Re Laverick [2023] VSC 303 (23 May 2023)

2 The applicant is a 37-year-old woman who seeks bail on a total of 62 charges filed by informant Senior Constable Olivia Caso ['the remand matters']:

(a) handling/receiving/retaining stolen goods (19 charges);

(b) dealing with property suspected of being proceeds of crime (six charges);

(c) possessing a drug of dependence (13 charges);

(d) driving whilst authorisation suspended;

(e) possessing cartridge ammunition without a licence or permit (eight charges);

(f) possessing a prohibited weapon without an exemption or approval;

(g) using a false document;

(h) possessing a trafficable quantity of unregistered firearms;

(i) being a prohibited person in possession of a firearm (seven charges);

(j) trafficking in a drug of dependence (two charges);[1]

(k) trafficking in a commercial quantity of a drug of dependence (methylamphetamine);

(l) possessing a substance, material, document or equipment for trafficking in a drug of dependence; and

(m) possessing a precursor chemical (hypophosphorous acid).

3 These matters are next listed on 2 June 2023 at the Melbourne Magistrates' Court for a committal mention.

4 The applicant has been remanded in custody since her arrest in the remand matters on 1 December 2022. The applicant was refused bail on 9 March 2023 at the Melbourne Magistrates' Court, on the basis that she failed to show exceptional circumstances, and there was an unacceptable risk that she would commit an offence while on bail and/or endanger the safety or welfare of any person.

5 At the time of the alleged offending in the remand matters, the applicant was subject to summons for the following driving offences:

(a) Charges brought by Senior Constable Grant Fereday:

(i) drive while exceeding prescribed concentration of drugs present in oral fluid (methylamphetamine);

(ii) fail oral fluid test within three hours of driving; and

(iii) speeding by less than 35 km/ph.

(b) Charges brought by Senior Constable Rebecca Munzel:

(i) drive while exceeding prescribed concentration of drugs present in oral fluid (methylamphetamine); and

(ii) fail oral fluid test within three hours of driving.

6 The applicant is on summons for these matters. They are next listed for pleas of guilty at the Ringwood Magistrates' Court on 6 June 2023.

7 At the time of the alleged offending, the applicant was a prohibited person under section 3(1) of the Firearms Act 1996 (Vic).

8 On 30 November 2022, multiple power tools belonging to a man I will refer to as TP were stolen from a locked garage in Ivanhoe. One of the tools had a GPS tracking device in it (being an Apple Airtag). Using the Apple Airtag, TP found his tools at 8:15am on 1 December 2022 in the back of a Holden utility which was parked outside a factory at an address in Heidelberg West. He called police who attended and surveyed the vehicle. They saw a man walk from the factory to the utility to retrieve an item.

9 Shortly after at 8:30am, the applicant drove the utility away from the factory and police followed. She was intercepted and arrested in Preston. The applicant told police that there were drugs inside the vehicle. Police searched the vehicle and found the following:

(a) two ziplock bags believed to contain methylamphetamine inside the applicant's handbag;

(b) pills in the centre console and inside her phone case believed to be drugs of dependence; and

(c) TP's stolen power tools in the rear tray.

10 After the applicant's arrest, police returned to the factory in Heidelberg West and arrested the co-accused, Dale Morrison (who is also the applicant's partner). He asked to take two bags with him to the police station, in which police found over $50,000 in cash. They also observed other suspicious items around the factory.

11 On 1 December 2022, police executed a search warrant at the Heidelberg West factory and found the following:

(a) various items suspected of being stolen or proceeds of crime such as watches, cash, jewellery and identification in other people's names;

(b) a stolen truck with false registration plates;

(c) assorted ammunition and an extendable baton;

(d) multiple ziplock bags containing substances believed to be drugs;

(e) documents in relation to manufacturing homemade firearms; and

(f) equipment alleged to be associated with the manufacture of drugs. Fingerprints taken from some of this equipment were identified as belonging to the applicant and the co-accused.

12 Police identified that the applicant and the co-accused had been asked to vacate the Heidelberg West factory as it was to be sold, and suspected that they were in the process of moving to another factory in Kilsyth. On 2 December 2022, police viewed CCTV footage which confirmed the applicant's presence at that factory.

13 Police obtained and executed a search warrant on the same day at the Kilsyth factory, and found the following:

(a) stolen power tools and other items;

(b) equipment alleged to be associated with the manufacture of drugs including precursor chemicals. Fingerprints on some of this equipment matched the applicant and the co-accused;

(c) two jars believed to contain methylamphetamine; and

(d) six firearms and ammunition.

14 On 3 January 2023, police returned to search the co-accused's home in Doreen for a second time. Police located a British bulldog revolver handgun loaded with ammunition in a Holden utility at the property.

15 The results of forensic drug analysis were served on the applicant on 28 April 2023. The total quantity of drugs seized from the searches included 289.2 grams of methylamphetamine (of varying purities) and 10.7 grams of cocaine (28% pure).

17 On 13 May 2022, police pulled the applicant over while she was driving in Wandin North. She is alleged to have been driving 14 km/h over the speed limit. An oral fluid drug test detected the presence of methylamphetamine.

18 On 30 July 2022, the applicant was pulled over by police while driving along Burwood Highway. An oral fluid drug test detected the presence of methylamphetamine.

19 In determining an application for bail, the court is required to have regard to the guiding principles as set out in section 1B(1) of the Bail Act 1977 ['the Act'].

20 The parties agree that, in order to be granted bail, the applicant needs to satisfy the court that exceptional circumstances exist that justify the grant of bail pursuant to section 4AA(1) of the Act. This is on the basis that the applicant is accused of a Schedule 1 offence (namely, trafficking in a commercial quantity of a drug of dependence) in the remand matter. The applicant bears the burden of demonstrating that exceptional circumstances exist. In considering whether exceptional circumstances exist, the court must take into account all of the relevant surrounding circumstances, including those set out in section 3AAA of the Act.

21 If satisfied that exceptional circumstances exist, the court must then move to a consideration of the unacceptable risk test. The court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such a risk is unacceptable. In considering whether a risk is unacceptable, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable. I emphasise that the burden is on the respondent to satisfy this test.

22 I note in passing that the co-accused in this matter breached his parole by offending in the way alleged. He was on parole for possessing a firearm while being a prohibited person, trafficking in a drug of dependence and other related offences. He is presently on remand for the current alleged offending and has not applied for bail. The court was informed that he is the father of the applicant's child and that the pair have positively engaged in some supervised family planning sessions whilst both on remand.

23 The applicant is a 37-year-old woman. She is currently in her third trimester of pregnancy.

24 According to a Court Integrated Services Program ['CISP'] report dated 9 March 2023 provided by the applicant:

(a) the applicant has a history of daily methylamphetamine use, which she says was to manage her negative emotions and attention deficit hyperactivity disorder ['ADHD']. The applicant reported a two‑year period of abstinence previously, and her pregnancy is motivating her to be abstinent again;

(b) the applicant has diagnoses of ADHD, depression and anxiety for which medication has been prescribed. She has not been medicated while in custody, in part, due to concerns about the safety of the medication on her unborn child. The applicant wants to re-engage with her psychiatrist, Dr Michael Piperoglou, in the community; and

(c) the applicant discovered that she was pregnant approximately two weeks before her arrest and, as such, did not have any prenatal care services in the community.

25 I note that at the end of this report, the applicant was assessed as "not suitable" for intervention. It was submitted that this amounted to an error that has been corrected in the CISP report subsequently filed and dated 12 May 2023.

26 The 12 May 2023 report appears to include the same information as the earlier report, but the outcome of the assessment is that the applicant is recommended for case management with the Indictable Crime Stream based at Melbourne CISP.

27 The applicant has a relevant criminal history commencing in 2013. Specifically:

(a) the applicant's most recent matter was dealt with in March 2021. She was convicted of trafficking 1,4 butanediol and given a combined sentence of two months' imprisonment and a 12‑month Community Correction Order ['CCO']. The CCO was also imposed on the same day for drug possession and dealing with property suspected of being the proceeds of crime charges. She successfully complied with the terms of the CCO;

(b) in 2019, the applicant was convicted and fined for possessing methylamphetamine and fraudulent use of a registration label;

(c) in 2018, the applicant was convicted for driving whilst her authorisation was suspended; and

(d) in 2016, the applicant was convicted and fined for driving whilst her authorisation was suspended (three charges) and failing to answer bail (two charges). She also received an adjourned undertaking for possessing methylamphetamine.

28 The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.

29 The applicant submits that there are "significant triable issues" in the remand matters, which give rise to real hurdles in proving the alleged offending, particularly in relation to the charges of trafficking in a commercial quantity of a drug of dependence and possession of a traffickable quantity of firearms.

30 At hearing, it was submitted by the applicant's counsel that the applicant was not involved in the factories searched by police where the firearms, drugs and drug paraphernalia were located, as these are leased in the co-accused's name. It was also submitted that the charge of trafficking in a commercial quantity is unsustainable, being based on fingerprints located on a burner stove which could be used for cooking, as well as a single fingerprint on a beaker. As a result, it is submitted that there is an appreciable risk the applicant will spend longer on remand if denied bail than she may serve as part of any sentence that may later be imposed.

31 As at the date of the bail hearing on 9 May 2023, the applicant had been in custody for 159 days in relation to the remand matters. As above, the matters are next listed for a committal mention on 2 June 2023. The applicant submits that, should a committal hearing be listed at this mention, it will likely take place in mid‑2024. Noting the most recent published information from the County Court that a typical delay between a committal and a trial is between 14-16 months, the applicant expects a trial for the remand matters would not be heard until mid-late 2024, subject to any unexpected further delays. This could amount to a delay of close to two years between the applicant's arrest and the resolution of her matters. It was noted at hearing that there are still outstanding expert reports to be filed and there are likely to be delays given there is a co‑accused.

Onerous conditions in custody and family hardship

32 The applicant is in her third trimester of pregnancy and relies on there being no guarantee that she will be eligible for the "Living with Mum" program in prison. The applicant is due to give birth on 28 June 2023.

33 It appears there are presently no children at Dame Phyllis Frost Centre ['DPFC']. It was submitted that the applicant has applied to keep the child with her once it is born, if she remains in custody, but that the outcome of the application is unknown at this time and will likely take a number of weeks to determine.

34 It was also submitted by the applicant that she was initially unable to access any visits because of internal COVID‑19 restrictions at DPFC (which have since lifted). She contended that her time in custody has been more burdensome because of the lack of access to proper treatment for pregnancy‑related issues, particularly given her pregnancy is regarded as a geriatric one. These concerns will be discussed later in these reasons.[2]

35 The applicant further relies on family hardship because of her ongoing incarceration, as her father is terminally ill with prostate cancer. Mr Raymond Laverick gave evidence at the hearing, confirming he is terminally ill and receiving radiation treatment. He stated that, in the past, the applicant has been a good help around the house with cooking and cleaning and was a pleasure to live with. It appears she would be a source of comfort and assistance to her father if granted bail.

36 The applicant also drew the court's attention to several cases dealing with family hardship. In particular, the applicant submitted that the matter of Re Tiba (No 2),[3] where the applicant was charged with murder and other serious offences, involved comparable factors, such as delay, the applicant having strong family support and a limited criminal history, and where there were extenuating circumstances relating to family members being ill with COVID‑19. The applicant was granted bail.

37 Re Hammoud[4] was also referenced. This matter involved an applicant charged with murder, firearms offences and other serious offences, where, similarly, there were many factors that in combination lead to a grant of bail, namely: family hardship, limited history, strong supports, delay, special vulnerability due to poor mental health and onerous conditions of custody, and a surety.

38 I have taken these, and the other cases referenced in the documents filed by the applicant, into account.

39 The applicant relies on the fact that, at the time of the alleged offending, she was not subject to any court orders or police bail.

40 It was submitted that the applicant has successfully complied with bail conditions before, and lived with Mr Laverick at the address that she is proposed to live at were she granted bail for these matters.

41 The applicant submits that she has strong ties to the jurisdiction, the support of her immediate family and a stable address with her father in East Warburton if she is granted bail. The applicant has lived at this address before whilst on bail, and for a time worked at a local newsagent.

42 Mr Laverick gave evidence on this issue at the hearing. He stated he would be someone for the applicant to talk to, drive her to appointments, and be willing to contact police if he became aware she had breached any bail conditions imposed upon her, should she be granted bail.

43 The nominal police informant, Detective Senior Constable James Delianis, also gave evidence surrounding the proposed address. Mr Delianis attended the East Warburton address, spoke to Mr Laverick, and took photographs, which were provided to the court. Mr Delianis stated there was a fairly rudimentary dwelling at the property, with a campervan parked outside, where Mr Laverick would live were the applicant to be granted bail. This was said to be due to some concerns about the applicant's baby being exposed to Mr Laverick whilst he undergoes radiation treatment for his cancer.

Availability of treatment or bail support services

44 The applicant relies on the assistance that can be provided by CISP. The updated CISP report dated 12 May 2023 indicates this program is available to the applicant, and that a treatment plan has been organised should she be granted bail. This treatment plan involves engaging in case management with the CISP team, attending further assessment in relation to her substance use issues and attending her general practitioner to obtain certain referrals. The detail of the proposed assistance will be noted later in these reasons.[5]

45 The applicant submits that her father offers a "significant" surety of $100,000. This is to be provided by way of available equity in real property (namely, the East Warburton address). It appears that there is an encumbrance by way of a personal loan secured against the property, which is listed on the title. Mr Laverick gave evidence that this loan was discharged in 2009, but the encumbrance remains on the title. The applicant's counsel submitted that it may take some weeks for this to be removed from the title. Further, the rates notice for the property revealed that some $10,000 in outstanding rates were payable on this property to the local council.

46 To remedy concerns regarding these issues, the applicant's mother, Jennifer Brooks, also offered a surety of $100,000 using equity over her home in Queensland, which is jointly owned by the applicant's stepfather. A supplementary affidavit of surety dated 11 May 2023 was provided to the court to this effect.

47 It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including that the applicant:

(a) reside at the East Warburton address;

(b) comply with a curfew between 10:00pm to 6:00am, unless in the company of her father;

(c) present herself at the front door during curfew hours upon the request of police;

(d) follow all lawful directions of CISP;

(e) not contact any witnesses for the prosecution except the informant;

(f) not leave Victoria;

(g) not attend any points of international departure; and

(h) surrender any passport within 24 hours and not apply for another.

48 The application for bail is opposed on the basis that the applicant has not discharged the burden of demonstrating exceptional circumstances to justify the grant of bail, and there is an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail and failing to surrender into custody.

49 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.

50 The respondent notes that since the applicant was remanded into custody, police identified text messages on the applicant's phone to her mother about living in the relevant factories, which are said to be contrary to the applicant's claims at the previous bail application. The relevant messages state: "We are in the middle of moving factories from Heidelberg West to Kilsyth it's so much fun not. We are going to be living out of it for a little while while we save some money" and "We are only paying $1200 a month there so it will give us a chance to save as long as the electricity bill isn't to (sic) outrageous".

51 Second, it was stated that text messages between the applicant and the co‑accused suggest that she supplied him with firearms prior to their arrest.

52 Third, the respondent notes that the applicant's fingerprints were found on the clandestine laboratory equipment at the Heidelberg West and Kilsyth factories.

53 The respondent highlights that firearms were located where the applicant is alleged to have been frequenting (and living), and where the applicant and co‑accused are alleged to have been moving into at the time of their arrest. Further, the respondent submits that an analysis has been undertaken of the applicant's phone which shows references to guns, references to firearm manuals, and matters of that nature (though I note that these text messages were not included in the materials provided to the court), and CCTV footage that appears to show the applicant driving the truck with cloned plates that is alleged to have been used to deliver property, which all suggest the applicant was involved in the alleged operation to manufacture drugs.

54 The respondent notes that the applicant was convicted in 2016 with two counts of failing to answer bail. She has been charged previously with committing an indictable offence whilst on bail, however, it is noted this charge was ultimately withdrawn.

55 In response to the submission about family hardship, the respondent notes that police enquiries show that the applicant has not been living with her father for some time. Further, she sent him photos of equipment alleged to be used in the production of false registration plates. The respondent believes that the applicant's father has some knowledge of her criminal activity, and as a result, submits that living with him may not reduce the risk of the applicant re-offending.

56 In cross-examination of Mr Laverick, it emerged that he was not aware the applicant had been using drugs during the periods she had previously stayed with him.

57 The respondent relies on the nature of the alleged offending to submit that the applicant poses an unacceptable risk of endangering the safety or welfare of persons. In particular, clandestine laboratories pose a risk to the public in general and the supply of methylamphetamine impacts the health of those with substance abuse issues. Further, the quantity of firearms located, along with the incorrect manner in which they were stored, poses a risk to the public, including through the potential resale of the weapons to others who may use them to commit offences.

58 The respondent notes that the applicant was pregnant at the time of her arrest, and that this did not act as a deterrent. The respondent noted at hearing that there was also a risk to the applicant's unborn child.

59 The applicant has relevant criminal history for which she served a period of imprisonment in 2019. The respondent submits that the current similar charges demonstrate that the previous term of imprisonment did not deter her.

60 It is submitted that the applicant has the necessary connections and reasons to continue offending in a similar way if granted bail. First, the applicant and the co‑accused have associates who are believed to supply them with stolen goods in exchange for drugs or money. Second, messages on the applicant's phone suggest that she and the co-accused have an outstanding debt, which could motivate the applicant to continue to offend to repay it. Third, messages on the applicant's phone show that she was financially reliant on the co-accused, and now that he is incarcerated, she may continue to offend to fund her substance use.

Failing to surrender into custody in accordance with the conditions of bail

61 The respondent notes that this matter could be protracted in duration. Given this, the respondent submits that, noting the applicant's father's poor health, there may be issues with his ability to supervise her or continue to provide the surety.

62 Further, the respondent submits that the proposed $100,000 surety may not be adequate to mitigate risk, suggesting that her desire to care for her baby may increase her risk of flight, noting the likely custodial sentence to be imposed if she is found guilty.

63 The applicant has two prior matters for failing to appear at Ringwood Magistrates' Court in 2016.

Have exceptional circumstances been established?

64 Because the applicant is accused of a Schedule 1 offence,[6] bail must be refused unless she satisfies the court that exceptional circumstances exist that justify a grant of bail.[7] In making this determination, the court must have regard to the relevant surrounding circumstances, a non-exhaustive list of which is set out in section 3AAA(1).[8]

65 The Act does not define what is meant by "exceptional circumstances". This court has previously summarised when circumstances may be taken to have reached the threshold of "exceptional" with reference to earlier judicial commentary:[9]

• The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.

66 The applicant has put forward a combination of factors which she says establish that exceptional circumstances exist why she should receive a grant of bail which I have outlined above.[10]

67 As to the strength of the prosecution case, I consider there is some independent evidence that could tend to implicate the applicant in the alleged offending. On the other hand, it is submitted on behalf of the applicant there are clearly triable issues to be explored, and that the case against her is not a strong one, being a circumstantial one relying on a combination of various pieces of evidence.

68 In my opinion, at this point it is premature to form firm views about the strengths or weaknesses of the prosecution case beyond saying that there are text messages, CCTV footage, some fingerprints and DNA evidence that are capable, along with some other evidence, of supporting the conclusion the applicant was involved in the alleged criminal activities. The prosecution notes that drug analysis demonstrates a commercial quantity of methylamphetamine was located. Also, there were smaller amounts of other drugs, accoutrements of trafficking, and materials for the manufacture of methylamphetamine which were found in the two factory locations to which the applicant was connected. I have noted the applicant's submissions that the charge of "trafficking in a commercial quantity" is unsustainable against the applicant, being the charge that places her within the category of having to meet the "exceptional circumstances" test. In the end, I am unable to form views about the strength of the case against the applicant other than to remark that there are triable issues, and the case against her is not overwhelmingly strong, nor on the other hand, particularly weak.

69 As to the submission that the applicant is likely to serve longer on remand compared to a sentence she may receive, it is well accepted that inordinate delay can amount to exceptional circumstances justifying bail, particularly if combined with other factors.[11] The applicant argues that a delay of up two and a half years in her case, let alone a three‑year delay, is one that, in and of itself, amounts to an exceptional circumstance. There is likely to be some considerable delay in this matter, resulting from the need for forensic testing, the existence of a co‑accused, with a committal not likely to occur until late 2023 or 2024. Beyond stating that, much more is really unknown or uncertain as to what the delay may turn out to be. In the end, the best that can be said is that it is likely to be a significant delay before these matters are finally resolved at trial.

70 At the same time, I accept that if the applicant is convicted of some or all of the serious charges, a delay of two or three years is unlikely to exceed the likely sentence imposed.

71 The applicant does have a relevant but limited criminal history, mostly relating to drug offending. She has been in custody before and I also note she has served a previously imposed CCO, apparently successfully.

72 Of some considerable significance is that the applicant is in an advanced stage of pregnancy, due to give birth around 28 June. The respondent submits that this is not an exceptional matter. However, there are undoubtedly concerns about whether the applicant's child will be removed from her when born. It is not clear whether the application for the "Living with Mum" program provided by the DPFC has been approved at this point. In an email dated 11 May 2023 and provided to the court, Michelle Berry, the Manager of Public Law and Litigation at the Office of General Counsel at the Department of Justice and Community Safety ['the Department'], suggests that she applied for the program on 31 March 2023, the application was presented to the Steering Committee on 9 May 2023, and that applications take "up to two weeks" to finalise after this point.[12] Whilst there are no children currently at DPFC, the facility is capable of housing infants and children with their parents. Thus, although it remains a risk that the child could be taken from the applicant, it appears there are programs in place within the prison to deal with persons on remand who have young children, though there is still a degree of uncertainty as to what the future might hold in respect of this application for the program.

73 As to mental health issues, the applicant has highlighted that she suffers from ADHD and "quite significant" anxiety. The CISP report confirms the applicant's self‑reportage of these diagnoses. A supplementary affidavit dated 4 May 2023 confirms that, in the community, the applicant takes Vyvanse for her ADHD and other medications for depression and anxiety, but has not taken these medications in custody. Part of the support to be offered by CISP if the applicant is granted bail would involve psychological assistance. I accept the likelihood that if the applicant is separated from a new baby this would have substantial negative effects on her mental health.

74 I accept that the applicant's father is terminally ill which will undoubtedly make custody more difficult for her, as she will be separated from her father during a difficult time.

75 As to the availability of stable accommodation and support, the applicant's father has given evidence that he cares for his daughter and he is willing to supervise her at his East Warburton address if she is granted bail. I do hold some concerns surrounding the proposed living arrangements, particularly the fact that he is seriously ill and was unaware of the applicant's past drug use. He therefore may not be capable of properly supervising the applicant. It also appears that the father's house does not yet have a Certificate of Occupancy issued. I further note that he proposes to live in a caravan to avoid exposing the baby to any radiation as a result of his treatment. The photos of the property provided by Mr Delianis do show some framework on the site, which the applicant's counsel submitted was a self‑contained unit that is in the process of being built on the property. Generally speaking, I do remain concerned about some aspects of the residential arrangements and support proposals put forward on behalf of the applicant, by her father.

76 I note also that the applicant has a surety available. This is a significant factor. A surety in the sum of $100,000 in the form of equity against the home of the applicant's mother has been offered. I accept that this does present a deterrent to the applicant further offending or breaching her conditions of bail, if bail is to be granted.

77 Importantly, there is a support plan available to the applicant through CISP, if she is granted bail. As these supports are critical to the disposition of the application, I will list them clearly, as set out in the report. They are:

(a) that the applicant's father would transport the applicant from DPFC to the proposed bail address;

(b) that the applicant will reside at her father's address;

(c) that the applicant will attend an assessment for substance abuse issues for appropriate treatment with an accredited worker, as arranged through CISP;

(d) that she can contact Directline, Beyond Blue, Lifeline, and Parentline Victoria, and Life Supports, regarding advice about the supports offered by those services;

(e) that she attend her general practitioner, Dr Weerasekera, to obtain referrals for maternal health and birthing care, a mental health reviews, and a psychiatric referral to re-engage with Dr Piperoglou;

(f) that she attend her local Centrelink Service Centre within seven days of release to apply to restart her allowances and receive a Crisis Payment; and

(g) that she engage with the ICS team at Melbourne CISP by telephone.

78 The fact that the applicant has expressed willingness to engage with these supports is somewhat encouraging. In this regard I have also noted and taken into account the respondent's submission that the applicant has had the assistance of CISP bail previously and is said to have successfully completed a CCO which included drug treatment conditions, neither of which, it was said, "successfully abated the applicant's drug use, or her risk of offending".

79 On behalf of the applicant, it was submitted that the conditions of incarceration are sub‑optimal, particularly in light of her late‑term pregnancy. Whilst it would, of course, be preferable for the child to be born and live in the community with the applicant, I have had regard to the evidence that the applicant has not been denied medical treatment at DPFC. I have also had regard to the fact that it may not turn out to be impossible for the child to be able to live with the applicant if approved through the "Living with Mum" program. However, this decision has not yet been made at the time of these reasons. Systems are clearly in place for these situations, and I note the email from Ms Berry that states:

As a routine, when a pregnant woman enters into custody at Dame Phyllis Frost Centre (DPFC), a referral is made by Correct Care Australia (CCA) to the Joan Kirner Women's and Children's Hospital (Sunshine Hospital) and are linked directly with Kylie Charles (Midwife) following shared care arrangements, consistent with community practice. At DPFC, a midwife from Sunshine Hospital provides in reach services in cooperation with the prison health service. This model provides consistent pregnancy care through the visiting midwife in consultation with the prison health service. All pregnancy appointments conducted by Sunshine Hospital are scheduled by the midwife.

Should further information be required regarding the in reach midwife service, enquiries should be directed to the Joan Kirner Women's and Children's Hospital (Sunshine Hospital).

80 This email from the Department also outlined the medical treatment the applicant has received whilst in custody. It confirms that the applicant has received health care during her pregnancy consistently from January this year until now, in relation to both her pregnancy and her mental health, as is her human right. The Department also stated that the applicant had been provided Ibuprofen for back pain when requested. However, it is to be repeated that, as at this point, the situation with respect to whether the child can stay with her mother in the custodial setting has not been resolved.

81 In the end, and considering and weighing all the competing factors in combination, I am somewhat reluctantly willing to accept that the exceptional circumstances test has been met. These is because the multitude of factors, which when considered together, in my opinion take the applicant into the realm of exceptional circumstances, particularly given the supports available, her pregnancy, and the lengthy delays that may occur before her matters are finalised. In reaching this conclusion, I am acutely aware of the seriousness of the allegations made against the applicant. I have also taken into account the surrounding circumstances, which I am obliged to do.

Does the applicant pose an unacceptable risk?

82 If satisfied that the exceptional circumstances test has been satisfied, the court must then consider the unacceptable risk test.[13] Bail must be refused if the court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in section 4E(1)(a), and that such a risk is an unacceptable one.[14]

83 In applying this test, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[15]

84 I have considered the submissions of the parties and all the relevant factors. In particular, I have considered the respondent's submission that the applicant poses a risk of failing to answer bail, committing an indictable offence whist on bail, and endangering the safety and welfare of any person, particularly given her criminal history.

85 The applicant clearly poses some risk. This is particularly so given the alleged offending involves firearms and the potential manufacture and trafficking of drugs of dependence. The applicant's level of involvement in these activities is yet to be fully understood, and this will evolve in the period that follows.

86 A grant of bail almost inevitably involves a degree of risk. The matter for consideration is whether risk can be ameliorated by the imposition of conditions, to a level that becomes acceptable in all the circumstances. The applicant appears willing to re‑engage with a psychologist; work on her mental health issues; help her father through his illness; and, centrally, raise her expected infant. This will undoubtedly be a huge shift in her life. It appears that she has the opportunity of a fairly stable home environment, and a family capable and willing to provide support and supervision if she is released on bail. This will be very important, given the significant surety offered by her mother may be forfeited if she is to commit further offending or breach her bail conditions.

87 Of considerable importance is that the applicant has the ongoing support of CISP. The report concluded the applicant was recommended for case management and stated:

Ms Laverick engaged in an open, positive, and respectful manner throughout the assessment and presented with a strong motivation to live a pro‑social life. Ms Laverick's motivation appears to be all the more strengthened by her pregnancy, of which she is in her third trimester. Ms Laverick presents with capacity and a desire to comply with the therapeutic elements of the CISP program. It appears to the writer that Ms Laverick has a genuine interest in wanting to explore the underlying causes of her offending to better understand why she finds it challenging to maintain positive behaviours and change.

88 In all the circumstances I am, again somewhat hesitantly, willing to accept that the degree of risk the applicant poses can be satisfactorily managed with the imposition of strict bail conditions, and that it is therefore not an unacceptable risk pursuant to the statutory test. Accordingly, I am not satisfied the respondent has convinced me that the risk attaching to the applicant is unacceptable in all the circumstances and I will therefore grant the applicant's application for bail, with a surety of $100,000, with the following conditions to be imposed:

(a) that the applicant reside at the East Warburton address;

(b) that the applicant remain at the above address from 10:00pm to 6:00am unless in the company of her father, and then only to leave the said premises during those hours for medical attention to herself, her child or her father;

(c) that the applicant presents at the front door of the premises upon request by police;

(d) that the applicant is required to report to police at Warburton Police Station every Monday, Wednesday and Friday during the period of bail;

(e) that the applicant reports to CISP within 24 hours of being released on bail and thereafter complies fully with the lawful directions of CISP (or the Community Recreation Outreach Project);

(f) that the applicant is not to contact or associate with Dale Morrison, except in relation to matters concerning the welfare and care of the applicant's child;

(g) that the applicant must not discuss matters concerning the allegations against her with Dale Morrison;

(h) that the applicant is not to contact any prosecution witness except for the informant;

(i) that the applicant is not to leave the state of Victoria;

(j) that the applicant is not to attend any international point of departure;

(k) that the applicant is to surrender any passport within 24 hours of release and not apply for another; and

(l) that the applicant will reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on a date that will be chosen between my associates and the parties in approximately one month, and any other further dates that the court appoints during the course of this order.

[1] The supplementary affidavit in response filed on 5 May states that one of these charges (charge 62, traffick cocaine) was served on the applicant's solicitor on 29 April 2023, however it is not confirmed when the charge was filed in the Magistrates' Court. Further, as the charge was served after this application was filed, the applicant has not confirmed that she seeks bail in respect of it.

[3] [2021] VSC 716.

[4] [2021] VSC 496.

[6] Charge 43 - trafficking in a commercial quantity - is a Schedule 1 offence under the Act.

[9] Re Brown [2019] VSC 751 [65] (Lasry J).

[11] Re MJ [2021] VSC 592 [22]-[23] (Lasry J) as cited in Re Tiba (No 2) [2021] VSC 716 [15].

[12] An email from Ms Berry was provided to the court on the morning of 12 May 2023. The respondent noted that the information was provided late and as a result an affidavit could not be prepared in time for the hearing.