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[2018] VSC 803
General information, not legal advice.
Supreme Court of Victoria
2018-12-19
BEACH JA
Original judgment source is linked above.
CRIMINAL LAW - Bail - Threat to kill, contravene personal safety intervention order, commit indictable offence while on bail and contravene conduct condition of bail charges - Compelling reason - Requirement to establish a compelling reason - No prior convictions - Likely sentence less severe than time already served on remand - Compelling reason established - Whether unacceptable risk - Conditions of bail - Conditions of bail imposed to mitigate risk - Bail granted on conditions - Bail Act 1977, ss 1B, 3AAA, 4C and 4E.
1 The applicant is a 38-year-old man with no prior convictions. Until 21 August 2018, he lived in a Ministry of Housing flat in a block of flats in North Melbourne. He does not enjoy perfect mental health. The complainant is a neighbour who lives in the same block of flats, having moved in about two years ago. It appears that he also does not enjoy perfect mental health.[1]
2 The applicant and the complainant have been in dispute since 2017. The issue between them concerns the applicant's practice of wedging a communal security door open with a brick. The dispute has led to the complainant taking out a number of personal safety intervention orders ('PSIOs') against the applicant. The PSIOs prohibit the applicant from, among other things, stalking, assaulting or contacting the complainant, or touching his front door.
3 The prosecution alleges that at about 10:00 am on 21 August 2017, the applicant banged on the door of the complainant's flat and yelled out, 'get fucked'. The complainant contacted police. The applicant was arrested, interviewed by police, charged with contravening a final PSIO, and released on bail at about 12:40 pm. The bail included conditions mirroring the terms of the final PSIO.
4 Approximately 35 minutes after he was bailed, the applicant is alleged to have again banged on the front door of the complainant's flat. This time he is alleged to have yelled out, 'I'm going to fucking kill you'. The complainant again contacted police and again the applicant was arrested. Before being interviewed on this occasion, the applicant is alleged to have stated that he was high on cannabis. He was medically examined, and found unfit for interview. Later that day he was charged with the offences of making a threat to kill, contravening a final PSIO (two counts), committing an indictable offence on bail, and contravening a conduct condition of bail (two counts). He was remanded into custody. He has been in custody since 21 August 2018.
5 This morning, the applicant applied in this Court for bail.
6 This is the applicant's second application for bail in this Court. On 25 October 2018, Tinney J refused an application for bail heard on that day.[2] Much of the relevant background, and detail of the applicant's charges, is set out in his Honour's reasons for refusing bail. It is not necessary to repeat all of that detail in these reasons. It is sufficient to note the following.
7 In the hearing before Tinney J, and in the present application, it was common ground between the parties that the applicant bore the burden of establishing that a compelling reason exists that justifies the grant of bail.[3] Tinney J refused bail because he concluded that the applicant had 'fallen well short of establishing that a compelling reason exist[ed] that would justify the grant of bail'.[4] His Honour concluded that the circumstances as disclosed in the hearing before him 'clearly point[ed] to the need for the applicant to be kept in custody at [that] time'.[5]
8 His Honour went on to say, 'for the sake of completeness', that in any event he would have been satisfied that there was an unacceptable risk of the matters set out in s 4E(1)(a)(i)-(iii) of the Act, specifically in respect of the safety and wellbeing of the complainant.[6] His Honour went on to say, however, that he 'was refusing bail in the knowledge that':
[T]he applicant is next to appear at a contest mention at Melbourne Magistrates' Court on 18 December 2018. That is two months from now. Much could change in that time. Further material may become available which would supplement the currently inadequate information available about the applicant and the reasons for his apparent spree of offending, and perhaps give a Court more confidence than I have that he is capable of being at large without further offending. A further application for bail might be possible in the future. In addition, of course, there may be the possibility of resolution of these matters without the need for a contested hearing.[7]
9 The contest mention referred to by Tinney J was conducted yesterday. The matter did not resolve. The applicant's charges have now been fixed for a contested hearing on 6 February 2019. The applicant remains in custody. Thus the matter is again before this Court on the applicant's application for bail.
10 The applicant submits that when one takes account of the surrounding circumstances as required by s 4C(3) of the Act, a compelling reason exists justifying the grant of bail. The circumstances relied upon by the applicant include:
11 Additionally, counsel for the applicant observed that the applicant has abided by the terms of relevant PSIOs for a relatively lengthy period (12 months) before his first alleged non-compliance, and then for another relatively lengthy period between that time (5 February 2018) and 21 August 2018. Counsel submitted further, that the fact that the applicant was unlikely to serve a term of imprisonment, even if convicted on all charges was, of itself, sufficient to satisfy the compelling reason test.
12 On the issue of whether the applicant was an unacceptable risk of reoffending or endangering the safety or welfare of the complainant, the applicant relied upon the same surrounding circumstances he relied upon in relation to the compelling reason test, to contend that the Crown had not satisfied the onus of proving that there was a relevant unacceptable risk. Moreover, even if unacceptable risk was established, counsel for the applicant submitted that conditions of bail could be imposed to mitigate the risk so that it was not an unacceptable risk.[8]
13 The Crown submitted that the applicant had not established a compelling reason that justified a grant of bail. While it accepted that there was a real likelihood of the applicant ultimately being sentenced to a disposition less severe than the time he has currently spent in custody, the Crown noted that that consideration was only one of the many surrounding circumstances referred to in s 3AAA that was required to be taken into account by the Court.[9] Additionally, the Crown contended that there had been an escalation in the applicant's behaviour on 21 August 2018, and that this 'escalation' was in breach of both a PSIO and a condition of the bail granted on 21 August.
14 As to unacceptable risk, the Crown contended that the very history of the matter on 21 August 2018 demonstrated the unacceptability of the risk that the applicant would engage in further offending against the complainant, and/or endanger the complainant's safety or welfare. It was submitted that the complainant continued to suffer from a well-founded fear of the applicant, which fear continues to impact negatively on the complainant's mental health requiring additional treatment and medication.
15 In the hearing before Tinney J, the Crown conceded that it was open to the Court to conclude that a compelling reason[10] existed that justified a grant of bail. The concession was made largely on the basis that there was a 'real chance' that any term of imprisonment imposed upon the applicant would be less than the time he had served (or was likely to serve) on remand. That concession was fairly made. Moreover, the concession has greater significance now - the applicant having spent another two months in custody since the hearing before Tinney J.
16 The applicant is a man with no prior convictions. He is currently in custody because a dispute between him and his neighbour has allegedly led him to 'banging' on his neighbour's door (in breach of a court order and bail condition), and variously to making a threat to kill, and shouting out 'get fucked'. The applicant has had four months in custody to reflect upon his situation.
17 Without wishing to pre-empt any ultimate exercise of the sentencing discretion, if the applicant is convicted, it is very unlikely that he will be sentenced to a term of imprisonment in excess of the time he has already spent in custody. Indeed, but for the time he has already spent in custody, one might have expected that, in all of the circumstances, any sentence imposed on the applicant following conviction would be a non-custodial one.[11]
18 The fact that an applicant for bail might have already spent more time in custody than they are likely to be sentenced to on conviction is a very relevant circumstance in determining whether bail should be granted. Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is a compelling reason justifying a grant of bail.[12] For such a circumstance not to constitute a compelling reason in a particular case, one would expect there to be other significant countervailing factors or circumstances affecting the synthesis required to be performed in order to determine whether a compelling reason within the meaning of s 4C of the Act exists.
19 That is not to say that the likelihood of any sentence being less than time already spent in custody is determinative in favour of an applicant for bail who is required to satisfy the compelling reason test. The issue is an important one in the synthesis. However, it cannot determine the question. First, that is not what the Act says. Secondly, to allow the issue to be determinative would admit of the possibility of a particular applicant ignoring bail conditions on the assumption that bail would not be revoked because of the existence of an earlier (and perhaps lengthy) period of time in custody.
20 In the present case, I am satisfied that there is a compelling reason justifying a grant of bail. The applicant has now spent four months in custody for offending which, while serious, is at the less serious end of the spectrum of possible offending. He has no prior convictions and, while he is alleged to have breached bail conditions on 21 August, he has no negative bail history. It is, as I have already observed, very unlikely that the applicant will (if convicted) be sentenced to a term of imprisonment of the length of the time he has already served in custody. The circumstances of the applicant, and of his alleged offending, lead me to conclude that there is now a compelling reason for granting him bail. I turn now to the issue of unacceptable risk.
21 Section 4E of the Act requires the Court to refuse bail if the Crown establishes that there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, or commit an indictable offence while on bail, or interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender himself into custody in accordance with the conditions of bail; and the risk is an unacceptable risk.
22 The history of the present matter establishes that the relevant risk in this case is one of the applicant committing an offence against the complainant (either by banging on the complainant's door or by shouting abuse or threats directed at the complainant). The question is whether that risk is, in the circumstances of this case, an unacceptable one. That question falls to be resolved by whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not an unacceptable risk.[13]
23 There is an obvious solution to the present problem. It would involve those responsible in the Ministry of Housing for allocating public housing to move the applicant to premises away from the complainant. Such a step would almost certainly eliminate the possibility of any of the risks referred to in s 4E occurring. It is somewhat regrettable that this step has not been taken to date. Putting the applicant back in close proximity with the complainant is plainly not desirable, or in either of their interests.
24 That said, I am not satisfied that there is an unacceptable risk of the kind referred to in s 4E which cannot be appropriately mitigated by specific bail conditions tailored to the present circumstances. Those conditions will include a requirement that the applicant remain under the care of Forensic Mental Health Services (under whose care he has been since being received into custody in August) and hid own local area mental health service. Moreover, the applicant will be required to continue to accept psychiatric treatment as recommended or directed by those organisations.
25 Additionally, there will be a condition of bail that the applicant report daily to police. Such a condition is likely to remind the applicant of his obligations to comply with the PSIO currently in force, and to stay away from the complainant and the complainant's front door.
26 The Crown submitted that I should make it a condition of bail that the applicant comply with all of the conditions of the PSIO currently in force. Plainly, the applicant is by the force of the PSIO itself required to comply with its terms. A breach of the PSIO would constitute a basis for remanding the applicant again into custody.
27 Ordinarily, one would not make an order requiring a person to comply with another order.[14] In the present case, however, I think there is a basis for making it a condition of the applicant's bail that he comply with all of the conditions of the current PSIO. The condition has the capacity to further bring home to the applicant his need to comply with the PSIO and to stay away from the complainant.
28 There will be a grant of bail on conditions that include daily reporting to the police, compliance with the PSIO and treatment as directed by the Victorian Institute of Forensicare Mental Health and the applicant's local area mental health service.
[1] From a statement the complainant made to police, it appears that the complainant has an acquired brain injury as well as a post-traumatic stress disorder and an anxiety condition. From a CISP Remand Outreach Program Report, it appears that the applicant, on the other hand, has been diagnosed, in the past, as suffering from schizophrenia.
[2] Re Johnstone [2018] VSC 640 ('Reasons of Tinney J').
[3] See ss 4AA(3) and 4C, and item 30 of Schedule 2, of the Bail Act 1977 ('the Act').
[8] See s 4E(3)(b) of the Act.
[9] The length of time an accused is likely to spend in custody if bail is refused and the likely sentence to be imposed are the surrounding circumstances referred to in s 3AAA(1)(k)-(l) of the Act.
[10] As to which, see Re Ceylan [2018] VSC 361; Re Alsulayhim [2018] VSC 570.
[11] See the Sentencing Act 1991, ss 5(3), (4), (4C) and (6).
[12] Cf Re Magee [2009] VSC 384 [20] where J Forrest J concluded that the fact that an applicant for bail would likely serve more time on remand than would result from being convicted and sentenced was relevant in determining whether that applicant had shown cause why his continued detention in custody was not justified. See also s 1B(1)(b) of the Act, which requires the Act to be applied having regard to the importance of 'the presumption of innocence and the right to liberty'.
[14] See Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 49-50; Duthie v Nixon [2015] VSC 672; (2015) 47 VR 355, 366 [32]-[33].
(1980) 147 CLR 39
(2015) 47 VR 355