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[2025] VSC 599
General information, not legal advice.
Supreme Court of Victoria
2025-09-12
Champion J
Original judgment source is linked above.
CRIMINAL LAW - Application for Bail - Applicant seeking bail in relation to ten offences - Significant criminal history - Family violence - History of childhood trauma and ongoing substance abuse and mental health issues - Physical health issues - Delay - Compelling reason not established - Unacceptable risk established - Bail refused - Bail Act 1977 (Vic) ss 1(B), 3AAA, 4B-4E, 5AAAA.
1 By application dated 15 August 2025, Michael Cvetkovic ('the applicant') applies for a grant of bail from this court.
2 The applicant is a 31‑year‑old man who seeks bail on the following charges:
(a) two charges of making a threat to kill;
(b) contravening a family violence intervention order ('FVIO') by making a threat to kill;
(c) criminal damage;
(d) prohibited person possessing a firearm;
(e) shortening the barrel of the firearm;
(f) possession of a loaded firearm;
(g) possessing cartridge ammunition;
(h) dishonestly handling stolen goods;
(i) possession of methamphetamine; and
(j) trafficking a drug of dependence, namely methamphetamine.
3 The application is supported by the following relevant materials:
(a) an affidavit affirmed by Tammy Wray, solicitor, dated 15 August 2025;
(b) a further affidavit affirmed by Tammy Wray, solicitor, dated 22 August 2025;
(c) a series of Court Integrated Services Program ('CISP') Reports dated 2 May 2025, 17 July 2025, and 2 September 2025, and
(d) a Psychological Assessment report of Sandra Cokorilo dated 17 February 2025.
4 In response, the respondent relies on the Affidavit of Jessica McCartney, solicitor, affirmed on 4 September 2025, with attachments, including an Informant's report authored by Senior Constable Jack Greene.
5 On 24 January 2025, the applicant was arrested, charged, and remanded with respect to the alleged offending. The matter has been the subject of two bail applications, the first being on 24 January 2025, with a subsequent hearing on 24 July 2025. Both applications were refused by different Magistrates on the basis that the compelling reason test was not satisfied.
6 The matter is listed for a contested 2‑day hearing on 30 September 2025 at the Latrobe Valley Magistrates' Court.
7 As discussed below, the applicant suffers from a number of medical conditions. Between 17 January 2025 to his discharge on 22 January 2025, he was an inpatient at the Box Hill Hospital receiving medical treatment. On his discharge, the applicant's mother, Ms Kirsty Verhoeven, collected him and drove him to his father's home in Drouin. At the time of the alleged offending, the applicant resided at this property with his father.
8 Within an hour of his arrival, the applicant began asking his father where his property was, meaning a firearm. In response, his father unscrewed the top of the oven and showed the applicant that his shotgun was inside. The applicant then spent the rest of the day loading and unloading the shotgun, and verbally threatening his father.
9 Neither the applicant nor his father slept for the next two days. During this period, the applicant threw cups, glasses, and plates around the house, denting the kitchen rangehood. He also punched holes in various walls of the house.
10 On 24 January 2025, the applicant asked his father where the rest of the ammunition for the shotgun was. In response, the applicant's father handed him a sock containing two or three 12‑gauge shotgun shells. The applicant took the ammunition, loaded the gun, and began to taunt his father with the firearm.
11 At approximately 9:30am on the same day, AS, an associate of the applicant's father, attended the home. During this visit, he observed the applicant playing with the shotgun, pointing it in the direction of his father, and stating 'I could off you right now'.
12 At approximately lunchtime, the applicant's father threw the firearm outside the house where it landed in the bushes on the front lawn. This enraged the applicant and, after the two walked outside into the front garden, a physical altercation ensued. The applicant pushed his father against the garbage bins and a wrestle continued for several minutes, during which the applicant's father suffered a bruise to his right arm and a scratch to his chest. AS, who had observed the altercation, walked outside to separate the pair.
13 The applicant then picked up the firearm, walked onto the adjacent street and, for approximately two minutes, pointed the firearm into the air whilst yelling. After returning inside the house, the applicant told his father, 'I'm going to kill you, kill the dog, and then kill mum', and subsequently pointed the firearm at his father's head. The applicant's father states that this behaviour continued throughout the day and that his life was threatened on at least 10 to 20 occasions.
14 Due to the applicant's erratic behaviour and increasing threats, his father armed himself with a screwdriver in case he needed to defend himself. He then left the address on foot and called 000 at approximately 7:45pm, informing the operator that the applicant had pointed the shotgun at him and damaged his home and property. During this call, he described the firearm as a double barrelled and double trigger shotgun which had been painted with black shoe polish.
15 Following the 000 call, a Victoria Police Critical Incident Response Team arrived at the property. The applicant was arrested without incident at approximately 10:30pm and transported to Warragul Police Station for the purpose of a recorded interview.
16 During a search of the premises, a sawn-off shotgun loaded with two 12‑gauge cartridges was found covered by a blanket underneath a couch in the lounge room. A further two cartridges were also recovered.
17 A search of the applicant whilst he was in custody revealed a zip‑lock bag containing 0.49 g of a white crystal substance believed to by methamphetamine, and a freezer bag containing a further 4.71 g of the same substances. These items were concealed in the applicant's underwear.
18 The application in this matter is governed by the Bail Act 1977 ('the Act'). It is intended that the Act be applied and interpreted having regard to the guiding principles set out in section 1B(1), including maximising the safety of the community and persons affected by crime to the greatest extent possible; and taking account of the presumption of innocence and the right to liberty.[1]
19 The compelling reason provisions are set out in section 4C of the Act.
20 The applicant has been charged with a Schedule 2 offence, being 'an offence against section 20 of the Crimes Act 1958 (Vic) (threats to kill) that is also a family violence offence'.[2] As such, the court must refuse bail unless, after taking into account the relevant surrounding circumstances in section 3AAA(1) of the Act, it is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[3] It is not disputed between the parties that the compelling reason test applies to this application.
21 The phrase 'compelling reason' is not defined in the Act. The Court of Appeal in Rodgers v The Queen summarised the relevant principles as follows:
(a) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in section 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.
(b) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(c) A compelling reason is one which is forceful and therefore convincing - a reason which is 'difficult to resist'.[4]
22 Even if satisfied that a compelling reason exists, pursuant to section 4E of the Act, the court must still refuse bail if the prosecutor can satisfy it that, having regard to the surrounding circumstances, there is an unacceptable risk that the applicant, if released on bail:
(a) would endanger the safety and welfare of any person, commit a Schedule 1 or 2 offence, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with conditions of bail; and
(b) that conditions of bail cannot mitigate the risk so that it is not unacceptable.[5]
23 Pursuant to section 5AAAA of the Act, the court must make inquiries as to whether there is in force:
(a) an FVIO made against the applicant;
(b) a family violence safety notice issued against the applicant; or
(c) a recognised DVO made against the applicant.
24 Where the applicant is charged with a family violence offence, the court must consider:
(a) whether, if the applicant were released on bail, there would be a risk that the applicant would commit family violence; and
(b) whether that risk could be mitigated by:
(i) the imposition of a condition; or
(ii) the making of an FVIO.
25 There is currently in force against the applicant a full FVIO for the protection of Mr Cvetkovic Sr - this is in place until 17 February 2026.
26 There is no family violence safety notice or order under the National Domestic Violence Order Scheme in force against the applicant.
27 Whether there is a risk that the applicant would commit family violence if released on bail, and whether that risk could be mitigated, is addressed below.
28 The applicant has a significant criminal history, with relevant matters including possession of prohibited weapons and cartridge ammunition, contravening an FVIO, recklessly causing injury, reckless conduct endangering serious injury, trafficking and possession of illicit drugs, unlawful assault, driving offences, thefts and deceptions, committing an offence whilst on bail, resisting emergency workers, and contravening a community correction order.
29 Notably, however, the last court outcome recorded was in 2021.
30 The applicant relies on a combination of factors in support of the argument that he has satisfied the compelling reason test. These include the following.
31 The applicant contends that the prosecution case is weak, being a circumstantial case relying on evidence given by the applicant's father, with whom the applicant has a history of conflict. The applicant argued that Mr Cvetkovic Sr had credibility issues arising out of his previous involvement with the Outlaws motorcycle club and a conviction for drug driving in 2023.
32 Further, the applicant submits that the prosecution case is also weakened by the fact that the alleged witness, Mr Stevens, has refused to provide a statement to Victoria Police. The prosecution is thus proceeding on the basis that Mr Stevens will answer a summons and provide viva voce evidence without having previously made a statement. Credibility issues were also raised in relation to Mr Stevens who, the applicant submitted, has a conviction for being found in possession illegally of a handgun in 2015.
33 The applicant argues that the prosecution case faces significant evidentiary challenges in that:
The respondent accepted that the formal statement in relation to the DNA was unlikely to be prepared in time for the contested hearing on 30 September 2025, and that the prosecution would, at that time, be proceeding in the absence of the DNA statement.
34 The applicant submits that there are several treatment and bail support services available to him.
35 The applicant's mother, Ms Verhoeven, can provide a surety of $10,000 and maintains that, should the applicant be granted bail, he will reside at her home in Drouin.
36 The applicant has been assessed by CISP in July 2025 and, most recently on 2 September 2025, has been recommended for case management. Further, a previous assessment in May 2025 also found the applicant suitable for case management, and he successfully completed a CISP episode in 2017.
37 The most recent CISP assessor noted that, should the applicant maintain his treatment readiness, he will be referred to the Australian Community Support Organisation (ACSO FACT) for a forensic alcohol and drug assessment where, if recommended, standard counselling will be made available.
38 The applicant has also agreed to see his general practitioner for ongoing mental health management, and will be supported should he need to navigate any relevant mental health referrals. Ms Verhoeven expressed a commitment to transporting the applicant to and from all medical appointments if bail were to be granted.
39 In his submissions, the applicant makes reference to the surrounding circumstances as defined in section 3AAA of the Act, which must be considered by the Court. The applicant draws the Court's attention to his personal circumstances, background, and special vulnerabilities.
40 The applicant was born to parents who had an unstable relationship. The home that he shared with his father was traumatic due to ongoing violent and emotional abuse, which was fuelled by his father's ongoing drug and alcohol abuse. It is submitted that many of the applicant's issues have arisen due to the impact of trauma sustained as a result of this abuse.
41 The applicant maintains that he began binge drinking at age 14, and did not cease this behaviour until he turned 18.
42 At age 15, the applicant left the family home due to his father's abuse. He briefly returned at age 17, but left again after purchasing his own home with funds obtained from a TAC payment.
43 Between the ages of 15 and 21, the applicant maintains that he smoked methamphetamine every second day - a pattern that only ceased when he voluntarily attended a rehabilitation program in 2015. After this period, the applicant relapsed to smoking methamphetamine on a fortnightly basis. In 2022, the applicant again ceased smoking, and states that he has only smoked methamphetamine two times in the last 12 months.
44 Also relevant to the applicant's personal circumstances were his submissions regarding the ill‑health of his 84‑year‑old grandmother, with whom he was said to have a close, loving relationship. Ms Verhoeven gave evidence that the applicant's grandmother was, at that time, very frail and at risk of dying in hospital following emergency bowel surgery, and that it would be 'awful' for the applicant if he was unable to see her.
45 The applicant suffers from a range of physical illnesses and injuries.
46 When the applicant was 11 years old, he received crush fractures of the thoracic spine following a motorcycle accident in which he was on the back of his father's bike.
47 When the applicant was 23 years old, he was involved in a car accident whilst in a car being driven by his father, who was intoxicated on drugs or alcohol at the time. In this accident, the applicant sustained a fractured ankle and required surgery to insert pins to hold the ankle together. As a result, the ankle is now fused and the applicant walks with a limp.
48 As a consequence of these accidents, the applicant suffers from chronic pain which has hindered his ability to find long‑term employment. He has been prescribed pregabalin, diazepam, clonazepam, and tapentadol to treat the chronic pain. However, the applicant submitted that, despite this medication, the pain remains so severe that he has genuinely considered limb amputation.
49 When the applicant was 26 years old, he was diagnosed with stage 4 non‑Hodgkin's lymphoma. He received aggressive chemotherapy, and has since been in remission for over one year.
50 On 17 January 2025, the applicant presented to Box Hill Hospital emergency department. Staff later reported on ward rounds that he was suffering from:
51 Whilst in hospital, the applicant was diagnosed with Miller Fisher Syndrome - a neurological disorder that causes muscle weakness.
52 Prior to discharge, he underwent an Occupational Therapy Assessment and was found to have right upper limb ataxia - a lack of muscle co‑ordination that impairs balance and reduces mobility. He was therefore discharged on 22 January 2025 with the requirement that he use a shower seat when showering, attend a neurology assessment in three months' time, and complete an upper right limb home exercise program.
53 Whilst in custody, the applicant has not had any assessments or treatment for his medical diagnoses. In relation to the stage 4 non‑Hodgkin's lymphoma, the applicant submitted that he requires ongoing monitoring to assess whether any symptoms, such as night sweats or significant weight loss, have returned, and that such a return would require urgent medical attention. The applicant further submitted that Professor Grigg, his haematologist, was of the opinion that his life would be in danger if he experienced a recurrence of symptoms that was not detected due to inadequate monitoring.
54 Professor Grigg has, on one occasion, attempted to communicate this fact to the prison by giving the applicant's mother a letter and directing her to 'pass it on to the prison authorities'. The applicant submits that such information being passed in a letter through an intermediary demonstrates how ill‑equipped the prison system is for someone with this level of potentially life‑threatening injury, and is a compelling reason by itself. It is unclear whether alternative methods of communication were attempted on this point.
55 The applicant submits that he suffers from mental health conditions that impair his ability to regulate emotions, make rational decisions, and manage stress.
56 Whilst in custody, the applicant was assessed by Dr Sandra Cokorilo who determined that he presented with Generalised Anxiety Disorder, Persistent Depressive Disorder, and Major Depressive Disorder.
57 In her report, Dr Cokorilo noted that 'in the light of his history of significant medical conditions ... incarceration likely presents a substantial risk to his physical health as well as his psychological stability'. The applicant submits that the Court must consider the physical injuries and mental conditions detailed in Dr Cokorilo's report.
58 As to the matter of unacceptable risk, the applicant addressed the risk factors alleged by the prosecution, and submitted that the level of risk in this matter is acceptable.
59 In response to the prosecution's submission that the applicant poses an unacceptable risk to the safety or welfare of any person, the applicant raised the fact that there is currently a full FVIO in place until 17 February 2026 protecting Mr Cvetkovic Sr.
60 The applicant submitted that he has come to the realisation that his life will not proceed in the right direction while he is in contact with his father. This realisation, as well as changes in the applicant's life such as his ceasing to use drugs, were said to evince his commitment to complying with the FVIO.
Risk of interfering with witnesses or obstructing the course of justice
61 In response to the prosecution's submission that the applicant poses an unacceptable risk of interfering with a witness or obstructing the course of justice, the applicant submitted that he has no history of attempting to pervert the course of justice or harassing witnesses. Moreover, the applicant noted that it is not alleged that he has attempted to contact the complainant.
62 The applicant also submitted that his proposed bail address is over one kilometre from his father's address, and that he does not need to pass his father's property in order to catch public transport or enter the Drouin town centre.
63 The applicant concedes that he has a history of breaching court orders, but submits that these breaches occurred within the broader context of his past substance use and antisocial influences rather than necessarily indicating a persistent disregard for legal authority.
64 As identified by Dr Cokorilo in her report, the applicant:
65 These features, the applicant submits, suggest increased prosocial orientation and are suggestive of a period of stabilisation.
66 The applicant argues that the available bail conditions that the Court may impose, including a curfew, mandatory reporting to Warragul Police Station, prohibition of contact with prosecution witnesses, compliance with CISP, and compliance with the FVIO, render any risk an acceptable risk.
67 The applicant's mother, Ms Verhoeven, gave evidence that she would 'absolutely' be prepared to call police if she discovered that the applicant was acting in breach of any bail conditions.
68 The respondent submits that, for the following reasons, the applicant has not discharged the burden of satisfying the Court as to the existence of a compelling reason that justifies the grant of bail.
69 Noting that the applicant submitted that the prosecution case is weak, in large part because the alleged witness has refused to provide a statement to Victoria Police, the respondent submitted that the witness has been subpoenaed and has indicated the evidence he will provide at court.
70 The respondent argued that the prosecution case is strong, and highlighted a variety of evidence including:
However, the prosecution conceded that the formal statement in relation to the DNA is unlikely to be prepared in time for the contested hearing on 30 September 2025.
71 Observing that the applicant argues that he has been found suitable by CISP and is recommended for case management, the respondent submits that the CISP report indicates that the applicant relapsed into drug use following the Residential Rehabilitation Program, notwithstanding the fact that he had support for methadone.
72 The respondent further submits that the CISP report is outdated and does not propose how the applicant's methamphetamine addiction or mental health issues will be sufficiently managed if he is placed on bail. Further, given that a contested hearing is listed for 30 September 2025, the respondent's position is that there is very little that CISP could do in the interim three weeks, and that any program would thus be of limited value to the applicant.
73 As to the applicant's mother's evidence that, in addition to providing a surety, she would permit the applicant to reside at her home for as long as bail might last and supervise him to ensure that he complied with any bail conditions, the respondent argued that, even with Ms Verhoeven also residing in the home, the level of supervision would be inadequate.
74 As to unacceptable risk, the respondent submitted that the applicant, if released on bail, would pose an unacceptable risk in the following ways.
75 The respondent argued that the applicant would, if released, pose an unacceptable risk of committing a Schedule 2 offence, namely family violence offending.
76 The respondent noted that the applicant is currently remanded for offending which includes a Schedule 2 offence (namely, making a threat to kill in a family violence context) and that he has a history of family violence perpetrated against his parents. This, it was argued, presents an unacceptable risk that the applicant will commit the same or similar offending.
77 The respondent submits that the applicant would, if released, pose an unacceptable risk of endangering the safety or welfare of other persons. This argument, the respondent argues, is supported by the fact that the applicant:
78 The respondent submits that these considerations demonstrate that the applicant poses a significant risk to his parents, particularly his father.
Interfering with a witness or obstructing the course of justice
79 The respondent submits that the applicant would, if released, pose an unacceptable risk of interfering with a witness or obstructing the course of justice.
80 The respondent points to the fact that the applicant has two prior convictions of breaching the FVIO that was in place to protect his father, and that the applicant proposes to reside within walking distance of his father.
Failure to surrender into custody in accordance with bail conditions
81 The respondent submits that the applicant would, if released, pose an unacceptable risk of failing to surrender into custody in accordance with any bail conditions. This is demonstrated, the respondent argues, by the fact that the applicant has been convicted for failing to answer bail on two occasions, and has a propensity to breach court dispositions.
82 The respondent argues that the applicant poses a significant risk, and that the bail conditions proposed by the applicant would not render this risk acceptable.
83 With respect to the compelling reason test, the applicant relies on a combination of circumstances in order to argue that the test has been satisfied. As explained, it is common ground between the parties that the compelling reason test applies to this application. I shall apply the law as set out above.
84 Further, as part of the surrounding circumstances, I am required to take into account, pursuant to section 3AAA(1)(f) of the Act, that there is a current, active and full FVIO against the applicant, where his father is the affected family member.
85 First, in respect of the strength of the prosecution case, the applicant argues the case brought against him is weak. On the other hand, the respondent argues that the prosecution case is strong. In support of this contention, the respondent cited the forensic evidence and indicated that, although a DNA statement was unlikely to be ready by 30 September 2025, the statement had been sought and would comprise part of the prosecution case. The informant, Mr Green, gave evidence that the relevant DNA expert has provided a preliminary report in the form of a statement. However, I note that after reconsidering its position, the respondent will not rely on any DNA evidence at the hearing.
86 The respondent also referred to the two witnesses who have been summonsed to appear at the contested hearing - Mr Cvetkovic Sr and Mr Stevens. Under cross‑examination, the informant, Mr Green, gave evidence that Mr Cvetkovic Sr 'has always been willing to provide evidence at court'. Mr Green also gave evidence that, despite not having made a statement to police, Mr Stevens has 'spoken to' police 'about the evidence that he intends to give'.
87 In my opinion, the applicant's argument fails to recognise that, quite apart from the case being partly a circumstantial one, there is direct evidence of the applicant's alleged offending, namely that provided by his father, albeit appropriate to acknowledge that there appear to be credibility and reliability issues to be resolved.
88 In other words, there are said to be triable issues. Nevertheless, in my judgment, it cannot be said the case against the applicant is inherently weak. Rather, it appears to me to be reasonably arguable.
89 As to eventual disposition, the applicant argues that, with particular reference to whether the applicant would be sentenced to a term of imprisonment if he is convicted of all or any of the charged offences, if bail is refused, the time he has spent on remand may exceed any term of imprisonment. Again, it is not possible to say with any degree of certainty what the outcome of the prosecution case will be or what offending the applicant may be found guilty of having committed and, as a result, what his sentencing outcome might be. In this respect, I am of the opinion that the allegations should be regarded as serious, and a sentence of imprisonment appears to be open in all the circumstances.
90 It is not the role of this Court to make detailed findings about the strengths or weaknesses of either of the parties' cases. This will be a matter for the trial Magistrate. On the other hand, as it cannot be said the prosecution case is inherently weak, the best that can be said is that all these matters are well within the province of the fact finding tribunal. Further, in my opinion, it is not possible to safely conclude that, should the applicant be found guilty of the charged offences, he would receive a sentencing outcome less than the time served on remand.
91 In short, it is submitted that, when all of the matters put before the Court, as discussed above, are distilled and considered appropriately, the compelling reason test has been satisfied. In making an assessment about this issue, I have taken into account all of the personal circumstances of the applicant including his health issues and proposed support by CISP.
92 With respect to the residence proposed if the applicant is granted bail, the prosecution points out that the applicant's home environment is unstable and volatile. The prosecution argues that the proposal the applicant would reside with his mother is 'problematic' given a previous incident of family violence against her; that there remains a risk of committing a Schedule 2 offence, or endangering the safety or welfare of other persons; that the applicant has contravened court imposed orders in the past; that the current allegations and his prior offending involves the use of firearms and prohibited weapons; and that the applicant abuses drugs to the point where he demonstrates outbursts of violence.
93 Finally, as to the question of delay, the matter is listed for a contested 2‑day hearing on 30 September 2025 at the Latrobe Valley Magistrates' Court, and should be expected to be resolved close to, if not at, the conclusion of the hearing. Resolution of the matters is close, being approximately three weeks from this date. Accordingly, undue delay before the applicant's matters are resolved is, in my opinion, not a significant factor in weighing the matters requiring consideration. As well, it is hard to conclude that the various support features offered by the CISP program would have sufficient time to be of practical support to the applicant in any event.
94 Having considered all the matters put forward, in all the circumstances, I am not prepared to accept that the compelling reason test is satisfied by the applicant. In coming to this conclusion, I have taken into account the serious nature of the allegations made against the applicant, and that the allegations involve matters concerning family violence.
96 Having reached the conclusion that the compelling reason test is not satisfied, and that the application must be dismissed, I indicate that had I concluded the test was satisfied, I would nevertheless have dismissed the application on the basis that the respondent had satisfied me that the applicant is an unacceptable risk as defined by the Act.
97 The applicant has a poor criminal record which appears to have begun in 2013 and continued over a number of years that followed. Despite the fact that the applicant would be supported by the CISP program, it is clear from the applicant's considerable previous history, involving instances of reckless and threatening behaviour; examples of actual violence, combined with his alleged erratic behaviour whilst in possession of and using the loaded sawn‑off shotgun to threaten to kill and taunt his father; as well as his behaviour in the public place of a street, waving the loaded firearm around; together demonstrate to me that the applicant poses a risk to the wider community, as well as his father. In my opinion, in all the circumstances, the risk is an unacceptable one, and this has been established by the respondent.
[4] [2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA).