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[2010] VSC 605
Supreme Court of Victoria
2010-12-17
LASRY J
Original judgment source is linked above.
The applicant bears the onus of establishing that there is no justification for his ongoing detention. The question of whether the applicant poses an "unacceptable risk" to himself or the community remains relevant, as a necessary consideration in deciding whether ongoing pre-trial detention is justified.
8 The applicant has been in custody since 13 February 2010. On 23 November 2010, he was refused bail in the Magistrates' Court on the basis that he was an unacceptable risk in relation to these matters. I am informed that the applicant presently intends to stand trial in the County Court and plead not guilty. A preliminary directions hearing is scheduled in that Court for 28 January 2011 and the parties agree that the trial itself is unlikely to be held before September 2011. The parties also agree that since the applicant has been serving other sentences until 14 December 2010, his pre-trial detention in relation to this matter was 20 days as at the date of this application.
9 In support of the application for bail, Mr Gray of counsel on behalf of the applicant relied on two matters. First, he relied on the delay in the trial coming on for hearing in the County Court which he submitted might have a particular consequence. He submitted that there was a risk that the time the applicant spends as a remand prisoner, if not released on bail, might be more than the sentence it could be expected would be imposed if he were not released on bail. The prosecutor, Mr Brown, submitted on behalf of the respondent that it was possible that that could occur, though he argued that if this matter proceeded as a trial and the applicant was found guilty, the Crown would contend that an appropriate sentence would be somewhat more than the approximate ten months of pre-sentence detention.
10 On behalf of the applicant, it was submitted that a regime has been developed in readiness for a grant of bail which seeks to ensure that the risk of the applicant breaching bail is an "acceptable risk". The proposed regime involves treatment and counselling for the applicant's drug and alcohol addictions and has been largely the work of Mr Hardie, a person who has continued to support Mr Flood over the years and with whom it is proposed that Mr Flood reside if bail is granted.
11 On the other hand, the Crown prosecutor, Mr Brown, submitted there is a very substantial prospect that the applicant will commit offences if he is released on bail, particularly given his record which, as Mr Brown put it, "speaks for itself". The history of the applicant's offending starts in 1986 when the applicant was 12 years old and includes theft, burglary, stealing cars, assault, possession of drugs (including cannabis, heroin, methamphetamine), holding proceeds of crime, recklessly causing injury, and wilful damage to property. That is a very brief summary of what is a very substantial and troubling record. His record also relevantly includes two convictions for failing to appear in 1998 and 1999, four prior convictions for breaching a suspended sentence between 2005 and 2010, breaching a community based order in 1991, escaping from custody and breaching parole on five occasions between 1992 and 2005.
12 The applicant was born on 21 January 1974. He is presently aged 36 years. He has no family as his last remaining family member, his mother, died two years ago.
13 Apart from these matters, a significant obstacle to a grant of bail is the fact that the offence of aggravated burglary for which he is to stand trial in the County Court, and other offences involving the applicant assaulting Mr Hardie, who continues to support him, occurred on 11 February 2010, two days after he had been granted bail by the Dandenong Magistrates' Court in relation to other matters. Indeed, it was a condition of his bail on that occasion that he reside at Mr Hardie's premises. In relation to the offences committed on Mr Hardie, the applicant was dealt with by the Dandenong Magistrates' Court on 10 August 2010 and was sentenced to an aggregate sentence of two months imprisonment.
14 Thus, the substantial obstacle for this application is that the arrangement proposed for any grant of bail I might make is similar, in that it is again proposed that if released on bail the applicant will reside with Mr Hardie.
15 However, Mr Hardie gave evidence on this application and his evidence was very impressive indeed. He is a Commonwealth public servant with the Department of Human Services working at their Dandenong office three days per week. He is blind and has the assistance of a guide dog. He is a volunteer with Apex, a service organisation, and in that capacity, Mr Hardie visits and cares for prisoners. He said he wishes to contribute to the community and, if I may say so with respect, he makes a very significant contribution.
16 Mr Hardie first met the applicant in 1992 when he was visiting him at Pentridge Prison. He maintained contact with him and became aware that the applicant has an intellectual disability. That meant that the applicant was vulnerable and from time to time was a protection prisoner. Mr Hardie offered support to the applicant because there was no-one else who would do so.
17 For the purpose of this application, Mr Hardie detailed what he had recently done to establish a support network for the applicant, should he be released on bail. This, he said, was the first time arrangements of this type had been made for the applicant. Those arrangements have involved securing statements from South Eastern Alcohol and Drug Service and the Eastern Region Mental Health Association noting their willingness to assist the applicant. That assistance will involve further counselling, treating the applicant as an intensive client and providing Mr Hardie with support as the applicant's carer. In addition, Mr Hardie has obtained up to date information from Dr Gelman who is a consultant psychiatrist who is concerned about the effect that custody is having on the various conditions suffered by the applicant. In addition, an organisation known as "Family Drug Help" has offered to support Mr Hardie in his planned efforts to rehabilitate the applicant.
18 Mr Hardie agreed in his evidence that on 9 February 2010 the applicant was released into his care and on that occasion he had not realised that the applicant had obtained drugs in the prison system. Mr Hardie gave evidence that in preparation for the possibility of the applicant being granted bail on this current application, he has arranged a series of appointments with agencies to enable the applicant to receive the full benefit of the services and support they offer. Mr Hardie seemed to be saying that he was now trying to make sure that all contingencies are covered in the event that the applicant is released.
19 On his oath, Mr Hardie said that if the applicant were again released into his care, on the condition that he reside at his premises, Mr Hardie would report any breach of the conditions of bail to the police. I am satisfied that he will do so. He also said that at present the applicant is on 120mg of methadone. Mr Hardie has made arrangements with a pharmacist located close to his residence, who has agreed to assist in maintaining the applicant's methadone program. This, he said, will help to avoid situations where the applicant is without the medication he needs. Mr Hardie has also given an assurance that he will be involved in making sure that the applicant attends all the appointments that are made for him.
20 Also living at Mr Hardie's premises is a person called John Booth who is well known to the applicant and who has obviously benefited substantially from Mr Hardie's commitment to the rehabilitation of the people he becomes involved with.
21 Mr Hardie was, as I have said, a very impressive witness who displayed a commitment to the cause of the applicant's rehabilitation which is not just admirable, but from a community point of view, invaluable. In my opinion, a program has now been established for the applicant that involves arrangements which, although not eliminating the risk, makes the risk acceptable.
22 It is my opinion that the applicant is at a final turning point. It is true that his record is very bad and that he has a history of offending which is particularly relevant to the issue of whether he is likely to commit an offence whilst on bail. In the ordinary course, there are compelling reasons why bail should be refused. However, I am about to extend to him one last opportunity to reverse the trend and I do it only because I am so impressed with the commitment of the carer, John Hardie and I believe that the applicant knows there is much at stake for him. In my view, the insight that Mr Hardie has about the applicant's circumstances is such as to substantially reduce the risk, despite the history. If the opportunity offered to the applicant by Mr Hardie is not exploited, he may well become irredeemable. Thus, with considerable hesitation, I am persuaded that although there are risks in the release of the applicant, by virtue of the efforts of Mr Hardie, those risks can be made acceptable and so the detention of the applicant is no longer justified.
23 The applicant will be admitted to bail on his own undertaking conditioned in the proper form for his appearance as required by law at the directions hearing for his trial at the County Court of Victoria on 28 January 2011 and thereafter on such dates as he shall be notified and upon the following special conditions:
[1] Maxwell P in Re Fred Joseph Asmar [2005] VSC 487.