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[2018] VSC 393
Supreme Court of Victoria
2018-07-17
Priest JA
Original judgment source is linked above.
4 Somewhat remarkably, it might be thought at first blush (given that the applicant faced charges of trafficking commercial quantities of drugs of dependence), a 'night court' magistrate released the applicant on bail on 14 May 2018, remanding him to a filing hearing at the Melbourne Magistrates' Court the following day at 10.00 am. Bail was granted on the applicant's own undertaking with a surety of $10,000. Special conditions included that the applicant: report daily to police; surrender any passport or travel documents; not attend any place of international departure, or leave Victoria or Australia; not associate with co-accused; not be in contact with April Acciarito; reside at his mother's residence; not leave the residence between 9.00 pm and 6.00 am unless accompanied by his mother; and present himself to police at the front door of the residence during 'curfew hours'.
5 At the filing hearing the next day, 15 May 2018, another magistrate extended bail to a committal mention fixed for 7 August 2018.
6 A week after first being bailed, on 21 May 2018, at 6.55 pm, police located the applicant in the vicinity of the foyer of the building in which the serviced apartment was located. Police searched a satchel the applicant was carrying and allegedly located drugs and other items, including 30 grams of ice in a snap lock bag, five millilitres of GHB in a vial and $6,809.10 in cash. As a result, the applicant was charged with the following:
11 The applicant relied on an affidavit affirmed by his solicitor, Andrew Hale, on 19 June 2018, and exhibited reports, together with oral evidence from the applicant's mother Gabrielle Gloury and representatives of The Hader Clinic.
12 In brief summary, Mr Hale deposed to the following:
• the applicant was born on 21 October 1994 and is now aged 23 years;
• although the applicant has previously worked as a personal trainer, he is presently unable to work;
• on 10 January 2014, the applicant sustained serious injuries in a car accident, including a severe head injury; loss of consciousness; post-traumatic amnesia; a compound left humeral fracture; left radial nerve palsy; transverse fractures of the spine at L2 and L3; chronic back pain; and a traumatic brain injury;
• the applicant's acquired brain injury ('ABI') resulted in in memory and concentration disturbance, and he suffers from post-traumatic stress disorder ('PTSD') and suicidal ideation;
• the applicant has very limited use of his left arm and hand, and is psychologically distraught;
• in March 2017, the applicant received settlement monies of $800,000 resulting from a Transport Accident Commission ('TAC') claim;
• when he received the TAC settlement, the applicant was in a relationship with his girlfriend and living with his parents;
• the applicant separated from his girlfriend in November 2017, and, when returning home from breaking up with his girlfriend, had another 'single vehicle' car accident, once more striking his head;
• the applicant's driver's licence was suspended for medical reasons from about January to May 2018;
• thereafter the applicant's behaviour became more erratic, and he 'drifted away' from living with his parents, instead choosing to live in his car or to 'couch-surf';
• from about February 2018, the applicant resided in a serviced apartment, arranged by his mother;
• the applicant commenced associating with regular drug-users and spent approximately $85,000 of the TAC settlement money;
• the applicant's parents, who are very supportive, report the applicant's behaviour following release on bail on 14 May 2018 to have been 'increasingly erratic', such that they were endeavouring to secure his admission to the Wyndham Vale Clinic (a private facility that provides mental health services).
13 Exhibited to Mr Hale's affidavit were the following:
• a report of Dr David Weissman, consultant psychiatrist, dated 21 April 2015 ('AH3');
• reports of Lori Shore, clinical and consulting psychologist, dated 24 August 2015, 2 May 2016 and 11 July 2017 ('AH1');
• a report of Dr Benjamin Chia, consultant psychiatrist, dated 8 May 2016 ('AH5');
• a report of Ms Robyn Stargatt, neuropsychologist, dated 21 November 2016 ('AH4');
• a report by Dr Keflemariam Yohannes, a clinical psychologist, employed by The Hader Clinic, date 4 June 2018 ('AH2');
• a copy of the Hader Clinic Family Handbook ('AH6').
14 It is unnecessary to recapitulate in detail the contents of the various reports. In general, they confirm that the applicant is afflicted with PTSD, an adjustment disorder, anxiety, depression, and a constellation of physical and cognitive deficits flowing from his traumatic brain injury.
15 Of particular significance, however, Dr Yohannes, who is the Resident Clinical Psychologist at The Hader Clinic Bellarine Retreat, reported that the applicant commenced using methamphetamine ('ice smoking') at the age of 20, nitrous (inhalant) and cocaine since the age of 21, and GHB 'in the previous six months'. In the weeks leading up to his arrest, the applicant said he was using two to three grams of ice daily; large quantities of nitrous daily; Valium daily; two grams of cocaine per week; GHB daily; and was also bingeing on alcohol. In Dr Yohannes' opinion, the applicant meets the criteria for a diagnosis of Substance Use Disorder, and his 'poly substance use has likely been interfering negatively with his recovery from ABI, Adjustment Disorder and PTSD'. The applicant 'would benefit from participating in the Hader Clinic residential program where he will receive appropriate support'. Dr Yohannes describes the program as 'a 90-day abstinence based program in Geelong, followed by three to six months aftercare in the Hader Transitional Housing Program ('THP'). A treatment plan 'would involve weekly therapy from a clinical psychologist, daily group therapy and support from peers'.
16 Dr Yohannes also gave sworn oral evidence which complemented the contents of his report. He gave evidence that The Hader Clinic employs a 'dual diagnosis' or 'simultaneous treatment' method. Reduced to its essence, that method recognises that a substance use disorder 'is driven by something else' - whether that be PTSD, childhood trauma, adjustment disorder or other psychological problem - and 'you cannot treat one and leave the other, because these conditions, they amplify each other'. Dr Yohannes went on to describe the treatment regime that would be employed were the applicant to be granted bail on condition that he attend the clinic, which I need not repeat.
17 Mr Jackson Oppy, the General Manager of The Hader Clinic, also gave sworn evidence. He, too, spoke of the 'dual diagnosis' method employed, and described the program to which the applicant would be subject if granted bail conditioned upon his participation. It is unnecessary to set out much of his evidence, but he described the regime to which the applicant would be subject as follows:
... So it's 24-hour staffing, multiple support workers, multiple therapists, managers, it's a seven in the morning to 11 o'clock at night program. Zach has a timetable like on school camp. Every moment of his day is scheduled, at any time of the day we can pinpoint where he is. That's fully supervised by staff. The facility itself is motion-sensor camera-ed (sic.). The design of the building makes it easy to do that. We have cameras on all externals, all internals. The only time he's not supervised by a staff member would be when he's either visiting the bathroom or he's asleep at night, and we have a lights out at 11 o'clock, shut down, there's no one wandering, if he comes out of his room he's picked up by motion sensor cameras, he doesn't leave the property for any reason unescorted. We do all that we can to provide supervision and security without it being a locked facility, Your Honour. It's illegal for us to keep people locked. The building is locked from the outside. For fire and OHS there needs to be quick-release doors from the inside, but then of course we have an alarm that comes through to the office. So I can frankly say, Your Honour, doing all that we can, and go above and beyond to provide supervision and security without being a secure lockdown facility.
... If he was (sic.) to depart via a door there's an alarm. At night those cameras will pick up his movement. In normal practice Your Honour, it's unlikely that someone is gone for more than half an hour to an hour before we pick it up. During the day it's less than that, and then we have very strict policies and procedures in place. We immediately contact the local police, we have a good relationship with them. We immediately contact the informant
... There's no discretion there Your Honour, if someone steps off the property and the term we use is breach their bail conditions, we're obliged to notify the informant straight away.
Where there is some discretion, Your Honour, is that - people's engagement. We need to make a clinical assessment. He may not be at counselling days because he's been uncooperative or he's not well enough, so we'll clinically make that. But as far as security breaches or leaving property, there is no discretion Your Honour. ... We let them know that unfortunately the applicant is no longer suitable for treatment, and seek their direction. And often that is they'll contact the Geelong Police Station, Geelong Police Station will arrive, they'll come in our office, we'll then go and ask the applicant to come to the office, I walk into the office and see the police there and realise that they're going back to custody.
18 Under cross-examination, Mr Oppy gave evidence that the applicant's urine would be tested for drugs three times per week, and it is 'virtually impossible' for someone to be using drugs and that fact 'not be picked up'. Mr Oppy also said that if the applicant refused a urine drug screen that would be 'considered a positive result and the police would be called and he would be returned to custody'. He said that was a 'cardinal rule' for which there was 'zero tolerance'. Such rules include drug use, sexual activity, violence, theft of another person's property and leaving the clinic property unsupervised.
19 Importantly, counsel for the applicant elicited an undertaking from Mr Oppy in the following terms:
All right, can I just put a form of words to here? Do you, on behalf of the [Raymond] Hader Clinic, undertake to the Supreme Court to abide by the procedures of the clinic, and in particular to immediately notify the informant and the closest police station to the clinic [if the applicant] breaches the Clinic's security protocols, and in particular leaves the premises without an approved escort?---I do Your Honour.
20 It will be appreciated from the foregoing that the centrepiece of the application for bail was the proposal that the applicant reside at the Hader Clinic - a drug and alcohol rehabilitation centre - under a 90 day residential rehabilitation program. During his stay at the clinic, the applicant would be monitored. If he left, the police would immediately be notified. Thereafter he would take part in the THP. The Court was informed that the applicant 'is able and wishes' to pay for the cost of the program (some $20,500). And it was contended that the applicant 'perceives there to be long term benefit to him in completing the program'.
21 The applicant's mother, Gabrielle Gloury, gave evidence that, after his release on bail for the offences of 14 May 2018, the applicant 'was delusional, irrational, violent, extremely emotional'. His behaviour was such that his parents' intention was 'to seek to have him put into some sort of treatment' and then seek a variation of bail to accommodate that change in circumstances. Arrangements had already been put in train to have the applicant admitted to the Wyndham Vale psychiatric facility when he was once more arrested. Ms Gloury testified that in the two months or so that the applicant has been held in custody, the applicant is
far more contained, much quieter, um, speaking in far more of the normal way. He's not delusional in terms of what his life may or may not be. Um, he's had - well, he's had conversations with his father where he's apologised to his father and - and has said that he actually understands now that he treated him really badly, and that he was particularly cruel to his father. Um, he's - at times he has - he's been quite insightful and - and he's talked about that fine balance of - of, um, that - in terms of how you cope with prison - that it's a very fine line between thinking about what you miss out on and thinking about how you survive in prison. Um, so he's - he's clear headed, he's cleaned himself up. Um, he's put on about 12 kilos since he's been in gaol. Um, he's just a lot more, um, logical and clear thinking. He's clear eyed, he looks healthy.
22 Section 4 of the Bail Act 1977 ('the Act') makes plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail.
23 Where a person is accused of a Schedule 1 offence (as is the applicant), s 4A(1) provides that the Court 'must refuse bail ... unless satisfied that exceptional circumstances exist that justify the grant of bail'. In considering whether exceptional circumstances exist, the Court must take into account the 'surrounding circumstances',[15] the burden of satisfying the Court that exceptional circumstances exist resting on the applicant.[16] Trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity is a Schedule 1 offence.[17]
24 Trafficking in a drug of dependence that is not a commercial quantity is a Schedule 2 offence.[18] By virtue of s 4C, the Court must refuse bail for a person accused of a Schedule 2 offence 'unless satisfied that a compelling reason exists that justifies the grant of bail'.[19] Once more, in considering whether a compelling reason exists, the Court must take into account the 'surrounding circumstances',[20] the burden of satisfying the Court that a compelling reason exists resting on the applicant.[21]
25 If the Court is satisfied either that exceptional circumstances exist that justify the grant of bail in relation a Schedule 1 offence, or that a compelling reason exists that justifies the grant of bail for a person accused of a Schedule 2 offence, s 4B(1) and 4D(1) of the Act respectively require the Court to apply 'the unacceptable risk test'.
(i) endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
27 In considering whether any relevant risk is unacceptable, s 4E(3) requires the court to take into account the 'surrounding circumstances', and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk. Thus, by reason of s 3AAA of the Act, this court:
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused -
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force -
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g) the accused's personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;[[23]]
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
28 Further, when interpreting the Act, the court is required by s 1B to take into account (among other things) that:
The Parliament recognises the importance of -
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; ...
29 As I have mentioned, the applicant is not required to show an absence of unacceptable risk, the burden of establishing an unacceptable risk resting with the prosecutor. Any grant of bail must carry some risk.[24] Thus, the court must evaluate the suggested risk in order to determine whether it is an unacceptable risk. Of some importance, the Act recognises that some risks may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.
30 The concept of exceptional circumstances is an elusive one.[25] But, as Beach JA observed in Ceylan,[26] it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[27] One matter that has often been regarded as important in this context, is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.
31 As I have mentioned, the affidavit material discloses that the applicant is 23 years of age and has no prior criminal history. He suffers from an acquired brain injury resulting from a car accident in 2014. Following this accident, the applicant developed a number of further health complications, and developed an addiction to both prescribed and illicit drugs. After a second car accident in November 2017, his behaviour was erratic. He chose not to live with his parents, instead choosing to live in his car or to 'couch-surf'. From February 2018, the applicant lived in a serviced apartment organised by his mother. He has spent approximately $85,000 of his TAC settlement money. Importantly, the applicant struggles with severe substance-use disorder, having commenced using methamphetamine at the age of 20, cocaine (and other drugs) at the age of 21, and, more recently, GHB. His behaviour immediately following release for the offences of 14 May 2018 was delusional, irrational, violent and extremely emotional. Since his remand in custody, however, the applicant has become clear-headed, and more logical and clear thinking. He has also gained weight, and looks clear-eyed and healthy.
32 In opposing bail, the respondent submitted that the applicant had not demonstrated exceptional circumstances to justify the grant of bail. Furthermore, it was submitted that the applicant posed an unacceptable risk of committing an offence whilst on bail. The respondent stressed that, whilst the applicant has no criminal history, he committed the offences of 21 May 2018 only one week after being granted bail in relation to very serious charges, despite assurances from his parents that they would 'keep him grounded and out of trouble'. Additionally, the respondent expressed concerns regarding the applicant's proposal to reside at The Hader Clinic; in particular, that he will be able to 'walk freely out of the clinic as he pleases, whenever he wants'.
33 As earlier mentioned, the fact that the applicant faces charges for Schedule 1 offences arising out of alleged offending on 14 May 2018 means that he is now required to show exceptional circumstances which justify the grant of bail. And the fact that the applicant allegedly committed further drug-related offences within a week of being granted bail patently bears on the issue of unacceptable risk, and presents a substantial obstacle standing in the applicant's way. That said, however, whilst acknowledging that any charge of trafficking in a commercial quantity of a drug of dependence must be regarded as serious, on its face the offending alleged against the applicant is far from being within the most serious category of that type of offending. Moreover, although I find it difficult to determine the strength of the prosecution case at this stage, it does not appear to me to be inevitable that the applicant ultimately will be convicted of trafficking in relation to a commercial quantity of a drug of dependence flowing from his activities on 14 May 2018.
34 On the credit side of the ledger, the applicant is without prior convictions, and comes from a good background with a very supportive family. Of some significance, I regard the applicant as having a 'special vulnerability' flowing from his traumatic brain injury, and its accompanying cognitive deficits. His mother's evidence made clear to me that when he was released on bail without any support services to deal with his overall condition, the applicant was delusional, irrational and emotional, to an extent that his decision-making capacities were significantly compromised. Very importantly, however, treatment services are now available to deal with the applicant's manifold psychological difficulties.[28]
35 Any deprivation of a person's liberty is a serious thing. So much is recognised by the Act. Hence, whilst I must construe its provisions taking into account the importance of 'maximising the safety of the community and persons affected by crime to the greatest extent possible', I must also take account of 'the presumption of innocence and the right to liberty'. Moreover, I consider the right to liberty to be of particular importance when the court is faced with a relatively young man such as the applicant, possessing his physical, psychological and cognitive attributes. Indeed, in my opinion, the nature and extent of the applicant's ABI, and its consequences for his functioning, which - when taken with other factors such as the availability of treatment - establish exceptional circumstances justifying a grant of bail. Although it might be observed that there is nothing particularly exceptional about an applicant for bail being an addicted polysubstance abuser afflicted by a range of psychological disturbances, the applicant's traumatic brain injury - for which he bears no responsibility - with its attendant physical and cognitive limitations, makes this an exceptional case.
36 The applicant having satisfied me that exceptional circumstances exist that justify the grant of bail, I turn to consider whether the respondent has satisfied me that the applicant poses an unacceptable risk of committing an offence whilst on bail.[29]
37 As I have said, any grant of bail must carry some risk. And the regrettable fact is that, within days of being granted bail for allegedly trafficking in not less than a commercial quantity of ice and GHB, the applicant again allegedly was involved in drug trafficking. The evidence of Dr Yohannes and Mr Oppy satisfies me, however, that any risk of the applicant offending while on bail can adequately be ameliorated by strict conditions of bail; and in particular, conditions requiring the applicant to reside at The Hader Clinic and be subject to the clinic's treatment regime. It might be thought that making it a condition of the applicant's bail that he subject himself to the clinic's rigorous program somewhat paradoxically constitutes a significant infringement of his liberty. Given the conditions that the court will impose, however, the restrictions on the applicant's liberty will be more limited than if he were to be remanded in custody.
38 The application for bail is granted on the applicant's own undertaking, with special conditions that the applicant:
(i) undergo such urine drug screens as directed by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(ii) not leave the premises of The Hader Clinic, 6 Townsend Road, St Albans Park, unless for a purpose authorised by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(iii) at all times if absent from The Hader Clinic, 6 Townsend Road, St Albans Park, be in the company of Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(iv) receive only such visitors as are approved by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(i) have no more than one mobile telephone, the number of which is to be supplied to the Informant within 24 hours of obtaining same;
(ii) the mobile telephone service must be subscribed in the applicant's name and with his current address.
[1] A commercial quantity of pure methylamphetamine is 50 grams, but 250 grams in a mixture with another substance: see Part 3, Schedule 11, Drugs, Poisons and Controlled Substances Act 1981.
[2] A commercial quantity of GHB in a mixture is two kilograms: see Part 3, Schedule 11, Drugs, Poisons and Controlled Substances Act 1981.
[7] Firearms Act 1996, ss 6(1), 6(2) and 129A.
[19] As to the meaning of 'compelling reason', see Re Ceylan [2018] VSC 361, [47]-[48] (Beach JA) ('Ceylan').
[23] Section 3AAA of the Act defines a vulnerable adult to include a person 18 years of age or more, who has a 'cognitive' impairment 'that causes the person to have difficulty in ... making a decision'.
[24] Robinson v The Queen [2015] VSCA 161; (2015) 47 VR 226, 244 [65] (Priest JA); Re Guirguis [2015] VSC 242, [43] (Priest JA); Re FA [2018] VSC 372, [12] (Priest JA).
[25] In DPP v Cozzi [2005] VSC 195; (2005) 12 VR 211, 214 [18] ('Cozzi'), Coldrey J described it as 'an illusive one'.
[27] See also Cozzi, 215-16 [22]-[25].
[28] An uninformed cynic might observe that, given that the applicant's condition has apparently improved whilst he has been in custody, that is a factor bearing upon whether bail should be granted. In much the same way, however, that imprisonment cannot be imposed to cure disease - see Freeman v Harris [1980] VicRp 30; [1980] VR 267, which involved addiction to heroin - I consider that it would be wrong in principle to remand a person in custody for the purpose of effecting a cure for a medical or psychological condition.
[29] Given that I have found that exceptional circumstances exist which justify the grant of bail, it is unnecessary to consider separately whether the applicant has shown compelling reasons. As Beach JA pointed out in Ceylan (at [45]), plainly the 'exceptional circumstances' test in the Act is intended to be one that is more difficult to satisfy than is the 'compelling reason' test.