the present application, the applicant has been charged with trafficking in a drug of dependence, which is a Schedule 2 offence under the Act. Whilst on bail for those offences, she was charged with trafficking in a drug of dependence and committing an indictable offence whilst on bail, both of which are Schedule 2 offences. The Court is therefore required to refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[2] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[3]

21 In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances set out in s 3AAA of the Act, which include:

(a) AA0-the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.

22 In order to reach the threshold of 'exceptional', the circumstances relied on by the applicant 'must be such as to take a case out of the normal so as to justify the admission of the applicant to bail'.[4] Exceptional circumstances may be established by reason of a single exceptional circumstance or through a combination of factors, including personal factors of the applicant, the strength of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation. In this matter, the undue delay in bringing the matter to trial and some other unusual factors, which I will come to, feature prominently in the application.

23 This Court has previously held that the availability of treatment and support services in the community is of some weight in determining whether exceptional circumstances have been made out, particularly in combination with other factors, including delay or where the applicant, as in this case, has no criminal history.[5] Here the applicant has been assessed as suitable for the Court Integrated Support Program ('CISP'), which will potentially aid her rehabilitation.

24 Further, the likelihood of being sentenced to a custodial sentence that does not exceed the period spent on remand may be considered a factor relevant to the existence of exceptional circumstances. In my view, that is a significant factor in this application.

25 If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the unacceptable risk test pursuant to s 4E of the Act. That is the Court must refuse bail if satisfied by the prosecutor 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.

26 In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court, again, to have regard to the surrounding circumstances set out in s 3AAA and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is no longer unacceptable. I note that it is now accepted by both parties that such conditions will have in all likelihood that effect.

27 Under the Act, the Court must make enquiries as to whether there is an FVIO or another similar notice or order, and then consider the risk that the applicant would commit family violence if granted bail.[6] As I have previously stated, there is an FVIO in place in relation to the applicant. It was not submitted by Mr Kibel, on behalf of the respondent, that there is any real likelihood that family violence would be committed by the applicant if she were to be released on bail.

28 Finally, I must take into account the guiding principles set out in s 1B(1) of the Act, which provides as follows:

(a) maximising the safety of the community and persons affected by crime to the greatest extend possible; and

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

29 In support of the application, the applicant relied on a number of matters that, in combination, amount to exceptional circumstances. As Mr Kibel, on behalf of the respondent, has conceded that it is open to me to find the existence of exceptional circumstances, I will only summarise the applicant's submissions.

30 The applicant ultimately proposed returning to the public housing at [redacted] Mount Pleasant, as it remains available to her in the event that she is granted bail. It is noted that this is the same address where the alleged offending occurred in both the Albon and Mitchell matters.

31 As I have previously stated, she has no criminal history. While counsel on behalf of the applicant submitted that she has not yet received the opportunity of court-ordered bail, there has been some lack of diligence in the applicant's previous reporting on the bail that she was first admitted to by police following the June offending.

32 While this period of remand represents her first time in custody, it would appear on the evidence that the applicant has put her time to good use and has completed a number of courses including healthy living, relapse prevention program, hygienic practices food safety and a certificate II in cleaning.

33 Without a great deal of particularity, it was submitted that some part-time employment will be available to her in the horticulture industry in the event that she is granted bail.

34 The applicant conceded that the case against her is not weak but submitted there are triable issues in both matters and much will depend on the analysis of evidence, which is yet to occur. It was submitted that the drugs seized in the Mitchell matter have not yet been weighed and the spot testing of those drugs has, in some way, been misplaced. The applicant also relied on the fact that no DNA analysis of exhibits has occurred and full briefs of evidence have not yet been served. Those matters, it is accepted, will cause further delay.

35 Turning to the matter of delay and the more unusual circumstances of this application. Since the filing of this application and the affidavit material, the entire community has been overtaken by the eventuality of COVID-19, which the World Health Organisation has declared a pandemic. At the time of hearing this application there were 150 confirmed cases of people infected with this virus in Victoria and 565 cases Australia-wide. At the time of revising this ruling, the nation-wide number has grown in excess of 1,300, with over 230 confirmed cases in Victoria.

36 Dramatic steps have been taken by both the state and federal governments to endeavour to, as they say, 'flatten the curve' in relation to the spread of this virus. On Sunday, 22 March 2020, federal and state governments announced further measures restricting people's activities with a promise that additional measures will be introduced in the near future. It seems clear that there will be significant delays occasioned within the courts as a result of this virus, which may result in lengthy periods of remand.

37 In this Court and the County Court, for example, jury trials have been postponed indefinitely; primarily for the reason to avoid the assembly of jury pools, which require large numbers of people, and which, obviously, create a significant risk of the transmission of the virus from person to person.

38 At least in this Court, other measures will be taken in order to slow the spread of COVID-19, including mechanisms that will hopefully truncate hearings - indeed, hearings such as this - so that they can all be dealt with on one day. Many hearings will be conducted, even within the criminal jurisdiction, without the requirement of the personal attendance of either the accused or counsel.

39 Further, it is unknown whether there have been any instances of COVID-19 in the prison population. As I follow it, as at the time of revising this ruling, Victorian prisons do not have any cases of the virus. However, as Mr McGrath submitted, on behalf of the applicant, in addition to issues of delay, there can be no question that once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate these are matters of speculation to a degree, but the situation is sufficiently urgent to required them to be taken into account. Further bearing in mind that the entire situation may have changed again within one or two weeks.

40 Mr McGrath outlined in his submissions the fact that the applicant is relatively young and healthy, and if the applicant were to be infected by COVID-19, she would be likely to make a recovery. However, in addition to the delay of her case, she would suffer the consequences of a significant lockdown in the prison, which would have substantial effects on her and, no doubt, her relationship with her family, which would be a dramatic development for a person who had not previously been in custody.

41 In the particular circumstances that now prevail within the criminal justice system, the likelihood that the applicant will spend more time on remand than the sentence that may be imposed should she be found guilty of the charges is overwhelmingly likely, as counsel for the respondent conceded.

42 Mr Kibel accepted that the present circumstances change the dynamics of an application such as this quite dramatically. It seemed to me that were this in an ordinary application, there was an argument to be put that the applicant did not establish exceptional circumstances. However, this is not an ordinary application in an ordinary time. Mr Kibel conceded that this was so and that exceptional circumstances were established by the applicant.

43 While I find those matters determinative, as I have previously said, the applicant has also been accepted by the CISP. There have been two CISP reports provided to the Court; one dated 7 February 2020 and then a subsequent report dated 17 March 2020. Those reports make clear that the applicant has been assessed as suitable to receive support and treatment through CISP if granted bail. That would involve alcohol and other drug treatment, mental health support and case management.

44 The applicant also took steps to refer herself to the Western Region Centre Against Sexual Assault ('WestCASA') whilst in custody and has been placed on a waitlist for their Specialist Trauma Service for support concerning family violence experienced in a previous relationship. It was suggested that the trauma caused by that violence may be explanatory of her present offending. If granted bail, she will receive counselling in the community from the WestCASA. I do not propose that be a condition as I am sure the applicant is motivated to pursue that counselling.

45 It should be acknowledged that the respondent made a number of contentions in a helpful outline of submissions, which I will not recite, bearing in mind Mr Kibel's very reasonable concessions.

46 Given the extraordinary circumstances in which we now find ourselves, I have come to the conclusion that an already significant delay will be likely exacerbated by the consequences of COVID-19, and I am therefore satisfied that exceptional circumstances have been established.

47 As to the acceptability of release the applicant on bail, I am also satisfied that the imposition of conditions will ameliorate any risk that is involved in her being released.

48 I will therefore order that the applicant be admitted to bail on her own undertaking and with the following conditions:

1. The applicant is to appear at the Ballarat Magistrates' Court on 8 April 2020 and thereafter as directed by that Court.

2. The applicant is to report to the Officer in Charge, or their nominee, at the Ballarat Police Station every Monday and Friday between the hours of 9 am and 6 pm, subject to a government-imposed lock down, in which case the police will attend the applicant's place of residence to effect the reporting conditions;

3. The applicant is to reside at [redacted], Mount Pleasant, in the State of Victoria ('place of residence') and not to change her address without giving seven days' notice to the informant or their nominee;

4. The applicant is not to be absent from her place of residence between the hours of 10pm and 6am ('curfew hours') each day, and is to present herself at the front door of the place of residence during the curfew hours if and when called upon by a member of Victoria Police to do so;

5. The applicant is to comply with all lawful directions of the Court Integrated Services Program;

6. The applicant is not to leave the state of Victoria;

7. The applicant is not to attend any points of international departure;

8. The applicant is to surrender any passports or other travel documents within 24 hours of release and not apply for others; and

9. The applicant is to appear by video link at this Court on 26 March 2020 at 9:30am for judicial monitoring.

[1] Bail Act 1977 (Vic) s 4 ('Bail Act').

[2] Ibid s 4AA(2).

[3] Ibid s 4A(2).

[4] Re CT [2018] VSC 559 [64] citing Re Sam [2017] VSC 91 [22].

[5] See, eg, Re Logan [2019] VSC 134, Re Aucello [2019] VSC 252, Re Gloury-Hyde [2018] VSC 393, and Re Dukic [2018] VSC 664.

[6] Bail Act s 5AAAA.