Re Hamilton-Green [2021] VSC 484 (12 August 2021)

2 At the time of the alleged offending in the Fenby matters, the applicant was on bail for charges of possessing a drug of dependence (two charges); handling stolen goods and making a false document, arising from a search warrant executed at her residence on 28 August 2020 ('the Relf matters'). She was also subject to an 18-month community correction order ('CCO') for possessing a drug of dependence and various dishonesty offences, imposed in the County Court on 15 November 2019. The CCO has since lapsed. I note the Relf matters do not involve allegations of trafficking drugs.

3 On 14 July 2021, the applicant filed an application for bail in this Court. She had been refused bail in the Melbourne Magistrates' Court the day before, on the basis that she failed to establish exceptional circumstances that justified the grant of bail and was considered to be an unacceptable risk of committing an offence whilst on bail.

4 Presently, the Fenby matters are next listed for committal mention in the Melbourne Magistrates' Court on 6 September 2021. The Relf Matters are next due before the lower court on 19 August 2021.

5 When interpreting and applying the Bail Act 1977 ('the Act'), the Court is required to have regard to the guiding principles set out in s 1B.[1] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.[2]

6 The applicant is entitled to bail unless the Bail Act 1977 ('the Act') requires the Court to refuse bail.[3] In the present application, because the applicant is charged with a Schedule 1 offence under the Act,[4] the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[5] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[6]

7 In considering whether exceptional circumstances exist, the Court is required to take into account the 'surrounding circumstances', including those set out in s 3AAA of the Act.[7]

8 To reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail'.[8] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[9]

9 If satisfied as to the existence of exceptional circumstances, the Court must then address the 'unacceptable risk test'.[10] That is, pursuant to s 4E of the Act, the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail -

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(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.

10 To determine whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the 'surrounding circumstances' in s 3AAA of the Act 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.

11 Relevantly, at the heart of this application is the applicant's proposal to reside and receive treatment at a residential rehabilitation facility. In the recent matter of Re Jiang,[11] involving an applicant who was also charged with serious drug-trafficking and related offences, and similarly had a history of addiction and was proposing to engage in treatment at a residential rehabilitation facility, Lasry J made the following observations with reference to the Court of Appeal decision in Robinson v The Queen:[12]

In Robinson v The Queen, the Court of Appeal, in considering an appeal against a refusal of bail in circumstances similar to this case, observed:[13]

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining in a supervised treatment facility and participating in drug rehabilitation. ...

I pause to note that a grant of bail being conditional on an applicant remaining in a residential rehabilitation centre is no longer most unusual. Their Honours continued:[14]

... Not only does such a condition severely restrict the person's freedom of movement and association but - on the positive side - it means that the pre-trial period can be used constructively to tackle the person's drug addiction. In this case, as in so many others like it, [the applicant's] drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to [the applicant] if he remained in custody.

Having indicated that he would consent to these conditions, [the applicant] had demonstrated in two different - but related - ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate the risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.

The Court of Appeal's observations are applicable to this case... The applicant's release on bail will be conditional on him being released from custody directly to [the residential rehabilitation facility] to commence four months of residential rehabilitation.

At the expiration of the applicant's time at [the residential rehabilitation facility], the matter will return to this Court, first, to review the applicant's performance in residential rehabilitation and, second, to hear further argument about the applicant's proposed residential arrangements between him leaving [the residential rehabilitation facility] and his County Court trial commencing. In the event that the applicant breaches his bail conditions during the four months that he is at [the residential rehabilitation facility], the breach will be immediately reported to the informant(s). The applicant can be under no misunderstanding that if there is any non-compliance with the directions of staff at [the residential rehabilitation facility], his bail will be revoked and he will return to custody.[15]

12 Against this background, and in the circumstances particular to that case, Lasry J concluded that the risk which might otherwise be considered unacceptable was rendered acceptable through the imposition of appropriate conditions of bail including as to residential rehabilitation.[16] In this way, for the reasons described by both the Court of Appeal and Lasry J, residential rehabilitation facilities may be viewed in the matrix of surrounding circumstances considered to be relevant to risk mitigation. Each case will turn on its own facts.

13 At 20 April 2021 at 9.00am, the applicant arrived home at her Oakleigh South residence. She was met by police officers who seized her phone and advised that they intended to search the residence, which they did. The applicant was asked if there were drugs inside, which she confirmed. She then led investigators to her bedroom, where she retrieved a pencil case, 'zip up case' and shoe box from her wardrobe and placed them on a set of drawers, stating, 'It's in here'. Police seized a number of items from the applicant's bedroom, including the following:

(a) 660 grams of methylamphetamine (purity unknown);

(b) 'small quantities' of cocaine, ecstasy, 1.4 butanediol and ketamine;

(c) prescription medications, including 150 xanax tablets and nine clonazepam tablets;

(d) drug trafficking paraphernalia, including snap-lock bags, scales and diaries with 'tick books';

(e) identification documents in the names of third parties;

(f) a second phone; and

(g) $40,790 cash.

14 The applicant's housemate, Callum Savio, was home at the time. In his bedroom, police located 1 litre of 1.4 butanediol; 1,150 xanax tablets; an unspecified 'small' quantity of methylamphetamine and a handgun. It is understood that he was arrested, although the charges against him are being pursued separately to the present matter.

15 Investigators also located 12 bicycles in an outdoor area of the residence, which are believed to be the proceeds of crime.

16 The applicant was arrested and deemed unfit to be interviewed in the context of potential substance intoxication, overdose and exhaustion. She was medically assessed at Box Hill Hospital and discharged that evening, at which time she was remanded in custody.

17 On 13 May 2021, police undertook a preliminary examination of one of the applicant's phones, revealing images, notes and conversations said to be indicative of trafficking activities.

18 The applicant is 38 years of age. She has a seven year old son who was placed into the care and custody of the Department of Families, Fairness and Housing following her arrest in this matter. He is now in the care of the applicant's mother, who was residing in Queensland and has since moved to Victoria to be closer to the applicant.

19 The applicant was raised primarily by her mother and did not meet her father until she was 12 years old. She endured significant traumatic experiences from the age of 15, being subject to sexual assault at the hands of a sporting coach, which was an event that played out publicly through the criminal justice system. She was also raped, resulting in pregnancy and a decision to abort her baby. Secondary to these events, the applicant developed an eating disorder and was prescribed anti-depressant medication due to struggles with suicidal rumination. She commenced using alcohol and cannabis and eventually graduated to methamphetamines.

20 At the age of 25, the applicant participated in a residential rehabilitation program for addiction. Upon exiting the program, she managed to abstain from the use of illicit substances for three and a half years. During this time, the applicant obtained a nursing degree.

21 In 2011, the applicant's partner died by suicide. This led to a relapse in her substance use and consequently the revocation of her nursing registration. It was during the period that followed that the applicant became pregnant with her now seven year old son. While she managed to abstain from substance use during pregnancy, this was not sustained.

22 Throughout 2020, the applicant reported a positive trajectory in her abstinence and was engaging well with her CCO. However, she is said to have relapsed again in the context of multiple stressors, including a miscarriage and relationship breakdown, COVID-19 lockdowns and home-schooling responsibilities.

23 As indicated, if bail is granted, the applicant proposes to address her issues with addiction at the Windana Therapeutic Community.

24 The applicant has a criminal history which, with the exception of a single matter in 2001, is confined to dispositions between 2018 and 2019 for matters of dishonesty, drug possession, driving and bail offences.

25 The applicant's mother, Ms Barbara Green, gave evidence in support of the application for bail. Ms Green confirmed she is aware of the charges faced by her daughter, though noting she is not familiar with all the detail. She gave evidence about the traumatic experiences of the applicant during her childhood, which led to her daughter having to give evidence in a court room setting as a teenager.

26 Ms Green gave evidence that her daughter had excelled at sport and represented Australia in athletics when she was young. She noted that it was in the context of her athletics discipline that the applicant was offended against by an adult sporting coach. Ms Green described her daughter as having been a very talented athlete who received a scholarship to a private school in Melbourne. She gave evidence that the applicant, having been talented at sport and a very good student, exhibited behaviour changes which led to her expulsion from school at the age of 14 or 15. Further, Ms Green indicated that the applicant also experienced an eating disorder and exhibited very strange behaviour.

27 Ms Green confirmed that, at the approximate age of 25, the applicant spent a significant period in the residential rehabilitation program offered by Windana. She stated that the applicant completed that program well and left the program 'really alive', wanting to achieve and succeed and regretting the path that her life had taken. The applicant went on to complete a nursing degree at Monash University, coming second in her class. After graduating from her course, she worked at The Avenue Hospital for a number of years before her son was born, after which she returned to the hospital on a part-time basis.

28 Ms Green puts down the applicant's deteriorating behaviour to two incidents, being the suicide of one friend and the killing of another in a shooting incident at the applicant's house, during an argument that occurred in her absence. Ms Green stated that the applicant felt a sense of responsibility and sadness as the events had occurred at her home. She also gave evidence that the applicant terminated a pregnancy in her later teenage years.

29 Having lived in Queensland, Ms Green has now returned to live in Melbourne and presently cares for the applicant's son in Oakleigh South. She gave evidence that the applicant's son is now enrolled in school and misses his mother, who is currently on remand. Ms Green plans to remain in Melbourne to await the outcome of her daughter's court matters.

30 Ms Green gave evidence that she paid approximately $5000 to the rehabilitation facility, The Cottage, for an assessment relating to her daughter's then proposed residential rehabilitation at that facility. She is also prepared to become a surety to the extent of $20,000. Further, Ms Green gave evidence that, should the applicant be granted bail, she would contact the authorities in the event of non-compliance with any bail conditions. Ms Green retains confidence that, if granted bail, the applicant would not breach her undertaking.

31 Ms Green gave evidence that, during the significant lockdown period in Melbourne in 2020 due to COVID-19 restrictions, she was of the view that the applicant was doing really well and that she and her son seemed very happy. She noted that the applicant was in a relationship which has now ended, but indicated that she does not know why that happened.

32 During cross-examination, Ms Green agreed that she was unaware that police executed a warrant at the applicant's premises and found drugs in August 2020. She noted that she was living in Melbourne at this time for about six to eight months before moving to Queensland. Ms Green stated that, during this period, she saw the applicant's son a number of times each week and spoke to the applicant on the telephone, noting that the 5km travelling zone made things more difficult.

33 In relation to the execution of the warrant in 2021, Ms Green stated that if the applicant's son had not been involved on that day, she was unsure whether her daughter would have informed her about the police raid. She gave evidence that the applicant has tried to keep her out of 'any bad stuff that's happening in her life'. Ms Green noted that, when she resided in Queensland earlier this year, she would speak to her grandson at least once or twice a week, but not the applicant very much. She stated that her grandson seemed happy during that time.

34 Ms Green confirmed that she understood her obligations as a surety and confirmed that she would notify any breaches of bail to the police. Further, she confirmed she was aware that she may lose her $20,000 as a result of a breach.

35 Jennifer Rollings, interim Assistant Manager of Rehabilitation Services at Windana, also gave evidence at the hearing of the application. She confirmed that the applicant is approved to attend the Windana Therapeutic Community located at Maryknoll and has an offer of admission to the long-term residential program offered by that organisation. This evidence was consistent with a letter written by Ms Rollings dated 7 August 2021, which was provided to the Court.

36 Ms Rollings confirmed that the applicant has previously been a resident in the Windana program and is aware of the requirements, expected level of participation and commitment expected from all members of the Windana community. Further, her letter and evidence provides considerable detail about the history of the organisation, the way in which it is funded and supported by government and philanthropic means, the current way in which the facility operates and what is now offered to the applicant.

37 Ms Rollings indicated that the facility is located in a rural setting, with a significant level of oversight and physical supervision of the residents by staff and also co-residents. She noted that the level of supervision and control includes random drug screens. Further, Ms Rollings gave evidence of the daily programs the applicant would be expected to undertake. The entire program would take nine to twelve months to complete and involves an element of after-care, including a highly structured and supervised program at a Windana property in Pakenham. Ms Rollings described the program as requiring full engagement and as a 'fairly intense' social environment. She confirmed that the applicant expressed a desire to engage in the long-term program that would enable her to look at her behaviours and take steps towards making changes in her life.

38 Ms Rollings indicated that funding for the placement of the applicant at Windana involves a proportion of the applicant's Centrelink payments and funding from ACSO. She clarified that funding does not involve relying on the applicant providing resources.

39 Further, Ms Rollings confirmed that the applicant had been previously admitted to a Windana program for a three month period in 2019. Further, she had attended a Windana withdrawal program from 2008 to 2009 followed by a period of abstinence for a number of years. While acknowledging that the applicant has had two previous engagements with the Windana program, and apparently relapsed into drug use, Ms Rollings stated that the applicant has recently expressed a desire to change her life and engage in a long-term program, as well as satisfying some basic requirements for admission into the program.

40 The applicant provided a handwritten letter to the Court to accompany her application for bail to the Windana facility. She outlined a number of reasons supporting her request to be provided with an opportunity to take part in the Windana program. In the course of the letter, she described a rapid decline in her mental health, which saw her fall back into the familiar darkness of drug addiction. She described that, whilst in custody for the current matters, she has been proactive in undertaking and accessing courses and programs to address her addiction issues, mental health and behavioural patterns.

41 The applicant asserted that, based on her past experience with rehabilitation, she has the capacity to make meaningful change in her life if she receives the right treatment, therapy and skills. Finally, the applicant sought to reassure the Court of her authenticity and genuine intent and desire to engage in structured and intensive treatment.

42 The applicant concedes that she is required to demonstrate that exceptional circumstances exist justifying the grant of bail in her case.

43 The Court received two affidavits from the applicant's solicitor Amara Hughes and a further affidavit from Chen Yang. The applicant also provided written submissions and made oral submissions at the hearing of the application. It is submitted that exceptional circumstances are made out by a combination of circumstances, pointing to the following factors:

44 The applicant concedes it cannot be argued that the prosecution case is other than strong. However, the applicant reserves the right to argue the admissibility of the alleged admissions and the legality of the police search, asserting that there may be a contested trial notwithstanding the apparent strength of the prosecution case. Further, the applicant specifically refers to the guiding principle in s 1B of the Act, which includes maximising the safety of the community and persons affected by crime to the greatest extent possible. Reliance was also placed on the presumption of innocence and the right to liberty, along with the significant delay awaiting trial.

45 The applicant has been on remand since 20 April 2021, with the matter next listed for committal mention on 6 September 2021. It is anticipated that a number of factors will contribute to delay in this matter, including issues of admissibility, delay in analysis of the applicant's second phone and the ongoing impact of COVID-19 on the criminal justice system. In this regard, the applicant referred to a County Court revised Melbourne Criminal Trial Listings document dated 20 July 2021. It is submitted that the delay in this matter may result in a trial date listing as far as mid-2023, which would amount to a delay of over two years from the date of arrest. Further, it was pointed out that further delay may be occasioned by COVID-19 restrictions and lockdowns.

46 It is conceded that should the applicant be found guilty of the alleged offending, she would expect to receive a sentence of imprisonment amounting to some years, with the imposition of a non-parole period. Nevertheless, it is submitted that the time she would serve on remand may be similar to a sentence of imprisonment that she may receive in the County Court.

Availability of treatment (residential rehabilitation)

47 Initially, the applicant sought to address her drug addiction through a residential rehabilitation at 'The Cottage' in Shepparton. Ultimately, this avenue was not pursued by the applicant. As above, the applicant has now placed before the Court evidence that a long-term residential drug and alcohol rehabilitation program is available at Windana and that she is willing to participate in the program offered.

48 It is submitted that it is not only in the interests of the applicant that she succeed in her endeavours to recovery, but also the interests of the community. It is further submitted that the applicant is an educated and intelligent woman who has demonstrated an ability to engage in and benefit from residential rehabilitation, and should be given the opportunity to do so in order to return to be a contributing member of society and a mother to her son.

49 Thus, with respect to the exceptional circumstances test, reliance is placed on the offer made by Windana for the applicant to participate in the residential rehabilitation program and the degree of structure and supervision that would take place at the facility. It is acknowledged that whilst the applicant had engaged with Windana on previous occasions, when regard is had to her past criminal record, her major offending behaviour occurred after 2018. It is noted that, by comparison, the applicant led a constructive life for a number of years, which included completing a bachelor's degree in nursing and being employed within the community.

50 It is submitted that the applicant's time on remand weighs particularly heavily on her due to the conditions of custody having been rendered even more onerous than they might ordinarily be due to the COVID-19 pandemic.

51 The applicant also relies on her personal circumstances, including her age and that has a seven year old son. Further, it is submitted that her drug-taking dates back to a younger age and is rooted in childhood trauma.

52 Further, it is contended that the applicant has demonstrated periods of abstinence from drug use, notably a successful graduation from the Windana Residential Rehabilitation program in 2008, which she entered voluntarily and not as a result of any offending. Having successfully completed that program, the applicant then completed a degree in nursing, thereafter working as an orthopaedic nurse at a private hospital in Melbourne for a number of years. Her registration as a nurse was suspended in 2018 as a result of her drug use and engagement with the criminal justice system that developed around that time.

53 The applicant acknowledges her prior convictions, which involve the imposition of a CCO in 2018, with a subsequent breach of that order, for which she was sentenced to two months' imprisonment with a CCO of 18 months. Further, it is acknowledged that during that 18 month period, the applicant is alleged to have committed the present offending. She had come close to completing 180 hours of community work and was towards the end of the 18 month period. It is further acknowledged that in 2018, the applicant was convicted of committing offences whilst on bail for offences alleged to have been committed in August 2020.

54 It is submitted that the applicant has demonstrated the ability to engage positively with rehabilitation and treatment, notwithstanding the further offending alleged against her. Further, it is submitted that the proposed residential rehabilitation is an important factor to the current application, as it represents a significant opportunity to break the applicant's cycle of offending that emerged around 2018 and following.

55 The applicant concedes a relatively minor prior conviction in 2001 which resulted in an adjourned undertaking, followed by no court appearances until 2018.

56 Further, the applicant relies on the support she will receive from her family, notably her mother, who has now moved her residence from Queensland to Victoria.

57 In general terms, it is submitted that the applicant's risk of committing further offences while on bail is ameliorated by the possibility of residential rehabilitation, where she would be living on site, with no access to drugs and regular urine screens. Should the applicant breach the conditions of her bail and not comply with her residential rehabilitation, the informant and the local police would be advised and act accordingly.

58 The applicant referred to the decision of the Court of Appeal in R v Roberts, referring to comments from the Court about unreasonable delays in the trial process and exceptional circumstances. Further, reference was made to the decision of Re AJ,[17] in which Jane Dixon J observed that, in a case where the male applicant was able to be placed at The Cottage, a sentencing court would be better equipped to approach the sentencing task with information about whether he had completed a program and was capable of rehabilitation, thus benefiting the community if his drug addiction was treated, even if he was to return to custody on conviction and sentencing on the relevant charges. The applicant in the present matter did acknowledge that while Re AJ involved the possession of cannabis, it did not concern trafficking in a commercial quantity of drugs.

59 Accordingly, it is submitted that when addressing the exceptional circumstances test, there is a benefit to the applicant, her family and the community if she was to be provided the opportunity of a 'circuit breaker' by way of residential rehabilitation. It is contended that engagement with residential rehabilitation on bail is a matter that the sentencing court can take into account.

60 In a further affidavit affirmed by Ms Hughes on 22 July 2021, the following additional matters were relied upon in support of the application:

(a) a $20,000 surety offered by the applicant's mother, Barbara Green, who is also willing to provide an undertaking to the Court to inform police if she became aware of any breach of bail conditions;

(b) family support, in that the applicant's mother and the applicant's son have recently returned to Victoria in order to be closer to the applicant; and

(c) the applicant's positive progress on a CCO prior to her remand, including completion of 156 out of 180 hours of community service and engagement in counselling to address her substance use and mental health.

61 The respondent opposes bail in the present matter. Before the Magistrates' Court, it was submitted that the applicant had failed to demonstrate exceptional circumstances that justify the grant of bail. However, before this Court, the respondent conceded that exceptional circumstances can be met in this case, though noting it is entirely a matter for the Court.

62 Even if exceptional circumstances are established, the respondent submits that bail should be refused on the basis that the applicant poses an unacceptable risk of committing further offences while on bail. At the outset of the application, the respondent indicated that it is no longer contended that the applicant represents poses a risk of flight to Queensland, as her mother and her son now reside in Victoria. Despite this concession, the respondent maintains that there remains an unacceptable risk of the applicant committing further offences if released on bail.

63 The respondent relies on the following surrounding circumstances:

64 The respondent submits its case against the applicant is strong, being a simple search and seizure case. The applicant not only admitted to the presence of drugs at her residence, but led police to their location in her bedroom. While formal analysis is yet to occur, it is submitted that the quantity of the substance alleged to be methylamphetamine significantly exceeds the threshold required for a commercial quantity.

65 Further, various items located in the applicant's bedroom were indicative of trafficking activities, including diaries with 'tick sheets' and detailed methodology for washing methylamphetamine, empty 'deal bags', significant cash and text messages on the applicant's phone. It is further submitted that two mobile telephones found in the applicant's possession are yet to be analysed, but may reveal she has been trafficking to a wider extent, thus elevating the seriousness of her situation. Even if the applicant's claims regarding the legitimacy of the cash and the bicycles seized are substantiated,[18] it is submitted that the case against her remains strong on the drug-related charges.

Nature and seriousness of the alleged offending

66 The allegations against the applicant involve serious charges, attracting a maximum penalty of 25 years. The respondent submits that the charges against the applicant do not arise from a single isolated incident, but stem from a longer-term pattern of drug related offending, that is at least partially profit-orientated.

Previous compliance with bail and other court orders

67 The respondent notes that the applicant was on bail for drug-related charges at the time of the alleged offending, and further, that her criminal history records dispositions for committing an indictable offence whilst on bail and contravening a CCO.

Availability of treatment and bail support services

68 The respondent notes that the applicant proposes to participate in treatment through the residential rehabilitation facility. In response to this proposal, it is submitted that the applicant:

(a) already has access to treatment on remand; and

(b) has previously had the opportunity to participate in drug rehabilitation programs and yet has continued to offend. It is submitted that, despite past efforts at rehabilitation, the applicant still finds herself trafficking substantial amounts of drugs, raising the issue of whether future residential rehabilitation is really going to assist the applicant.

69 It is conceded that there will be a delay in the matter progressing to trial, which will likely be in the order of 18 months to two years, with the matter may not reaching completion until mid-2023. The respondent notes that forensic testing results should be available in approximately four weeks, but that analysis of the applicant's second phone may take up to nine months due to her not providing its PIN.

70 It is submitted that the applicant has not particularised her contention regarding the onerous conditions in custody or how it goes to establishing exceptional circumstances.

71 In addressing the assertions on risk, the respondent submits the following:

72 The respondent refers to the fact that the present alleged offending occurred whilst the applicant was on bail. It is also noted that the applicant has a history of contravening court orders, including a CCO with conditions relating to treatment and rehabilitation, and has previously failed to attend mandatory drug-screening tests.

73 It is submitted that the applicant has a pervasive addiction which is likely to lead to further offending if she is granted bail, not only to feed her addiction but to fund her lifestyle in circumstances where she has no legitimate form of employment and is not in receipt of any government benefits through Centrelink. It is further noted that, prior to the applicant's arrest in the present matter, she had driven her son to school, notwithstanding that she was drug-affected and had stated to police that she had not slept in a week. It is submitted that this type of conduct has the propensity to endanger not only the applicant and her son, but members of the community generally.

74 The applicant faces very serious charges, the most significant of which is an allegation of trafficking in a commercial quantity of a drug of dependence. For the reasons put forward the respondent, the case against the applicant is essentially one of search and seizure, and as such, appears to be a relatively straightforward case with regard to the facts alleged.

75 On the other hand, the applicant asserts that there may be arguments to be canvassed in relation to the legality of the search and admissions made. Despite the possibility of the major charges being contested, it is nevertheless conceded by the applicant that the prosecution case appears to be a strong one.

76 It should be noted that the case is not just about the possession and use of drugs, but involves a serious allegation of commercial trafficking. The alleged offending involves a very significant amount of drugs, amounting to some 660gm of methylamphetamine, being almost twice the commercial quantity. However, it is noted that the mixture has not yet been analysed and that the degree of purity is not known at this stage. The respondent also points to the police finding $40,000 at the applicant's home, as well as other items arguably relatable to trafficking drugs.

77 In the face of an allegation of a serious level of trafficking, the evidence also suggests that the applicant has a significant addiction to drugs. On the evidence and arguments presented, it appears to me a reasonable conclusion that the applicant is alleged to have been engaged in the trafficking of drugs to support her own addiction. As such, the alleged offending appears to be significantly related to her own drug use.

78 The allegations that the applicant has driven a motor vehicle under the influence of drugs is of particular concern and a serious matter. Indeed, it should be regarded as a significant risk factor and a danger to the community. I have taken into account this aspect of risk associated with the applicant's drug use.

79 It is also of some considerable significance that the applicant appears to have ignored the welfare of her young son, who was living in the house where the drugs were stored. The danger posed to him is also concerning and a matter I have taken into account.

80 I accept the evidence of the applicant's mother that her daughter has been affected by some extremely difficult personal circumstances during her teenage and later years. As against those adverse circumstances, the applicant demonstrated an ability to gain a tertiary qualification and has worked in a responsible position in nursing. She is now a mature adult, not without intelligence and ability. Further, she has a seven year old son to care for, and this should be regarded as a protective factor.

81 I accept the evidence that the applicant has been offered a position in the Windana residential program, that she is suitable for involvement in the program and is motivated to engage. I am also satisfied that Windana is a credible organisation, capable of providing the applicant with programs that she appears to require and that would be of benefit to her. I am satisfied that the circumstances in the Windana program would involve a significant level of supervision and control of the applicant if she becomes a resident.

82 I have also taken into account the issue of the delay that is likely to occur before the applicant's charges are finally resolved. As is almost always the case, it is not entirely clear how her matters will progress and when they will finally be resolved. However, I consider there to be an appreciable risk that the applicant will spend a significant period of time on remand, which will be in effect 'dead time' and of limited value, other than to keep her confined and thus protect the community from the risk of her further offending.

83 As required under the Act, I have taken into account the surrounding circumstances with respect to my consideration of the exceptional circumstances test.

84 Taking into account all the circumstances, I am satisfied that the applicant has satisfied the exceptional circumstances test. In my opinion, the opportunity for the applicant to take part in the Windana program is a significant factor that was not before the magistrate in the lower court. It is my opinion that while no single factor in the applicant's case is capable of satisfying the test, all the factors put forward in combination satisfy me that exceptional circumstances are made out.

85 While the applicant has satisfied the exceptional circumstances test, the Court must now consider whether the applicant represents an unacceptable risk of committing an offence while on bail. In making this assessment, I have taken into account the surrounding circumstances as required under the Act.

86 In my opinion, the respondent has not satisfied me that the applicant poses an unacceptable risk of committing further offences on bail. As noted above, the risk of flight by the applicant has been specifically excluded from the argument as to unacceptable risk due to the applicant's mother having moved to Victoria to care for the applicant's son. It is notable that the respondent's case relies heavily on the risk of the applicant committing further offences.

87 The respondent's argument is not without merit in this respect. Over the past few years, the applicant has demonstrated a distinct lack of responsibility and disdain for the community, various court orders, and perhaps most importantly and shamefully, the interests of her young son. As against these aberrations, the applicant has another side, being one where she is intelligent and capable. She is blighted by addiction, and it seems to me that her offending must be seen in that context. As observed in Robinson, I am satisfied that the applicant's drug addiction is central to her offending behaviour. Looking to the longer term, if her addiction can be removed and other personal issues managed, it seems to me that the applicant has the capacity to return to a constructive life. Such an outcome would be in the interests of the applicant, her family and her community. She needs to unequivocally understand that the misery she has caused herself is exactly the misery she is alleged to have been inflicting on other people.

88 In my opinion, any unacceptable risk can be ameliorated by the imposition of significant conditions to the grant of bail. In particular, I am persuaded that the risk of committing further offences can be significantly reduced by the applicant undertaking the Windana residential program. In this regard, I adopt the comments made by the Court of Appeal in Robinson, as applied by Lasry J in Liang, both of which I have referred to above. It is my opinion that there is a significant mitigation of risk if the applicant engages with Windana and the prospect that her recovery from addiction may be promoted.

89 Accordingly, I am of the opinion that the risk of the applicant re-offending, which might otherwise be regarded as unacceptable, is rendered acceptable through the imposition of appropriate conditions of bail. This will include the aspect of residential rehabilitation, as canvassed above.

90 Accordingly, I will allow the application and admit the applicant to bail on her own undertaking and with one surety of $20,000, on the following special conditions:

(a) She attend the Magistrates' Court of Victoria in Melbourne on 6 September 2021 for a committal mention and then surrender herself, 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 herself into custody.

(b) She remain remanded in custody until Monday 16 August 2021 on which date she is to be released into the care of a staff member from the Windana Therapeutic Community ('Windana').

(c) She reside at Windana at 254 Snell Road in Maryknoll, Victoria from Monday 16 August 2021 until the completion of the program ('place of residence').

(d) She not leave her place of residence unless in the company of a staff member of Windana or with their approval.

(e) She engage in treatment and comply with all lawful directions of the staff at Windana.

(f) She not use any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic), with the exception of treatment provided by Windana.

(g) She surrender any passport she may have within 24 hours to the informant and not apply for another passport.

(h) She not leave the state of Victoria.

(i) She not attend any points of international departure.

(j) She reappear before the Court for judicial monitoring to review her compliance with this order on 9 November 2021 at 9.00am, and any further dates this Court appoints during the course of this order.

[1] Bail Act 1977 ('the Act'), s 1B(2).

[2] Ibid s 1B(1)(a)-(b).

[3] Ibid s 4.

[4] Specifically, trafficking in a commercial quantity of a drug of dependence. See the Act, sch 1, item 6(b).

[8] Re CT [2018] VSC 559 [64] ('Re CT') citing with approval Re Sam [2017] VSC 91 [22].

[9] Re CT [65] citing with approval Re Fairest [2015] VSC 375 [17]-[8], [22].

[11] [2021] VSC 148 (Lasry J).

[12] [2015] VSCA 161 (Maxwell P and Redlich JA).

[15] Re Jiang [2021] VSC 148 [66]-[69] (Lasry J).

[17] [2021] VSC 291.

[18] The applicant reportedly indicated during the course of the search warrant being executed that the cash seized was derived from her involvement in sex-work, and that the bicycles were from her work 'fixing bikes'.