Re Ferry [2025] VSC 347 (16 June 2025)

2 For the purposes of the application, it is necessary to summarise the circumstances of the alleged offending.

3 In chronological order, the charges against the applicant are based on the following circumstances.

4 The first set of charges, laid by Senior Constable Jordan Rodriguez on 23 November 2023, consist of nine charges, comprising one charge each of: theft from a motor vehicle; theft; retention of stolen goods; driving while disqualified; improper use of motor vehicle causing loss of traction; driving in a manner dangerous; driving at a dangerous speed; using an unregistered motor vehicle; exceeding the speed limit; and using a number plate not assigned to the vehicle.

5 The offending is alleged to have been committed on three separate dates. First, it is alleged that between 25 December and 26 December 2020, the applicant removed and took the Victorian registration plate off a vehicle in Ravenhall to which he was not entitled. Secondly, it is alleged that, between 19 January and 20 January 2021, the applicant attended at premises in Ballan, where he removed and took the registration plate off another vehicle. Those two offences are the subject of charges 1 and 2.

6 The remaining offences, which are the subject of charges 3 to 10, were allegedly committed on 22 November 2023. On that date, at approximately 11:15 pm, the applicant was detected to be driving a motor vehicle, displaying two separate Victorian registrations, on High Street, Melton at 80 kph. The applicable speed limit was 60 kph. When police performed a U-turn in their vehicle to intercept the applicant, he accelerated away at a very fast rate of speed. While doing so, the applicant twice performed manoeuvres in the vehicle, which caused its wheels to lose traction, resulting in noise and smoke, and the rear of the vehicle swinging outwards. At that point, police noted the applicant's vehicle to be travelling at least at 125 kph. Eventually, the applicant's vehicle ran out of fuel, and it was intercepted by police, who arrested him. The registration on the vehicle had expired in July 2022. Inquiries revealed that the applicant's driver's licence had been cancelled, and he had been disqualified, on 5 July 2023 for failing to complete a drug behaviour change program. The registration plates on the vehicle had been stolen.

7 When questioned by police, the applicant admitted that he was disqualified from driving. He said that he had found the number plates that were attached to the vehicle and he did not know who they belonged to. He agreed that he had driven at an excessive speed, and onto the wrong side of the road, in order to evade the police.

8 The applicant was charged and released on bail on his own undertaking, and on a condition that he not drive a motor vehicle.

9 The informant on the second set of charges is First Constable Matthew Fisk. They comprise six charges, namely, one charge each of: failing to stop on police direction; possession of a drug of dependence; driving while disqualified; contravening a condition of the bail (not to drive a motor vehicle) on which he was previously released on 22 November 2023; theft; and fraudulently using a registration plate.

10 It is alleged that on 27 February 2024, at 8:10 pm, the applicant attended BP Rockbank petrol station in a black Holden utility that bore a stolen registration plate. He filled his vehicle with $116 worth of petrol, and then drove off without making any attempt to pay. Subsequently, on 29 February 2024, at 8:20 pm, police, conducting patrols in the Melton area located the vehicle, bearing a different registration plate, which was stolen. Police activated the flashing lights on their vehicle. In response, the applicant drove off in an attempt to evade apprehension. The applicant then stopped the vehicle, and was observed to exit the driver's side of it. When police searched the vehicle, they located a satchel bag on the passenger's seat that contained a small quantity of crystal substance, believed to be methylamphetamine. A check of the applicant's driver's licence revealed that he had been disqualified from driving at the time.

11 The applicant was arrested and conveyed to the Melton Police Station. When interviewed, he exercised his right not to answer the questions put to him. He was then released on bail to attend Sunshine Police Station on 15 April next, with a condition that he not drive a motor vehicle.

12 The third set of charges was laid by Detective Senior Constable Samuel Moon on 25 March 2025. They comprised nine charges, alleged to have been committed by the applicant in January 2025, namely: three charges of burglary; three charges of theft; and three charges of criminal damage.

13 It is alleged that, at about 1:45 am on 25 January 2025, the applicant and an unknown co-offender attended the Werribee South General Store in a 1998 Nissan Patrol vehicle. The applicant and the co-offender smashed a small hole in the front door of Café Di Daniela and stole the till from the cash register. They then forced entry through an adjoining door from the café to the Werribee South General Store, where they stole a large quantity of cigarettes and alcohol.

14 It is further alleged that on 28 January 2025, at approximately 1:53 am, the applicant again attended the same address, this time by himself, where he forced entry to Café Di Daniela and then through the adjoining door to the Werribee South General Store. The applicant stole $500 from the till, and some consumable goods, then departed in the Nissan Patrol vehicle.

15 Three days later, on 31 January 2025 at 1:00 am, members of the Melton CIU observed the Nissan Patrol vehicle bearing stolen number plates travelling at a fast speed in the Melton area. The vehicle was subsequently located, having been deserted. Personal cards and items in the name of the applicant were located in a bag near the vehicle. Fingerprints belonging to the applicant's then partner, Chelsea Spiteri ('Spiteri'), were located on the vehicle. Subsequent checks on the applicant's telephone number placed the handset at the scene of the burglaries.

16 On 25 March 2025, the applicant was arrested at premises at Point Cook. When interviewed, he again exercised his right not to answer questions. His application for bail was refused at the Geelong Magistrates' Court on the following day.

17 The informant in respect of the fourth set of charges is Detective Senior Constable Steven Robinson of the Western Region Crime Squad. The charges consist of 12 charges of offences alleged to have been committed in March 2025, namely: four charges of theft; one charge of burglary; one charge of theft of a firearm; two charges of theft of a motor vehicle; one charge of possession of a traffickable quantity of firearms; two charges of possession of a drug of dependence; and one charge of possession of cartridge ammunition without a licence or permit.

18 It is alleged that on 10 March 2025, at approximately 6:25 pm, the applicant, with his co-offender, Spiteri, attended at the BP Service Station at Rockbank. The applicant was captured on CCTV, driving a white Toyota 86 Coupe bearing false numberplates. He filled the vehicle with 39.85 litres of fuel to the value of $79.26. While he was doing so, Spiteri entered the service station shop area, removed an air freshener (valued at $5.50) and departed without paying. Ferry and Spiteri then entered the vehicle, and the applicant drove away without paying.

19 It is further alleged that, shortly after 1:30 pm on 18 March 2025, the applicant and Spiteri attended residential premises in McLennan Avenue, Maddingley in a white Toyota 86 coupe. The owners of the premises were not at home at the time. The applicant and Spiteri gained access to the garage attached to the residence, cut padlocks off three lockers in it, and removed seven rifles, namely: two Centre fire rifles, three Rim fire rifles, one magnum Rimfire rifle, and an air rifle. They also stole an army magazine tin that contained an assortment of ammunition and two of the firing bolts for the firearms. It was subsequently revealed that the victim's son had previously been in a de facto relationship with Spiteri.

20 The white Toyota 86 coupe, in which the applicant and Spiteri attended the premises, had been stolen three weeks previously in Diggers Rest. The number plates on the vehicle have been identified as being used during the petrol theft on 10 March 2025 at the BP service station at Rockbank. The driver and passenger of the vehicle were identified as the applicant and Spiteri from CCTV footage at the service station. An analysis of the call charge records of both the applicant and Spiteri revealed that, at the time of the offence on 18 March, their mobile phones were using cell phone towers in the Bacchus Marsh township area at the time at which the motor vehicle was in McLennan Avenue. CCTV footage from the next door premises in McLennan Avenue captured the white Toyota driving past the address on six separate occasions between 5:57 am and 11:41 am on the date of the burglary.

21 Subsequently, the applicant and Spiteri were involved in the theft of fuel at two separate service stations on 19 March and 21 March, in circumstances in which they filled the vehicle with fuel and departed without paying for it.

22 Subsequent investigations revealed that the white Toyota 86 coupe, that was used in the burglary on 18 March, was parked at or near the address of the applicant and Spiteri in Point Cook. On 25 March 2025, a search warrant was executed at that address. A systematic search of the premises was conducted, during which police located a number of items, including: two shotgun cartridges in a black man bag; one clear ziplock bag of methylamphetamines; one clear ziplock bag of cannabis; and several gun parts, including a sawn-off rifle butt that was not linked to the investigation, but which was contained within a green metal army ammunition tin. Located in the garage of the premises was a stolen 2015 Yamaha motorcycle.

23 Located opposite the premises was the stolen white Toyota coupe, with cloned number plates. The vehicle was fitted with different front and rear wheels, and had a distinctive lowered stance, that corresponded with the appearance of the vehicle capture on CCTV footage in McLennan Avenue Maddingley on 18 March. A search of the vehicle revealed (inter alia) two firearm barrels that had been cut down, and an army green ammunition case containing various types of rifle ammunition. The ammunition case had been stolen from the address in McLennan Avenue, Maddingley, in the course of the burglary on 18 March.

24 On their arrest on 25 March 2025, the applicant and Spiteri were each interviewed, and they again each exercised their right not to answer questions put to them.

25 In the affidavit in support of the application, it is suggested that the prosecution case, in respect of the Robinson charges, is circumstantial, with no evidence identifying the applicant being present at the scene of the burglary.

26 In response, the informant points to a body of circumstantial evidence, which, it is contended, links the applicant with the burglary. In summary, that evidence includes the following. The applicant and Spiteri had intimate knowledge of the layout of the victim's premises, and they were known associates of the victim's son. Spiteri had resided at the premises and knew the firearms were stored in the garage. The applicant had been identified on CCTV using the stolen vehicle as part of the theft of fuel on 10 March 2025 in company with Spiteri. The applicant and Spiteri committed a further theft of fuel at an Ampol service station in Melton on the morning before the burglary on 18 March 2025. A mobile phone located during the search of the applicant's premises, and which belonged to the applicant, used cell phone towers in the vicinity of the theft of fuel at Melton before the burglary, and in the direct vicinity of the victim's address at the time of the burglary. A vehicle, that was sighted on ANPR footage from a Melton Highway patrol unit on 18 March 2025, was consistent with the recordings of the cell phone towers that the applicant's and Spiteri's mobile phones used. A search of the stolen white Toyota coupe uncovered evidence directly linked to the address where the burglary was committed. The vehicle contained a Milwaukee tool bag that contained boltcutters, which, it is alleged, were used to cut padlocks on the firearms storage cabinet at the address of the burglary. A witness has provided a statement that, on the day of the burglary, he saw a male placing a red Milwaukee tool bag in the boot of that vehicle.

27 In cross-examination on the current application, Detective Senior Constable Robinson agreed that the relevant call charge records contain three entries in respect of the applicant's telephone connecting with the Bacchus Marsh tower. There are a number of EBM entries in respect of 18 March between 12:20 am and 2:41 pm. Only one entry (at 9:06 am) noted a connection with Park Road, Maddingley. The entries for the period between 1:06 pm and 2:41 pm connected with Swans Road, Bacchus Marsh.

28 The applicant is 24 years of age. He lived with his parents in Bacchus Marsh throughout his childhood. When he was about 20 years of age, his father became unwell and passed away. Subsequently, the applicant moved out of the family home. At the time of his arrest, he was living with his co-accused, Chelsea Spiteri. He has no previous criminal history.

29 The applicant completed Year 10 at school. He then commenced an apprenticeship in metal fabrication in 2018. At that time, he was living at home with his parents and his older brother. When his father became ill, the applicant assisted his mother and brother to care for him. The applicant's father died in October 2021. The applicant was particularly distressed by the circumstances of his father's illness, and of his passing, and he ceased his apprenticeship in December 2021. Since then, the applicant has been involved in intermittent employment in metal fabrication. He left home in February 2025, due to difficulties in his conduct arising from his use of methylamphetamine.

30 The applicant has used methylamphetamine since the age of about 20 years. He first used the substance to assist him to cope with his father's illness and subsequent death.

31 The applicant was initially assessed by the Court Integrated Services Program (CISP) on 26 March 2025. The outcome of the assessment was that he was recommended for case management, which would be directed to addressing his substance abuse issues. For that purpose, the case manager, Mr Michael Davis, proposed that the applicant would attend for a further assessment relating to his substance abuse issues with an accredited worker, and that he would attend a general practitioner for mental health review. The initial CISP program was unable to be implemented, as the applicant was refused bail on 26 March last.

32 The applicant was further assessed by CISP at the Marngoneet Correctional Centre via video-link on 12 June last. In the assessment, the applicant identified his need to abstain from methamphetamine use, describing his use of that substance as a coping mechanism to numb emotional distress. Before his arrest, he had been using approximately half a gram daily. He acknowledged that his time on remand had provided him with the opportunity to desist from the use of the substance, and to, consequently, gain some mental clarity.

33 The outcome of the assessment was that the applicant was recommended for case management by the Sunshine CISP team. Ms Melissa De Thomasis, the assessment and referral practitioner, who conducted the assessment, considered that the applicant might not require the full four month case management period, and she recommended that his progress be reviewed after four weeks. It was recommended that, if the applicant were granted bail, there should be a condition that he attend Sunshine CISP office for an initial case management appointment on 18 June, and that he reside with his mother at her home in Maddingley while he is on bail.

34 The applicant's mother, Sonia Ferry, gave evidence on the hearing of the application. Ms Ferry is a self-employed hairdresser. She gave evidence concerning the applicant's resort to drug use, as a result of his distress arising from his father's illness and passing. Ms Ferry stated that the applicant had been a diligent apprentice, but that his father's illness and death had had a terrible impact on him.

35 Ms Ferry has had contact with the applicant while he was in custody. On her visits to prison, she has noted that he now looks healthy, and has demonstrated insight into his need to address his drug problems. Ms Ferry stated that if the applicant were released on bail, she would support him living in her home, and that she would also support him in receiving appropriate treatment for his drug addiction. Ms Ferry, being self-employed, can be flexible in her work, and, if necessary, she, herself, will convey the applicant to treatment sessions. In her evidence, she stated that she was prepared to give the Court a formal undertaking that if the applicant were granted bail, and if he were to breach any of its conditions, she would immediately report the matter to police.

36 The applicant is not required to establish either exceptional circumstances or compelling circumstances to justify the grant of bail in this case.

37 The respondent has opposed bail on the basis that if the applicant were released, there would be an unacceptable risk that he would:

(a) endanger the safety or welfare of another person by committing an offence that has that effect or by any other means;

(b) fail to answer bail.

38 Section 4E(1) of the Bail Act 1977 ('the Act') provides that a court must refuse bail for a person accused of any offence if the court is satisfied (inter alia) that -

(a) there is a risk that the person accused would, if released on bail -

(i) endanger the safety or welfare of any other person, whether by committing offence that has that effect or by any other means; or

(iv) fail to surrender into custody in accordance with the conditions of bail; and

(b) the risk is an unacceptable risk.

39 Section 4(3) provides that, in considering whether a risk is unacceptable, the court must (inter alia) take into account the 'surrounding circumstances', which are specified in s 3AAA(1)(aa) to (n) of the Act.

40 In El Nasher v Director of Public Prosecutions,[1] the Court of Appeal described the process involved in determining whether a risk is unacceptable in the following terms:

What constitutes an acceptable risk (or conversely, an unacceptable risk) will always be a question of fact and degree. There are 14 variables in s 3AAA ("surrounding circumstances") that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[2]

41 On behalf of the respondent, it was submitted that if the applicant were released on bail, there would be an unacceptable risk that he would:

(a) fail to answer bail; and

(b) endanger the safety of others, particularly by accessing firearms.

42 In respect of the first matter, counsel noted that the applicant had been released on bail on 23 November 2023, and subsequently on 29 February 2024, in the matters in which Senior Constables Rodriguez and Fisk were the informants, to appear at Sunshine Court on 15 April 2024. The applicant had failed to attend court on that date, as a result of which, warrants for his apprehension were issued. Counsel also noted that, apart from that matter, the offending, that was the subject of the charges laid by Messrs Fisk, Moon and Robinson, involved offences committed while the applicant was on bail for the matters in respect of which Senior Constable Rodriguez is the informant. At the time the applicant committed the offences that were the subject of the Fisk charges, he was subject to a condition not to drive a motor vehicle.

43 Counsel further submitted that, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety and welfare of members of the public. In respect of that submission, counsel relied, first, on the dangerous manner in which the applicant drove the motor vehicle on the occasion that was the subject of the Rodriguez charges. Further, and more significantly, counsel relied on the theft of the substantial quantity of firearms in respect of the matters that are the subject of the Robinson charges. In particular, counsel noted it was a matter of concern that those firearms had not been recovered.

44 In response, counsel for the applicant noted that the previous breaches by the applicant of bail were in respect of bail granted by police, and not a formal grant of bail by a court.

45 In support of the application, counsel submitted that the support of the applicant's mother is an important consideration. In addition, if the applicant were released on bail, he would be subject to the CISP program, which would target the issues, which have underpinned his offending, and, in particular, his mental health issues and his substance abuse. Counsel noted that the period in which the applicant has been on remand, almost three months, has had a salutary effect in ensuring that he gain some insight into the negative impact of his drug use. Counsel further submitted that if the applicant were not granted bail, there is a significant likelihood that his period in custody would exceed any sentence of imprisonment imposed on him if he were found guilty of the charges which have been brought against him.

46 Finally, counsel noted that the applicant's co-accused, Spiteri, had been granted bail on 16 May last. Ms Spiteri was subject to two community corrections orders at the time of the offending, and, it was submitted, the case against her in respect of the Robinson charges is more substantial than the case against the applicant.

47 In considering the application for bail, it must be accepted that there are relevant considerations, which have been properly raised by the respondent, concerning whether, if the applicant were granted bail, there would be an unacceptable risk that he would not answer bail, and that he would endanger the safety of others in the community.

48 In particular, after the applicant was granted bail on the Rodriguez charges and the Fisk charges, he failed to appear on 15 April 2024 at the Sunshine Court, with the consequence that warrants for his apprehension were issued against him. In addition, as noted, the offending, that was the subject of the Fisk, Moon and Robinson charges, are each alleged to have been committed while the applicant was subject to bail. Further, and in contravention of the bail on which the applicant was released on 23 November 2023 on the Rodriguez charges, the offending, that was the subject of the Fisk charges, involved the applicant contravening the condition of his bail that he not drive a motor vehicle.

49 In addition, there is some concern that if the applicant were released on bail, he might engage in conduct that endangers other members of the community. First, of course, the manner in which he drove the motor vehicle, in the circumstances that are the subject of the Rodriguez charges, was particularly dangerous. Secondly, and more significantly, it is a matter of some concern that the firearms, that are the subject of the Robinson charges, have not been recovered.

50 The critical question, then, is whether either of those two risks are unacceptable in accordance with the principles to which I have referred.

51 In considering those matters, as I have noted, the offending alleged against the applicant is quite serious. It is not possible to make any realistic assessment of the strength or otherwise of the prosecution case at this point in respect of the Robinson charges. Certainly, there are a number of matters, which may be raised on behalf of the applicant. On the other hand, for the reasons pointed out by the informant, there is a body of circumstantial evidence that, prima facie, implicates the applicant in the offending in question. It is sufficient, for present purposes, to assess the application for bail on the basis that the prosecution case, while contestable, could not be regarded as weak.

52 On the other hand, there are a number of factors, which do favour the grant of bail in the present case.

53 First, the applicant has no previous convictions. It is apparent that, during his time in custody, he has gained some insight into the detrimental effect of his consumption of methamphetamine. I was particularly impressed by the evidence, given by the applicant's mother, Ms Ferry, to the effect that the applicant's mental and emotional state has improved significantly during his time in custody.

54 If the applicant were granted bail, he would have the support of the CISP program, which would be directed to addressing his mental health issues and his drug use. Further, Ms Ferry, in her evidence, stated that she would be prepared to give a formal undertaking to the Court that, if the applicant failed to adhere to any of the conditions of bail on which he were to be released, she would report that matter to police.

55 If the applicant were not granted bail, then there is a reasonable prospect that he might spend a longer time in custody than any term of imprisonment, which might be subsequently imposed on him. The Robinson charges will come before the Melbourne Magistrates Court on a committal mention hearing on 18 June next. It might be realistically expected that a trial of those charges might not be heard, at least until some time in 2026.

56 Finally, it is relevant that the applicant's co-offender, Chelsea Spiteri, was granted bail on 16 May last. Ms Spiteri has previous convictions. On a preliminary assessment, the prosecution case is stronger against her than against the applicant in respect of the Robinson charges. Ms Spiteri has been twice placed on community corrections orders, on 28 July 2023 and 19 August 2024. She was dealt with for a breach of those orders on 4 November 2024, and her community corrections orders were continued until July 2025. In those circumstances, it would appear that the offending, that is the subject of the Robinson charges, is alleged to have been committed by her while she was subject to both community corrections orders.

57 Taking those matters into account, I am satisfied that there is not an unacceptable risk that, if the applicant were released on bail, he would fail to answer his bail, or that he would endanger the safety and welfare of others, provided that he fully complies with appropriate conditions, which would address those risks.

58 Accordingly, I have concluded that the applicant should be granted bail, on appropriate conditions, including the following:

(1) The applicant attend Melbourne Magistrates' Court on 18 June 2025 (for Informant Robinson matters) and surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody. The applicant must also attend the next court dates for the Informants Moon, Fisk and Rodriguez matters.

(2) The applicant reside at 23 Moore Street, Maddingley, Victoria 3340 ('the premises').

(3) The applicant remain at the premises between the hours of 10:00 pm and 6:00 am.

(4) The applicant present at the front door of the premises during curfew hours if called upon by a member of Victoria Police to do so.

(5) The applicant is to attend the Court Integrated Services Program (CISP) office at Sunshine Magistrates' Court for his initial case management appointment on 18 June 2025 and thereafter comply with all lawful directions of any officer of CISP and attend all appointments as directed by CISP.

(6) The applicant is not to contact or attempt to contact or associate with Chelsea Spiteri by any means.

(7) The applicant is not to associate with any witness for the prosecution other than the Informant.

(8) The applicant not drive any motor vehicle or motorcycle.

(9) The applicant not consume any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.

(10) The applicant is not to leave the State of Victoria.

(11) Within 48 hours, the applicant is to arrange for the surrender of any passport in his possession to the Informant or their nominee.

(12) The applicant is not to attend any points of international departure.

(13) The applicant is to report to the Officer in Charge at the Bacchus Marsh Police Station every Monday and Friday between the hours of 9:00 am and 6:00 pm.

[1] [2020] VSCA 144.

[2] Ibid [51] (Priest, T. Forrest and Weinberg JJA).