Re De Camillis [2020] VSC 761 (17 November 2020)

1 The applicant applies for bail on charges laid against him by the informant Senior Constable Talissa Croxford of intentionally causing serious injury (two charges), recklessly causing injury (two charges), aggravated assault of a female, common assault, assault with a weapon (two charges), threat to kill, unlawful assault, unlicensed driving, committing an indictable offence whilst on bail (two charges), contravening a conduct condition of bail (three charges) and false imprisonment.

2 It is agreed between the parties that because the applicant is accused of Schedule 2 offences under the Bail Act 1977 ('the Act') committed while he was on bail for a Schedule 2 offence, bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.

3 The dates of the above alleged offences were 4 and 8 June 2020. The applicant was arrested and charged on 8 June 2020. He unsuccessfully applied for bail in the Dandenong Magistrates' Court on 10 June 2020 and 30 September 2020. Bail was refused on both occasions because the learned Magistrate was satisfied that the applicant posed an unacceptable risk.

Pending matters at the time of the alleged offences

Charges: Theft of a motor vehicle, handling stolen goods, theft , attempted theft , assault with a weapon

4 On 25 July 2019, the applicant allegedly entered a carport at a residence in Parkdale in a stolen vehicle and stole some copper piping. The occupant of the residence confronted the applicant, who threatened to kill him and attempted to slash him three times with a knife. After the confrontation, the applicant returned to the stolen vehicle and drove away. The complainant took a photograph of the vehicle as it departed. It was confirmed that the vehicle bore stolen number plates. The applicant was charged on 6 August 2019 and bailed by police. He was subject to this grant of bail at the time of the current offending. The matter is next listed on 18 January 2021 in the Moorabbin Magistrates' Court for mention.

Charges: Handling stolen goods, obtaining property by deception (three charges), committing an indictable offence whilst on bail

5 On 28 November 2019, the applicant allegedly came into possession of a stolen credit card which had been unknowingly dropped by the victim and given to the applicant by an associate. The applicant utilised the card to make three purchases at two stores. He was charged on 11 December 2019 and was granted bail on 13 February 2020. He was subject to this grant of bail at the time of the current offending. The matter resolved on 12 August 2020 in the Moorabbin Assessment and Referral Court. He was sentenced to a total term of 65 days' imprisonment reckoned as time already served.

6 On 28 August 2019, the applicant is alleged to have stolen an EFTPOS machine from the Ace Sporting Club in Keysborough and executed four refunds from the machine totalling $2,976. The applicant was charged on summons on 1 June 2020 and was subject to this summons at the time of the current offending. The matter is next listed on 23 April 2021.

Charges: Driving whilst disqualified, driving a motor vehicle without an interlock device fitted, careless driving

7 On 22 November 2019, the applicant is alleged to have hit another vehicle from behind. He explained to the complainant that he did not have a driver's licence and was not covered by his mother's insurance policy, offering instead to pay for the damage. The complainant has not been compensated. The applicant was disqualified from driving at the time of the incident and the vehicle did not have the required interlock device fitted. He was charged on summons on 25 April 2020 and was subject to this summons at the time of the current offending. The matter is next listed on 10 December 2020.

8 On 15 March 2020, the applicant was intercepted by the complainants out the front of Dinsan Nursery after its security system alerted them to a disturbance within the nursery's grounds. The applicant was in possession of a set of pliers and a torch when arrested by police who arrived on the scene shortly after. A search of the perimeter of the nursery identified a hole cut in the fence, with a garden statue, two pots and two plants located outside the hole. The applicant was conveyed to hospital as he experienced a psychiatric episode. He was charged on summons on 5 July 2020. The matter is next listed on 10 December 2020.

9 The applicant was in a relationship with the complainant, TD, for around eight months prior to the alleged offending.

10 On 3 June 2020, the complainant visited her friend Nikki and told her that she had recently ended her relationship with the applicant. The applicant arrived at Nikki's house shortly thereafter and the complainant left in a taxi with him. Whilst in the taxi, the applicant became angry about the complainant spending time with one of her male friends, MB, apparently suspecting that she had been sleeping with him.

11 At about 6am on 4 June 2020, the applicant and complainant attended his mother's house in Mulgrave, but she told them to leave. The complainant walked to her home a short distance away.

12 Later that morning, the applicant collected the complainant from her house in a taxi and they re-attended Nikki's house to borrow a vehicle for the day. At 12.30pm, the couple left in the borrowed vehicle to pawn a bicycle. Later on, while they were driving in the direction of the applicant's father's house, the applicant became increasingly angry. He accused her of cheating on him, which she denied. The applicant at one point stated, 'You didn't think you were going to get away with this, did you?' The applicant allegedly pulled out a pocket knife resembling a Swiss Army knife, and with the knife in his lap as he drove, flicked the blade out and continued to question the complainant, asking her to admit that she had taken him 'for a goose'. He said, 'Be careful how you answer', as she pleaded with him to put the knife away. He lunged at her repeatedly with the knife, pulling back before contacting her. The complainant feared that she was going to be stabbed. She raised her bag to protect herself, and then the applicant stabbed her to the right thigh, piercing her jeans and causing an injury which commenced to bleed, whilst saying to her, 'You're not going to get away with this'. In pain and shock, the complainant started to cry. The applicant then said to her, 'I don't care if I go to jail. I'll come out. I don't care if 30 years pass, I'll come out and kill you'. As she continued to plead for him to stop, he responded by saying, 'Next one's going in your neck'.

13 The applicant drove the vehicle around the back streets of Endeavour Hills for a time, at one point asking the complainant, 'Why do you think you are here for? Do you think you'll get out alive?' He eventually drove to his father's house and parked in the street at the front of the house. As they walked towards the house he demanded that the complainant cover her leg wound and answer questions properly, threatening to stab her again if she did not. She limped towards the house which annoyed the applicant to the point that he allegedly punched her to the right side of her face, causing a black right eye.

14 Inside the house, the applicant's father, PD, tried to calm him down. PD's partner GP was also present. She observed the complainant to be upset and in tears on her arrival, and the applicant to be angry. The complainant was trying to distance herself from the applicant by hiding behind her father. The applicant repeatedly asked her to remove her jeans, and said that she could not leave until she did so. Eventually she did go into another room and change from her jeans into some tracksuit pants he had given her, giving the jeans to the applicant. Eventually, after some delay, the complainant ended up getting a taxi, travelling to the home of her friend MB.

15 MB observed the complainant to be limping. She disclosed what had taken place, and showed him a cut she had to her thigh. He also noticed bruising to her face. At 5.53pm, the complainant sent a text message disclosing the incident to her mother, together with photographs of her injuries. She also showed the injuries to her parents the next day when she arrived home.

16 On 7 June 2020, the applicant and the complainant began conversing again and decided to rent a car, as the applicant wanted to go to Moama to play the poker machines. The complainant hired the car in her name and the complainant and the applicant drove to Moama arriving at the Moama RSL at approximately 9pm. They spent time gambling on the poker machines, the applicant losing $200. He became angry about that fact and the cost of the hire car.

17 The applicant began driving home, refusing to use a navigation system, and acting erratically towards the complainant. He eventually pulled the car over on the side of a gravel road and allegedly grabbed a screwdriver from under his seat. The complainant jumped out of the car and begged the applicant to put the item away. He complied and the complainant re-entered the car in the back seat.

18 The applicant continued to argue with the complainant about money and her alleged infidelity. He reached back to where the complainant was sitting in the back seat and allegedly hit her with a wine bottle to her forehead, before punching her to the right eye. He also broke the screen on her phone. He then climbed into the back seat and punched her multiple times to her head and arms, while she cowered trying to protect herself, believing she would be killed.

19 By the time this incident had ended, it was 4am on 8 June 2020. The applicant, on observing the swelling to the complainant's face, asked 'why'd you make me do that for?' His demeanour changed and he began apologising to her and tried to cuddle her. The pair fell asleep in the vehicle, with the complainant waking up at around 7am to the applicant driving in circles in an area near Bendigo. She fell back asleep and woke up at around 9.30am near Melbourne Airport on the Tullamarine Freeway. The pair drove back to his mother's house in Mulgrave, where the complainant managed to flee in the hire car to a friend's house before attending at the Springvale police station.

20 A constable of police who attended to the complainant inside the police station noticed that she had a large bump on her forehead and a bruised and blackened right eye. He immediately requested the attendance of an ambulance. The complainant was conveyed to hospital for treatment and spoke to members of the Victoria Police Dandenong Family Violence Unit, but refused to sign police notes of the conversation due to fear. She provided a written statement on 15 July 2020.

21 On 9 June 2020, the applicant was located by police at his mother's house. During his police interview, he admitted to grabbing the complainant once on her arm causing bruising, and to driving while unlicensed, but he otherwise denied the allegations including stabbing her.

23 His parents were involved in a drawn out separation during his childhood, which the applicant states left him without any guidance. He maintains contact with both of his parents, and he also has two older sisters with whom he is close.

24 The applicant finished his high school education in year 11 after he was expelled from the school for consuming alcohol at a school sports event. He reports using illicit drugs, primarily cannabis and MDMA, and abusing alcohol, in his teenage years. At age 22, the applicant commenced using methylamphetamine and GHB, escalating to using 1.7 grams of methylamphetamine per day between 27 and 34 years of age.

25 The applicant has formal diagnoses of stimulant use disorder, anxiety and depression. He has previously engaged in treatment for his drug addiction while subject to various court orders, with varying results.

26 The applicant has been intermittently employed over the last ten years. Prior to that he worked for a time in landscaping.

27 The applicant has a criminal record spanning 36 pages. In addition, there is a ten page certificate under s 84(1) of the Road Safety Act 1986 setting out a large number of motor vehicle related offences including numerous for drink and drug driving, driving whilst disqualified, breaching interlock conditions, and careless driving. Some of these convictions are contained in the criminal record. Others are not. The criminal history of the applicant encompasses a significant history of driving, dishonesty, property damage and drug use and possession offences. Relevantly, he has also been dealt with in the past for assault and other violence or weapons-related offending including recklessly causing injury (2018), possessing a controlled weapon (2014 and 2018), intentionally causing injury (2011), unlawful assault (2016, 2013), and making threats to kill (2004). The circumstances of that offending is set out in the nominal informant's report.[1]

28 Further, the applicant has a history of breaching court orders as follows:

• contravening a community correction order ('CCO') in 2018 (two charges), 2017 (two charges), 2016, 2015 (two charges), 2014 and 2013;

• contravening a family violence intervention order ('FVIO') in 2016 (two charges), 2015 (two charges), 2014 (two charges) and 2013;

• contravening a suspended sentence order in 2015 (two charges);

• breaching a drug treatment order in 2018, which resulted in the order being cancelled;

• committing an indictable offence whilst on bail in 2020 and 2018 (five charges); and

• contravening a conduct condition of bail in 2018 (two charges).

29 Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.

30 Section 4 of the Act provides:

A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.

31 Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 2 offence alleged to have been committed when he or she was on bail for any Schedule 1 or Schedule 2 offence, as is the case here.[2] Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[3] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[4], including, but not limited to, those prescribed in s 3AAA(1) of the Act.

32 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.

33 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 might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.

34 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[5] stated the relevant principle as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[6]

35 It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]

36 Mr Richter for the applicant, in his written and oral submissions, relied on a combination of matters in proof of the existence of exceptional circumstances, and in resisting the prosecution contention as to unacceptable risk. They were as follows:

(a) The availability of residential rehabilitation in the context of the applicant's long term drug addiction. Mr Richter described this as the 'centrepiece' of the application in circumstances where it was submitted that it was plain that all of the prior offending of the applicant was 'plainly the result of drug induced behaviour'.[8] Evidence was led from Ms Maria Hutchison, the CEO of a residential treatment facility in Shepparton called The Cottage. She described the facility and the services it offered. The applicant has been assessed as suitable for admission into the facility. Mr Richter submitted that the treatment on offer was fundamentally different from any form of drug treatment he has received in the past, involving the intensive monitoring and engagement that only a residential program can provide. He submitted that there would only be a 'very small chance'[9] that the applicant would breach the requirements of The Cottage. He described the offer of residential treatment as being 'an excellent opportunity for [the applicant] and provides a good chance of success'.[10]

(b) The high level of compliance by the applicant with CISP[11] in the recent past. Mr Richter relied on a series of CISP reports exhibited to the affidavit in support of the contention that the applicant had gone to every appointment required of him in the period leading up to the index offending, and had not offended during that period, showing, he submitted, that he had an inclination to reform himself, which he was able to pursue as long as there were adequate supports in place. The level of supports were he to be admitted to The Cottage would be far more extensive.

(c) The availability of a surety of $25,000 from his mother.

(d) The existence of a full non-contact FVIO protecting the complainant.

(e) The availability of stable accommodation (if necessary) after the residential rehabilitation program. This is indicative of the family support available to the applicant, it was submitted. What is planned is that if bailed, the applicant would remain at The Cottage until the contested hearing, an extended stay there being possible according to Ms Hutchison, but in the event that the applicant needed to leave there before his case was heard, he could live with either his mother or his father.

(f) Delay. Recent enquiries by the prosecution have indicated that it is expected there would be a delay of three to four months from the time of the next mention until the contested hearing. The applicant has been in custody since his arrest on 8 June 2020, meaning that on those estimates, he would have been in custody for a period of the order of ten months by the time of the hearing, a significant period.

(g) The onerous nature of conditions in custody due to COVID-19. Mr Richter referred to the 'generic' concerns that are well known, and pointed to specific issues relevant to the applicant. He went through a 14 day period of quarantine after his admission into custody, an onerous and isolating experience in itself. In addition, as well as being denied direct family contact, he spends half of every day in his cell, longer than the normal period.

(h) The depression and anxiety suffered by the applicant. Mr Richter relied on the report of a clinical psychologist, Carla Lechner, which was exhibited to the affidavit in support. Ms Lechner diagnosed the applicant with stimulant use disorder, major depressive disorder and generalised anxiety disorder with panic attacks. These were significant diagnoses, submitted Mr Richter, making the applicant a vulnerable person in the terms of s 3AAA(1)(h) of the Act, and making the onerous conditions due to COVID-19 all the more impactful for him.

(i) The strength of the prosecution case. Mr Richter did not assert that the case is a weak one, but nor, he submitted, should it be considered to be strong. It is a word-on-word case where the complainant's credibility would be in dispute.

(j) The seriousness of the offending. The fact that the charges were launched and remain in the summary stream means that the offences cannot be viewed as being at the serious end of the spectrum for offences of this nature. Mr Richter, however, conceded that the allegations are serious, and that if they are made out, a term of imprisonment would result.

(k) The risk that the applicant would spend more time on remand than required to serve under any sentence passed should he be found guilty.

(l) The fact that any risk posed by the applicant would be substantially ameliorated by the other factors, including by the provision of a surety.

37 Turning to the question of risk, Mr Richter relied on the above matters, and submitted that the charges pending at the time of the current offending illustrate the fact that the prior criminal history of the applicant is overwhelmingly connected to his drug addiction. Although concerning, the current charges are not reflective of his usual offending. The most probable reoffending would be 'petty, low-level property-focussed, drug-motivated dishonesty and driving'.[12]

38 The most concerning possible offending would be any further offending against the complainant. This would be unlikely. The applicant has shown an intention to rehabilitate himself. If his drug use is controlled, as it would be in The Cottage, he would be unlikely to reoffend. Mr Richter submitted that the applicant would be unlikely to be inclined to leave the treatment premises unless he was first substance-affected, which would not happen unless he accessed drugs within The Cottage. There would be an unlikely concatenation of events required before he would be likely to leave the premises and reoffend. There would be checks and balances in place to prevent that.

39 Mr Murphy, in his oral submissions, fairly conceded at the outset that the material advanced by the applicant on the application may be sufficient to make out exceptional circumstances,[13] but submitted that the risks of absconding and further offending he poses are such that he would remain an unacceptable risk, no matter what conditions of bail may be imposed.

40 Mr Murphy submitted that the offending alleged is serious, and that the cumulative effect of the circumstantial evidence on the most serious charges is such that the case has strong prospects of success.

41 Mr Murphy emphasised the seriousness of the offences for which the applicant was on bail at the time of the current alleged offending. He disputed the contention that because the applicant has been a long-term drug addict, all of his offending during that period could be directly attributable to that drug use. Nor was it accepted that because the applicant had not offended during the period of the CISP reports, this was necessarily because of the counselling that he had received. There were, after all, other periods of his life when the applicant had not offended and had not been receiving counselling. In any event, compliance with the CISP appointments was by telephone attendance only.

42 In assessing the likelihood of the applicant complying with the potentially onerous conditions at The Cottage, the Court should have regard to the overall appearance of the applicant's criminal history. This did not make encouraging reading. The nominal informant set out in his report at [111] a summary of the many contraventions by the applicant over the last seven years of CCOs, FVIOs, suspended sentence orders, grants of bail, and drug treatment orders. This conduct of the applicant over many years had shown a 'pattern of conduct of non-compliance'.[14] The supposedly genuine desire of the applicant to rehabilitate himself as indicated in the interview he had with Ms Hutchison should be viewed in light of his proven previous conduct. So, too, should the prospects of the applicant abiding by the strictures of The Cottage and a grant of bail be assessed against the larger backdrop of the applicant's long criminal history.

43 In respect of the previous bail history of the applicant, over the past three years, he has contravened conditions of bail and committed indictable offences whilst on bail on six occasions.

44 Mr Murphy pointed to the graphic threat uttered to the complainant as raising particular concerns in this case, in light of his criminal history.

45 The applicant has been afforded many opportunities in the past to combat his drug addiction, and has not taken advantage of them. As recently as at the start of the period of the CISP reports, he expressed a desire to be free of alcohol and drugs, and yet the current offending allegedly occurred in a drug context. The applicant has a proven track history of making the choice to continue to use drugs of dependence and alcohol, leading to further offending. There is no reason to suppose anything would be different now.

46 Mr Murphy pointed to the applicant's significant history of family violence related behaviour, as shown in his criminal history and as outlined in the nominal informant's report at [84] to [105]. There was nothing proposed to address the family violence risks posed by the applicant. There is no reason to suppose that the use of alcohol and drugs has been the sole or even the main reason for the repeated family violence offending of the applicant over the years.

47 In the circumstances, submitted Mr Murphy, the Court could not have confidence that the applicant would have the motivation or ability to remain at The Cottage and complete the program. Should he abscond, there would be a real likelihood based on his past behaviour and lack of compliance with court orders that he would attempt to contact the complainant and commit further family violence offences.

48 As noted already, the concession made by Mr Murphy in respect of exceptional circumstances was a very fair one. That concession, of course, as acknowledged by Mr Richter, does not absolve me of the responsibility of considering all of the circumstances of this case, and deciding for myself whether the applicant has discharged the onus resting on him of proving the existence of exceptional circumstances that justify the grant of bail.

49 A sensible starting point in that task, albeit that there is no required order for the consideration of the various circumstances in any case under s 3AAA, is the seriousness of the offending. In this case, notwithstanding the fact that this prosecution was launched and remains in the summary stream, it is clear enough that the offending alleged is quite serious. In the context of an ongoing intimate relationship, and against the background of a concerning history of family violence by the applicant against a previous domestic partner and a number of his family members, it is alleged that the applicant, in seeming jealous anger, carried out a number of attacks upon his partner accompanied in some cases by graphic and frightening threats and sometimes with the use of weapons. At one point, it is alleged that he stabbed her to the leg with a knife, before threatening to kill her, no matter how long it took. The second bout of offending alleges conduct drawn out over some hours. As I have already said, the offending alleged is serious.

50 As for the strength of the prosecution case, Mr Richter did not assert the case is weak, and rightly so. In connection with the first bout of alleged offending, in which the applicant is, inter alia, charged with stabbing the complainant, she was seen to be in a scared and upset state shortly after the event, at which time the applicant was heard to repeatedly ask her to remove her jeans, which she has indicated were damaged by the penetration of the knife. The cut to her leg was observed shortly afterwards by her friend MB. It seems to me that there will be a good deal of evidence which may tend to support the account of the complainant in respect of these allegations. As for the later offending, again, there were physical signs of injury to the complainant, consistent with her account.

51 Before turning to the matter which was described by Mr Richter as the centrepiece of the application, namely, the availability of residential drug rehabilitation to the applicant, it seems reasonable to dwell for a time on the next three matters mentioned in s 3AAA(1) of the Act, namely, the applicant's criminal history, the extent to which he has complied with the conditions of earlier grants of bail, and the question whether the applicant was on bail or subject to summons in relation to other offences at the time of the alleged offending. To my mind, a careful consideration of these matters is important to a realistic assessment of whether or not it is likely that the applicant would be willing or able to avail himself of the residential drug treatment place which has been offered to him.

52 The applicant has a long and troubling criminal history covering a vast span of offending, the bulk of it over the last 8 years. He has accrued no fewer than, on my rough estimate, 23 court appearances for many dozens of charges. He has received all manner of sentences, from numerous community based dispositions, to suspended sentences, to frequent terms of imprisonment.

53 Unfortunately, as my earlier summary indicates, he has a shocking history of breaching court orders and, importantly, grants of bail by courts or police.

54 At the time of the current offending, he was subject to two separate grants of bail, and two summons, with another outstanding collection of charges yet to be laid at the time, most of the then-outstanding charges being for indictable offences. Albeit that of course I acknowledge that most of this offending has not yet been dealt with, and is, as such unproven, the picture created is of a person who in spite of a long history of offending, and having, by the time of the current offending, attained the age of 35, had entirely failed to learn any lesson from his previous criminal conduct and his frequent involvement in the criminal justice system.

55 Through it all, he has had the benefit of many sentences which have sought to give him the opportunity, with the authority of the court overseeing the process, to do something about his drug problem. This he has been unable or unwilling to do.

56 I now turn to the centrepiece of the application. I accept that it would be in the community interest, as well as in the interests of the applicant's future, for him to be able to rid himself of the drug habit which has so obviously blighted his life, and been his almost constant, troublesome companion down through the years. That acceptance, however, does not mean that the availability of a place in a residential drug treatment program at this time would be sufficient, alone or in combination with the other matters relied upon, to enable the applicant to overcome the high hurdle represented by the exceptional circumstances test.

57 Notwithstanding the fact that in some cases, participation by an applicant in residential drug treatment may be a very desirable prospect and an important matter bearing on the issues required to be determined by a judge contemplating a grant of bail,[15] the proven conduct of the applicant over some years now leaves me with serious doubt that he would be willing or able to comply with the requirements of involvement with a program such as The Cottage. As Ms Hutchison said in answer to some questions I asked her, it takes a good degree of discipline for a person to be able to successfully proceed through the program. Before there would be any realistic prospect of that occurring, there would have to be a high degree of motivation governing the conduct of the person in question, and a 'willingness for self-leadership'[16], as she put it.

58 I am far from satisfied that there is any realistic prospect that the applicant has yet reached the stage in his life when such an achievement would be open to him.

59 Insofar as Mr Richter submitted that there would only be a 'very small chance' that the applicant would breach the requirements of the program, I do not accept that submission. Nor do I accept the submission that an unlikely concatenation of events would be required before he would be likely to leave the premises while bailed to reside there. All that would be required would be for the applicant to surrender to the urges which have so governed his life for so many years.

60 Bearing in mind the long and serious criminal history of the applicant, his history in spurning opportunities given to him, and in particular, his proven history of an unwillingness to abide by the strictures of bail, I think that the prospect of the applicant failing to make a go of things at The Cottage, leaving in breach of his bail, and resuming his abuse of drugs, with the resulting damaging effect on his behaviour, is a very real and troubling one.

61 Insofar as Mr Richter relied strongly on the compliance by the applicant with CISP in the months leading up to the current offending, telephone attendance at counselling or other sessions cannot be likened to what would be required in residential drug rehabilitation, and there is no evidence which would suggest that the applicant was drug free during that period.

62 The existence of a FVIO in place protecting the complainant would give the Court little comfort, in view of his seven convictions for breaching FVIOs in recent years, and the frequent occasions over the years of family violence reports in respect of which he has been the focus. On numerous occasions his mother, his sister, and his father have sought the protection of the police from his conduct. I am required to take into account pursuant to s 3AAA(1)(f) the fact of there being an FVIO in force, and under s 5AAAA, I am required to consider whether, if the applicant was released on bail, there would be a risk that the applicant would commit family violence. In the circumstances, I do think there is a risk.

63 Mr Richter submitted that there is stable accommodation available to the applicant should he no longer reside at The Cottage. In light of the history of problems between the applicant and his parents, that is somewhat difficult to accept.

64 On the question of delay, the indications are that there may end up being a delay of about ten months before the charges are heard. This is a significant delay, due in part, at least, to the effects of the COVID-19 pandemic. The impact of this delay on the question of exceptional circumstances, however, must be assessed in light of the seriousness of the offending, the inevitability of a term of imprisonment being imposed upon the applicant should he be found guilty, and the fact that it cannot be supposed that the period on remand would exceed the likely sentence.

65 I take into account the onerous nature of custody brought about by the COVID-19 pandemic, along with all of the other surrounding circumstances, consistent with the authorities. I also am conscious of the fact that the applicant suffers from particular mental conditions, and I pay due regard to that consideration.

66 I also have regard to the known view of the complainant to a possible grant of bail to the applicant. As indicated in the nominal informant's report at [112], the complainant has been comforted thus far by the fact of the applicant being kept in custody, and has expressed her fears that he may do something to her were he to be released. The fear of the complainant would appear to be reasonable, and in accord with concerns felt and expressed by the police, also in the nominal informant's report, that if he is released on bail, the applicant will seriously harm or even kill the complainant. In light of the proven history of the complainant, it would be most unwise to discount these concerns.

67 The final matter relied upon by Mr Richter in proof of exceptional circumstances was the contention that any risk posed by the applicant would be substantially ameliorated by the imposition of the sort of conditions countenanced in his submissions. As may be apparent from what I have said already, I am not convinced that that is so. Over a period of years, the applicant has shown himself to be unwilling to abide by the strictures and requirements of bail. No material before me would suggest reason to believe that his attitude and approach now would be any different from those manifested in the past.

68 Having carefully considered all of the matters relied upon in support of proof of exceptional circumstances in this case, and in spite of the concession made on behalf of the respondent, I think they fall short of proving that exceptional circumstances exist in this case that justify the grant of bail. For that reason, it would be necessary for bail to be refused.

69 For completeness, I can indicate that even had I been of a different view, I would have concluded that there was an unacceptable risk of the applicant endangering the community, reoffending, or failing to answer bail, which would have required a refusal of bail in any event. I do not accept Mr Richter's contention that the most probable reoffending of the applicant, were it to eventuate, would be 'petty, low-level' offending. It seems to me that the risk he poses in respect of reoffending cannot be viewed in such benign terms, in light of his history of criminality and the nature of the current allegations.

70 For the reasons I have stated, this application for bail must be refused.

[1] Report of Senior Constable Peter Hamilton, Exhibit AP-1 to Affidavit in Response.

[5] [2004] VSC 17.

[6] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[7] See, for example, Re Brown [2019] VSC 751 (Lasry J).

[11] Court Integrated Services Program.

[13] In contradistinction to the written submissions, in which it was asserted that exceptional circumstances have not been shown to exist.

[15] See Robinson v The Queen [2015] VSCA 161; (2015) 47 VR 226 [49]-[51].