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[2024] VSC 568
General information, not legal advice.
Supreme Court of Victoria
2024-09-13
Kaye JA
Original judgment source is linked above.
CRIMINAL LAW - Bail application - Applicant charged with burglary, theft of motor vehicle, driving a motor vehicle recklessly exposing an emergency worker to a risk of safety, recklessly driving a motor vehicle causing damage to an emergency service vehicle, theft of bankcards, possessing cartridge ammunition whilst not the holder of a licence or permit, possessing prohibited weapon without exemption, driving motor vehicle during a period of disqualification - Whether exceptional circumstances established - Whether unacceptable risk of endangering the safety and welfare of others - Applicant Aboriginal person - Applicant suffers health issues - Bail Act 1977 (Vic) ss 3A, 3B, 3AAA, , , , , considered.
1 The applicant is subject to four sets of charges. On 13 April 2023, he was arrested and remanded into custody in respect of three of those sets of charges. On 6 May 2024, he successfully applied for bail in respect of those charges. Subsequently, on 7 July 2024, he was arrested and bailed in respect of the matters that are the subject of the fourth set of charges. On 18 July 2024, he was arrested on all four sets of charges. The Wodonga Magistrates' Court granted the application of the respondent to revoke the applicant's bail. The applicant now applies to this Court for bail.
2 The informants in respect of the four sets of charges are, respectively, Detective Senior Constable Sharma, Detective Leading Senior Constable Causer, Detective Senior Constable Deverell, and Senior Constable Larkin.
3 On 23 January 2023, the applicant was charged, by Detective Senior Constable Sharma, with one charge of burglary, two charges of theft of a motor vehicle, one charge of theft of bankcards, one charge each of possess cartridge ammunition whilst not the holder of a licence or permit, possess prohibited weapon without exemption, and possess controlled weapon without lawful excuse, and two charges of driving a motor vehicle during a period of disqualification. Those offences are alleged to have been committed by the applicant on 24 June 2022 and 25 June 2022.
4 At approximately 9:00 pm on 24 June 2022, the applicant was involved in a single vehicle collision on the Hume Freeway, Euroa. The applicant was then driving a silver Ford Falcon with false registration plates. A member of the public, Benjamin Richards, who was driving a Volkswagen Transporter van, stopped his vehicle to render assistance to the applicant. As Richards walked to another vehicle that had stopped behind him, the applicant got into Richards' vehicle and attempted to drive it. He did not succeed in doing so, as the vehicle stalled. Richards then returned to his vehicle and removed the keys from the barrel. The applicant got out of the vehicle and walked away, but returned to recover his mobile phone, which he had left in Richards' vehicle. The applicant then departed from the scene.
5 Police then attended the scene and searched the applicant's Ford Falcon vehicle. In doing so, they located a large hunting knife, a Taser, and two magazines containing large calibre ammunition.
6 The applicant walked about three kilometres to premises in Neelands Road, Euroa, where he spent the night sleeping in a farm utility vehicle. In the morning, having observed the female occupant of the house leave the premises, the applicant entered the house, and stole a wallet containing $500 and identity cards, and a set of car keys, from the victim's handbag. The applicant then left the address driving a Mazda CX3, which he stole from the premises.
7 At the time of those incidents, the applicant's driver's licence had been cancelled and he had been disqualified for a period of three years from 17 February 2021.
8 On 13 April 2023, the applicant was charged by Detective Senior Constable Causer with two charges of driving a motor vehicle recklessly exposing an emergency worker to a risk of safety, one charge of recklessly driving a motor vehicle causing damage to an emergency service vehicle, one charge of driving a motor vehicle when directed to stop, and one charge of theft of a KIA Sportage. Those offences are alleged to have been committed by the applicant on 10 March 2023.
9 On 27 February 2023, a 2012 silver coloured KIA Sportage 4 x 4 was stolen from the driveway of premises in Pakenham. Subsequently, on 10 March 2023, the applicant was observed by police reversing the vehicle out of the driveway of premises in Wodonga. The vehicle had had false registration plates affixed to the front and rear of it. The vehicle stopped in the middle of the road, facing the police vehicle, on which the emergency lights had been activated. The applicant then reversed the vehicle on the wrong side of the road and, in doing so, he mounted the nature strip and continued to travel backwards, while followed by the police with its emergency lights still activated. Police attempted to block the vehicle. As they did so, the applicant reversed further on the front yard of premises, and then drove forward, straight into the front of the police vehicle, damaging its bull-bar and light shroud. The applicant then reversed again, and came forward again, striking the police vehicle. He continued to turn the vehicle, damaging the front and side of the stolen vehicle. He then drove off along Wilson Street, Wodonga. At the time of the incident, the applicant was a disqualified driver, and did not hold a current driver's licence.
10 On 27 July 2023, the applicant was charged by Detective Senior Constable Deverell with 18 charges, comprising six charges of theft of a motor vehicle, five other charges of theft, one charge of burglary, four charges of driving a motor vehicle while disqualified, one charge of handling stolen property, and one charge of damaging property. Those offences were alleged to have been committed by the applicant between 14 June 2022 and 14 March 2023, and between 6 April 2023 and 8 April 2023.
11 On 1 April 2023, a 2016 Hyundai Accent vehicle, registration 1RZ2IU, was stolen by an unknown person from where it had been parked in Preston. Subsequently, on 6 April 2023, the applicant was captured on CCTV driving the vehicle when he stole fuel from the Shell Service Station in Rutherglen. He was again captured on CCTV driving the same vehicle on 7 April 2023, when he stole fuel from the 7-Eleven service station in Wodonga.
12 While the applicant was in the Kiewa area, between 4:30 pm on 6 April 2023 and 12:00 pm on 7 April 2023, he stole a front numberplate 1GY4PE from a vehicle. At 2:50 am on 7 April, the same stolen plate was captured on CCTV footage at the 7-Eleven store at Wodonga, attached to a stolen Hyundai Accent. The CCTV captured the applicant and his co-accused, Samira Icely ('Icely') stealing fuel from that 7-Eleven service station.
13 Between 4:00 pm on 6 April 2023 and 2:40 pm on 7 April 2023, while he was in the Kiewa area, the applicant attended premises, where he gained access to a large shed. While inside the shed, the applicant ransacked two vehicles. He then stole an expensive SCOTT mountain bike and four Diawa fishing rods, with a total value of approximately $9,000. None of that property has been recovered.
14 At approximately 2:00 am on 8 April 2023, the applicant was driving his Ford sedan vehicle on Jenkins Lane, Kiewa. As he did so, the vehicle became bogged. The applicant then walked a short distance to premises in Murra Court, where he used keys that he had earlier gained possession of, to assist him to steal a 1996 Mercedes SL 280 convertible vehicle. That vehicle was a collectible model, and was valued at approximately $30,000. The applicant subsequently removed the plates from the vehicle. At 5:30 pm on the same afternoon, he was sighted by police, driving the vehicle erratically, in the Wodonga area. After he realised he had been observed by police, the applicant drove to the North Albury area, where he set the vehicle on fire in an attempt to destroy any forensic evidence. When police searched the vehicle, they located the applicant's NAB credit card, and also a stolen numberplate IGY4PE, which had been taken on the previous day from a Toyota Avalon vehicle.
15 On 8 April 2023, while driving the stolen Hyundai Accent vehicle, the applicant, in company with Icely, attended the 7-Eleven service station in Wodonga at 2:15 am on that date. There, the applicant and Icely stole $61.66 worth of petrol. Subsequently, while driving the stolen Hyundai vehicle, the applicant attended the Shell service station in Rutherglen, where he stole $59 worth of petrol without making any attempt to pay for it.
16 Charges 12 to 18 relate to offending alleged to have been committed between 14 June 2022 and 14 March 2023. On 8 March 2023, the applicant, in company with a co-accused (Christopher Oates), drove a stolen KIA hatch vehicle to a car-park at a shopping complex in Wodonga. There, they stole a Kawasaki 300 cc motorbike, which they loaded into the back of the KIA vehicle. The bike was valued at approximately $7,000. The offence was captured on CCTV.
17 At 10:45 pm on 14 March 2023, the applicant attended a service station in Beechworth, riding the same Kawasaki motorbike. There, he stole $20 worth of fuel, riding away without making any attempt to pay for the fuel.
18 In the meantime, one month earlier, between 10:00 pm on 17 February 2023 and 4:40 am on 18 February 2023, unknown offenders had entered a house in Wodonga, where they stole the victim's Holden motor vehicle. At approximately 3:00 pm on 18 February 2023, the applicant drove the stolen Holden Commodore vehicle to a car wash in Wodonga. A short time later, the victim attended the car wash and confronted the applicant, who handed the car keys back to the victim. The applicant removed a knife and other personal items from the stolen vehicle. He then entered a stolen silver Audi vehicle that was parked next to the Commodore and fled the area.
19 At approximately 9:45 pm on 14 February 2023, the applicant, in company with three associates, attended premises in West Wodonga to assist an associate to collect some personal belongings. While he was at the premises, the applicant had a heated argument with an associate, Caewood, who locked himself in the bathroom. Caewood commenced to threaten and abuse the applicant. In response, the applicant became angry, and forced the bathroom door open by kicking it in and damaging the lock. The value of the damage was reported to be approximately $300. It is that conduct that is the subject of the charge of criminal damage.
20 Charge 18 (theft of a motor vehicle) concerns the theft of a vehicle that took place on 14 June 2022. On that date, unknown offenders stole a Ford Ranger vehicle at a worksite in Keysborough. Subsequently, on 2 August 2022, the vehicle was recovered in North Dandenong. Inside the vehicle was surgical gloves. A DNA sample taken from the gloves matched the applicant's DNA. When interviewed by police, the applicant admitted that he had attended at the premises in Dandenong North. He maintained that he had been given the vehicle. He admitted that he knew that the vehicle was stolen when he drove it.
21 On 7 July 2024, the applicant was charged by Senior Constable Larkin with one charge of possession of a drug of dependence (methamphetamine), and one charge each of driving a motor vehicle without a licence, driving an unregistered motor vehicle, and failing to produce a disabled parking permit.
22 At 6:00pm on 7 July 2024, the applicant was found by police asleep in the driver's seat of a white Honda Accord that was parked in front of a service station in Barnawartha. Due to the applicant's drug-affected state, paramedics attended and assessed him. In the meantime, police located a small press-lock bag that contained methamphetamine. Subsequent checks on the VicRoads database disclosed that the applicant was not licensed to drive the vehicle. In addition, the white Honda Accord had been unregistered since April 2014. The vehicle was parked in a space for persons with a disability, and there was no disabled permit visible on the vehicle. That circumstance is the subject of the charge of failing to produce a disabled parking permit pursuant to the Road Safety Rules.
23 As noted, on 13 April 2023, the applicant was arrested and remanded into custody in respect of the matters in which Detective Senior Constables Sharma, Causer and Deverell were each the informants. On 8 February 2024, the applicant unsuccessfully applied for bail at the Wodonga Magistrates' Court. Subsequently, on 6 May 2024, the applicant applied for bail to the Wodonga Magistrates Court. The applicant was granted bail on conditions that included that he comply with all requirements of the Court Integrated Services Program ('CISP') and that he engage with the Koori Men's Shed.
24 On 7 July 2024, the applicant was arrested and bailed on the matters in which Senior Constable Larkin is the informant. Subsequently, on 18 July 2024, he was arrested and brought before the Wodonga Magistrates' Court on applications to revoke his bail in respect of each of the four sets of charges. On that date, the magistrate granted the applications to revoke the applicant's bail.
25 In addition to the above matters, the applicant is also the subject of four sets of summary charges.
26 On 16 October 2022, the applicant was charged by First Constable McDonald with one charge each of theft of petrol (valued at $39.99), driving a motor vehicle during a period of disqualification, and fraudulent use of an identifying number. Those charges are next listed on 18 September 2024 at the Wodonga Magistrates' Court for a plea of guilty.
27 On 13 July 2023, the applicant was charged by Detective Senior Constable Doyle with two charges of theft of fuel, one charge of aggravated burglary, one charge of burglary, one charge of theft of motor vehicle, and two charges of driving a motor vehicle during a period of disqualification. Those charges are next listed at the Wodonga Magistrates' Court on 18 September 2024 for a plea of guilty.
28 On 19 July 2023, the applicant was charged by Detective Senior Constable Farano with one charge of theft of a motor vehicle on 17 February 2023. That charge is also listed on 18 September 2024 at the Wodonga Magistrates' Court for a guilty plea.
29 On 16 October 2023, Senior Constable Baker charged the applicant with eight motor vehicle offences, including driving a vehicle during a period of disqualification, recklessly engaging in conduct in a supermarket carpark that may have placed persons in danger of serious injury, driving a vehicle in a manner that caused one or more of the vehicle's wheels to lose traction (two charges). Those offences are alleged to have been committed by the applicant on 11 February 2023. Those charges are also next listed on 18 September 2024 at the Wodonga Magistrates' Court for a guilty plea.
30 The charges, in respect of which Messrs Causer, Doyle, McDonald, Farano and Baker are the informants, are all listed for a plea of guilty before the Wodonga Magistrates' Court on 18 September next. The charges, in which Detective Senior Constable Causer is the informant, have been resolved, on the basis that the two charges of driving a motor vehicle recklessly exposing an emergency worker to a risk of safety will be withdrawn, and the applicant will plead guilty to the other three charges (including the charge of recklessly driving a motor vehicle causing damage to an emergency service vehicle). It is proposed that when the five matters come before the Wodonga Magistrates' Court on 18 September next, they will be referred to be heard on 1 November next in the Koori Court. The charges, in respect of which Detective Senior Constable Larkin is the informant, are listed for mention on the same date.
31 The charges, in respect of which Detective Senior Constable Sharma and Detective Senior Constable Deverell are the informants, are listed for a contest mention before the same Court on 18 September.
32 The applicant has a substantial list of previous convictions, dating back to 2016, when he was 24 years of age.
33 On 24 May 2016, the applicant was before the Benalla Magistrates' Court on two charges of contravening a Family Violence Intervention Order, and charges of using an unregistered motor vehicle, driving while disqualified, burglary and drink driving. He was convicted and sentenced to a Community Correction Order for 12 months.
34 On 25 October 2016, the applicant was again before the Benalla Magistrates' Court on charges of criminal damage, threatening to inflict serious injury and theft. Without conviction, he was fined an aggregate of $2,000 and ordered to pay compensation. On the same date, the applicant was also before the court on a charge of contravening the Community Corrections Order that was imposed on 24 May 2016. The charges were found proven, and the Community Correction Order was confirmed.
35 On 26 September 2017, the applicant was convicted by the Benalla Magistrates' Court and fined $400 on charges of criminal damage and burglary. On the same date, he was also before the court on a further charge of contravening the Community Correction Order. The applicant was convicted, and the Community Correction Order was varied, with an additional condition requiring the applicant to perform 100 hours unpaid community work and to undergo assessment and treatment.
36 On 8 April 2020, the applicant was before the Melbourne County Court on an appeal from orders made by the Benalla Court on 16 July 2019. The proceeding constituted a consolidation of some 14 matters, concerning offences committed between 6 July 2018 and February 2019. The charges included two charges of burglary, two charges of theft, two charges of handling stolen property, two charges of theft from a shop, two charges of fraudulently using registration plates, 13 charges of obtaining property by deception, one charge each of possession and use of methamphetamine, and one charge of being a prohibited person in possession of a firearm. The applicant was sentenced to a total effective sentence of 11 months' imprisonment. 326 days were declared to have been served by way of pre-sentence detention.
37 On the same date, the applicant was also before the Melbourne County Court on two charges of contravening a Family Violence Order, one charge of trespass, and one charge of contravening a Community Correction Order. He was convicted and sentenced to a total effective sentence of one month imprisonment.
38 On 17 February 2021, the applicant was convicted by the Wodonga Magistrates' Court and sentenced to an aggregate sentence of 18 months' imprisonment, and an aggregate fine of $1,000, on charges that included: contravene Family Violence Order; driving while disqualified (two charges); reckless conduct endangering life (two charges); obtaining property by deception (nine charges); obtaining a financial advantage by deception; committing an indictable offence while on bail (two charges); dangerous driving; and theft.
39 On 19 March 2021, the applicant was sentenced to a further term of one month imprisonment by the Melbourne County Court on one charge of breaching the Community Corrections Order that was imposed on 8 April 2020. He was also sentenced to 18 months' imprisonment on one charge of affray (which had been committed on 7 May 2018).
40 Finally, on 26 October 2022, the applicant was before the Wodonga Magistrates' Court on a consolidation of charges involving four informants. The offences were alleged to have been committed between 10 May and 26 July 2022. They included: theft (six charges); aggravated burglary (two charges); obtaining property by deception (three charges); handling stolen property (two charges); driving a motor vehicle while disqualified (three charges); theft of a motor vehicle (three charges); using methamphetamine; committing an indictable offence while on bail (four charges); and contravening the conduct condition of bail (three charges). The applicant was convicted and sentenced to an aggregate sentence of six months' imprisonment, and a Community Corrections Order of 12 months.
41 The applicant was born in Katoomba, New South Wales, on 10 August 1992. He has seven younger siblings, but was raised with four of them. The applicant's mother effectively evicted him from the home when he was eleven years of age, and, as a consequence, he was effectively homeless for five months. His father then took over his care. The applicant's mother was given to using drugs, and his father was a violent alcoholic who bashed his wife in front of his children. His father also smoked cannabis and injected amphetamine.
42 The applicant left his father's home at the age of nineteen years, and moved to live with his then partner, Nicole. That relationship lasted for two years, during which they had two children. Following the failure of that relationship, the applicant commenced a relationship with Shae Kirchen. That relationship has continued for 11 years. The applicant and Shae have one daughter, who is now aged seven years. They live in Wodonga.
43 During his childhood, the applicant attended three different schools. He experienced bullying, and concluded his education after Year 7, the time at which he was evicted from the family home by his mother. The applicant subsequently undertook some labouring work in New South Wales, but he has had a minimal employment history.
44 The applicant commenced to use cannabis and amphetamine after he moved to his father's home. He subsequently used heroin, GHB and methylamphetamine.
45 The applicant has reported that he had suffered two heart attacks during his term of imprisonment in 2020. As a result, he spent some three months in St Vincent's Hospital, and he now has a mechanical valve in his heart.
46 In that respect, the Justice Health records note that, on 19 February 2020, the applicant underwent a mechanical aortic valve replacement in surgery performed at the St Vincent's Hospital. That procedure was secondary to aortic valve infective endocarditis on the background of a bicuspid aortic valve. Subsequently, the applicant was reviewed in July 2021, and it was intended that a transthoracic echocardiogram be undertaken. However, it would seem that that investigation has not been undertaken. In the meantime, there had been a report in March 2021 that the applicant had suffered an episode of acute endocarditis.
47 The applicant was assessed by Dr Aaron Cunningham, psychologist, on 16 January 2023. Dr Cunningham concluded that the applicant meets the Diagnostic and Statistical Manual of Disorders for Post-Traumatic Stress Disorder ('PTSD'). In particular, the applicant had been exposed to trauma, neglect and abandonment from childhood. He had sustained additional traumas in the form of motor vehicle accidents and violence. Dr Cunningham expressed the view that the applicant's drug abuse presents as the main contributor to his offending. In turn, the applicant's unresolved trauma, and his lack of domestic stability, have contributed to his abuse of drugs. Dr Cunningham is of the opinion that the applicant would benefit from a disposition that facilitates his rehabilitation. In particular, Dr Cunningham is of the opinion that incarceration would aggravate the applicant's PTSD by exposing him to further violence in a prison environment. Unsurprisingly, Dr Cunningham is of the opinion that the applicant would benefit from drug and alcohol rehabilitation.
48 The applicant is an Aboriginal person, belonging to the Wiradjuri people. He has sought a referral to the Mungabareena Aboriginal Corporation in Wodonga. That corporation is an organisation which incorporates culturally relevant holistic support and treatment approaches. In particular, it provides culturally appropriate services and connects and works with Aboriginal and Torres Strait Islander peoples. Within Mungabareena is an Alcohol and Other Drug ('AOD') worker, who provides culturally sensitive support services to Aboriginal clients, who are affected by drugs and alcohol. The AOD worker collaborates with the Community Health and Community Service providers in that respect.
49 Mr Carl Tunstall, the local Justice worker of Mungabareena, has provided a letter dated 16 August 2024, noting that the applicant has expressed a desire to learn about his Aboriginal culture. Mr Tunstall, in his letter, states that his organisation can link the applicant into Mungabareena's Men's Group, which is run every second Thursday. In addition, other Mungabareena programs, which may be accessed by the applicant, include the local Justice Worker Program, the AOD Worker Program, and the Mungabareena Community Gym.
50 A cultural support plan for the applicant was prepared by Ms Traysy Kay, the Executive Director of Koori Programs and Initiatives, Court Services Victoria. The plan recommends that, if the applicant is granted bail, he would have available culturally appropriate supports in the form of Mungabareena, and also in the form of Ngwala Willumbong. The latter is a service, which aims to meet the needs of Aboriginal and Torres Strait Islander people, in particular by assisting with services, such as alcohol and drug treatment and recovery, housing, and like services.
51 The applicant has also been engaged with Australia Community Support Organisation ('ACSO'), and has participated in that organisation's ReStart Program. That program focuses on providing assertive Outreach support to assist participants establish supports and community linkages over a period of up to three months. In a letter provided to the Court, Mr Tuah (a forensic case worker with ReStart) has noted that ReStart has been working with the applicant while he has been on remand. Mr Tuah states that ReStart will assist the applicant to register with his general practitioner with the purpose of obtaining a mental health plan in order to enable him to connect with a psychologist to address his mental health issues. In addition, ReStart will support the applicant to obtain necessary identification in order to ensure that his Centrelink payments are reinstated on his release. The applicant will also be supported with referrals to employment agencies and with AOD referrals.
52 The applicant also tendered a progress report by the Court Integrated Services Program ('CISP') dated 17 June 2024. The report was prepared by Ms Jocelyn Richardson, a CISP case manager. The applicant had attended five scheduled appointments with CISP since 8 May 2024, the last of which was on 13 June 2024. In the report, Ms Richardson reported that the applicant had started his program with CISP positively, and that he participated fully in discussion at each appointment. In particular, the applicant had discussed his goal of remaining abstinent from substance abuse, and to focus on supporting his family and improving his relationships. Ms Richardson also reported that the applicant had been proactive in making a self-referral for alcohol and other drug support with ACSO.
53 In a further report dated 4 September 2024, Ms Emily Moloney, a CISP Assessment and Referral Practitioner, noted that the applicant has been assessed by the CISP Remand Outreach Program via video-link on 2 September last. Ms Moloney states that the following initial treatment and support plan has been arranged for the applicant, should he be granted bail:
• The applicant will reside at the home of Ms Kirchen in Wodonga.
• The applicant will be supported by his case manager to book a general practitioner appointment for the purpose of a mental health care plan, and to engage with his local Aboriginal cooperative for mental health support.
• The applicant will be supported with a referral to Gateway Health for ongoing alcohol and other drug support.
• The applicant will have his first CISP case management appointment with Ms Richardson shortly after being granted bail.
54 It is proposed that, if the applicant is granted bail, he will reside with his partner, Shae Kirchen, in their home in West Wodonga. Ms Kirchen has deposed an affidavit in support of the application. Ms Kirchen stated that the residence in West Wodonga is public housing accommodation and is secured long-term in her name. Ms Kirchen states that her father, who has a problem with the abuse of methamphetamine, no longer resides in the home, because of that problem. Ms Kirchen herself has also had issues with methamphetamine. However, she has not used that substance for 15 months.
55 Ms Kirchen has also stated that she does not have any concerns for her safety, or for her daughter, Elaina's, safety. Although there have been previously Family Violence Intervention Orders in place, Ms Kirchen states that she has not supported them. In her affidavit, she has said that she will not tolerate the applicant using drugs in the house. She maintains that if the applicant were granted bail, and if he does not comply with his bail provisions (including refraining from using drugs), she would report that matter to the police. In addition, Ms Kirchen has described a number of health issues from which she suffers. She has expressed the view that if the applicant were released on bail, his caring responsibilities for both Elaina and herself would be essential for their welfare.
56 The respondent has filed an affidavit, which has set out a number of matters relevant to the application. In respect of relevant factual matters, the affidavit deposes the following matters.
57 First, the applicant has previously participated in the CISP program in 2018, 2019 and 2024, but notwithstanding that participation, he has continued to abuse illicit substances and to re-offend while being in the CISP program. Further, the applicant's previous engagement with CISP has been variable. When he was bailed on 6 May 2024, one of his bail conditions was to comply with all the requirements of CISP. In an email dated 18 July 2024, Ms Richardson, the CISP case manager, recorded that the applicant, on that occasion, had complied with the CISP requirements until 13 June, but since that date he had disengaged with CISP.
58 Further, the respondent has noted that when the applicant was bailed on 6 May 2024, he was also subject to a condition that he engage with the Koori Men's Shed program, conducted by Mungabareena Aboriginal Corporation. However, he failed to attend any sessions or make any contact with staff of Mungabareena or the Koori Men's Shed.
59 The respondent's affidavit also notes that the relationship between the applicant and Shae Kirchen has been particularly volatile. Between September 2017 and June 2022, the applicant, on three occasions, and Ms Kirchen on two occasions, have been subject to Family Violence Intervention Orders.
60 The respondent considers that the proposed living address with Ms Kirchen and their daughter in West Wodonga would not be suitable. Ms Kirchen's father also has resided at that address. On 31 May 2024, he tested positive for methylamphetamine in a roadside test. The applicant was previously bailed to the same address on 6 May 2024. On 7 July, he was arrested and found to be in possession of methylamphetamine and charged with being in possession of a prohibited drug. In addition, by reason of the Family Violence Intervention Orders, the respondent is concerned as to the risk of Ms Kirchen's daughter, Elaina, being exposed to both family violence and substance abuse.
61 The charges against the applicant include an offence, specified in Schedule 2, item 22(ee) of the Bail Act 1977 (Vic), namely, an offence committed on 10 March 2023 against s 317AG of the Crimes Act (damaging an emergency service vehicle). That offence is alleged to have been committed while the applicant was subject to a Community Correction Order, imposed by the Wodonga Magistrates' Court on 26 October 2022, in respect of an offence specified by Schedule 2, item 22(b) of the Bail Act, namely, an offence against s 77 of the Crimes Act (aggravated burglary).
62 Accordingly, s 4AA(2)(c)(iv) and s 4A(1A) provide that the application for bail must be refused, unless the applicant establishes that exceptional circumstances exist that justify the grant of bail.
63 In determining whether exceptional circumstances have been established, I am required to take into account the 'surrounding circumstances', which include those specified by s 3AAA(1) of the Act.
64 In order to establish the existence of exceptional circumstances justifying his release on bail, the applicant must demonstrate the existence of circumstances, which are such as would take the case out of the ordinary.[1] One matter, that is considered to be important in determining whether exceptional circumstances have been established, is the presence or absence of factors, which may point to the applicant constituting an unacceptable risk in any of the respects specified by s 4A(1) of the Act.[2]
65 If the applicant establishes such exceptional circumstances, s 4D and s 4E (1) (a) (i) of the Act provide that the application for bail must be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would (inter alia) endanger the safety or welfare of another person, whether by committing an offence that has that effect, or by any other means. The respondent bears the burden of demonstrating the existence of such an exceptional risk.[3] Section 4E(3) of the Act provides that, in considering whether any such risk is unacceptable, the court must take into account the surrounding circumstances, including those specified in s 3AAA of the Act.
66 As I have noted, the applicant is a man of Aboriginal heritage, being a member of the Wiradjuri people. Section 3A and s 3AAA(1)(h) of the Bail Act provide that, in making a determination under the Act, the Court must take into account any issues that arise due to a person's Aboriginality, including the importance of maintaining and supporting the development of an Aboriginal person's connection to culture, kinship, family, Elders, country and community.
67 In HA (a pseudonym) v The Queen,[4] the Court of Appeal described the significance of those provisions in the following terms:
68 On behalf of the applicant, it was submitted that the requisite exceptional circumstances comprise a combination of factors. In particular, the applicant has already spent 447 days in custody on remand. It is submitted that the time so spent on remand would exceed any term of imprisonment imposed on the applicant. Further, counsel relied on the fact that the applicant is an Aboriginal person, and that there are culturally appropriate support services available to him. Further, it was noted that the applicant has a stable address available to him if he were to be released. He has poor physical health, and, based on the report of Dr Cunningham, he is likely to find a term of custody more onerous due to his PTSD. Finally, counsel relied on the availability of treatment to the applicant through the CISP program.
69 Counsel for the applicant realistically accepted that if the applicant were released on bail, there would be a risk that he would drive a motor vehicle while affected by drugs, and, in doing so, would endanger members of the public. However, it was submitted that that risk is not unacceptable in all the circumstances. Counsel submitted that, if the applicant were released on bail, he would have a stable address in which to reside. In that respect, counsel relied on the affidavit of Ms Kirchen, in which she deposed that she has not consumed illicit substances for 15 months, and that her father no longer resides at that address. Counsel also noted that, if the applicant were released on bail, he would have available assistance through CISP, and he would also be able to engage with his Aboriginal culture through the Mungabareena Aboriginal Corporation. Counsel explained that on the last occasion on which the applicant was released, he had some difficulties in connecting with Mungabareena, which have now been resolved.
70 Counsel further submitted that, in determining whether the relevant risk is unacceptable, it is relevant to take into account the period of time in which the applicant has already been on remand. In that respect, counsel noted that the applicant has had serious health issues, and it was submitted that the treatment available to him in custody is not as forthcoming as would be available to him if he were released on bail. In addition, counsel noted that Dr Cunningham considers that the applicant's PTSD is aggravated while he is held in custody.
71 Based on those matters, counsel for the applicant submitted that the applicant would not constitute an unacceptable risk of endangering the safety of others, if he were released on bail subject to specific conditions, which include that he not drive a motor vehicle, that he not consume drugs, that he abide by a curfew, and that he report to and comply with all conditions stipulated by CISP.
72 In response, counsel for the respondent accepted that it is open to the Court to conclude that the applicant has established the requisite exceptional circumstances justifying the grant of bail. However, counsel submitted that if the applicant were granted bail, there would be an unacceptable risk that he would endanger the safety or welfare of others, particularly by consuming drugs and, while in such a condition, driving a motor vehicle.
73 In that respect, counsel noted that, following his sentencing in October 2022, the applicant was released from custody on a Community Correction Order on 10 January 2023. Subsequent to his release, he engaged in a series of offending between 11 February 2023 and 8 April 2023, that are the subject of the charges laid by Senior Constables Baker, Doyle, Deverell, Farano, and Causer. The offending continued until the applicant's arrest, and being detained in custody, on 13 April 2023.
74 Further, counsel noted that after the applicant was released on bail on 6 May 2024, he subsequently engaged in the offending on 7 July 2024 that was the subject of the charges laid by Senior Constable Larkin. On 18 July, his bail was revoked, after he was located in a motor vehicle in a paddock while substance-affected.
75 Counsel further submitted that the proposed condition, that the applicant reside with Ms Kirchen at her address in Wodonga, would be unlikely to deter the applicant from further offending if he were released on bail. Counsel noted that Ms Kirchen was a co-accused with the applicant in respect of the charges on which he was convicted and sentenced in October 2022. Further, subsequently, the applicant was released on bail on 6 May 2024 on the condition that he reside at the Wodonga address. Notwithstanding that condition, he re-offended.
76 Counsel for the respondent further noted that the applicant has not had a good history of engaging with CISP when released on bail. In particular, after his release on bail on 6 May, he engaged with CISP for a short period, but then disengaged after 13 June. The applicant then resorted to using drugs, and engaged in further offending.
77 Counsel for the respondent further submitted that, if the applicant were released on bail on condition that he not drive a motor vehicle, such a condition would be unlikely to deter him from doing so. In that respect, counsel noted that the applicant has never held a Victorian driver's licence, and that, in 2021, he was disqualified from driving a motor vehicle for three years. Those circumstances had not deterred the applicant from illegally driving a motor vehicle on a number of occasions while affected by illicit substances.
78 Based on those matters, counsel submitted that, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety and welfare of others, particularly by driving a motor vehicle while intoxicated by illicit substances.
79 The first question is whether the applicant has established the requisite exceptional circumstances justifying his release on bail. As I have noted, the respondent has accepted that it would be open to conclude that such circumstances have been demonstrated on behalf of the applicant. In my view, that concession is quite appropriate.
80 The principal relevant circumstance is the delay in the resolution of the charges, and, in particular, the period of time which the applicant has already spent on remand. Since the applicant was first arrested on 13 April 2023, he has spent some 457 days on remand. If he were not granted bail, he would serve at least another two months on remand. It is not possible, or appropriate, to postulate the nature or length of any sentence, which might be imposed on the applicant on the resolution of the charges against him. However, there is at least a realistic possibility, if not probability, that if the applicant is not released on bail, the time that he would spend in custody would exceed any sentence of imprisonment which might ultimately be imposed on him.
81 That consideration, of itself, is sufficient to constitute an exceptional circumstance in the present case. The other matters relied on by the applicant reinforce that conclusion. In particular, the applicant does have quite serious health issues, and, based on the report of Dr Cunningham, his psychological condition may be exacerbated by any further period of custody. There is available to the applicant appropriate services through CISP to assist him to rehabilitate into society. The prospect that the applicant, as an Aboriginal person, might embark on the step of connection with his culture through the Mungabareena Aboriginal Corporation is a further consideration that adds to the conclusion that the requisite exceptional circumstances have been established.
82 The question, then, is whether, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety and welfare of others.
83 It is, understandably, common ground in the application that if the applicant were released on bail, there would be a specific risk, namely, that he would succumb to the temptation to use illicit substances and, while in that condition, drive a motor vehicle in a manner which might endanger members of the public.
84 The applicant has a longstanding history of abuse of illicit substances. Coupled with that, he has a number of previous convictions for driving a motor vehicle while either unlicensed or disqualified, in circumstances which suggest that, at that time, he was affected by the consumption of drugs. The applicant does not have a good record of complying with conditions of bail, and his spate of offending, whilst subject to the CCO imposed by the County Court in October 2022, is a matter of particular concern.
85 In those circumstances, the critical issue is whether the specific risk in question, of the applicant endangering the safety and welfare of others if released on bail, is unacceptable. As I have earlier noted, that issue must be addressed, taking into account the 'surrounding circumstances' specified in s 3AAA of the Act, and also taking into account the considerations relating to the applicant's Aboriginality as specified in s 3A.
86 In considering that question, a number of particular factors are relevant.
87 First, the fact that the applicant, if released on bail, would have available appropriate accommodation is a matter which, ordinarily, would mitigate the relevant risk. In the present case, that consideration is of less weight, in view of the fact that the applicant has previously engaged in offending while residing with his partner, Ms Kirchen, at her address in West Wodonga. Nevertheless, Ms Kirchen has deposed that she has been abstinent from the use of drugs during the last fifteen months, and that her father has been excluded from attending at the premises. Ms Kirchen has a number of serious health issues, and she is also endeavouring to assist her mother, who has recently been diagnosed with early onset dementia of the Alzheimer's type. If the applicant were released on bail, he would be available to assist in caring for Elaina and Ms Kirchen. In that context, that consideration might operate as an incentive to the applicant to avoid engaging in the kind of conduct which would result in his return to custody.
88 More significantly, the applicant has available to him support of CISP. The applicant has certainly had a chequered history in engaging with that program. Nevertheless, as noted in the most recent CISP report, if the applicant were to engage with CISP, he would have appropriate guidance and assistance in connecting both with the Mungabareena Aboriginal Corporation, and also with Gateway Health for ongoing drug support.
89 The applicant has not previously been engaged with Mungabareena Aboriginal Corporation. It appears that there were some difficulties, which hampered his previous attempt to do so. However, it is evident that the applicant does have a genuine desire to connect with his Aboriginal culture by accessing the program provided by Mungabareena. As the Court of Appeal observed in HA,[6] it is the experience of the courts that reconnection of an Aboriginal offender with culture and Country can play a significant role in the successful rehabilitation of that person.
90 Each of those matters, to which I have referred, are relevant in addressing the risk that the applicant, if released on bail, might re-offend by consuming illicit substance and, while so affected, illegally drive a motor vehicle in a manner which might endanger the general community.
91 It must be acknowledged that those matters, while quite substantial, nevertheless could not alone realistically remove the material risk in question. As I have noted, however, in determining whether that risk is unacceptable, it is necessary to take into account the relevant surrounding circumstances, including those prescribed by s 3AAA of the Act.
92 In the present case, those circumstances include the following. The applicant has already spent a significant period of time on remand, and, if he were not released on bail, there may be a quite substantial delay before his matters are finally resolved. In those circumstances, it is relevant that the applicant does have some health, and psychological, issues, which render his time in custody more onerous. The prospect that the applicant might reconnect with his Aboriginal heritage, and, through that, embark on a path to reform, is a specific relevant circumstance, recognised by s 3A of the Act.
93 If the applicant were released on bail, he would be subject to specific conditions. They would include that he reside at the premises in West Wodonga, that he abide by a curfew, that he not consume any illicit substances, and, most importantly, that he submit to urine testing and provide the results of that testing to the Informant as directed by the Informant. That last condition should assist to deter the applicant from resorting to the consumption of illicit substances. It should also enable the Informant to readily detect if the applicant were to breach the condition of his bail that he not use illicit substances.
94 As an added assurance, I consider that this is a case in which there should be a process of judicial monitoring of the applicant's conduct on bail in order to oversee his compliance with its terms. Accordingly, I would also order that the applicant appear for bail monitoring before the Court on 26 September next, and that he must appear on any further dates for bail monitoring as appointed by this Court during the term of his bail.
95 Taking those matters into account, I am not satisfied that, if the applicant were released on bail, the risk that he would endanger the safety and welfare of others, is unacceptable.
96 Accordingly, I propose to make an order that the applicant be admitted to bail on his own undertaking and subject to the following special conditions:
(1) The applicant appear at the Wodonga Magistrates' Court on 18 September 2024 and then surrender himself, and must not depart without the leave of the Court.
(2) The applicant reside at 3 Simmons Court, West Wodonga in the State of Victoria.
(3) The applicant remain at, and not depart from, the premises at 3 Simmons Court, West Wodonga between the hours of 9:00 pm and 6:00 am.
(4) The applicant present himself at the front door of the premises of 3 Simmons Court, West Wodonga during curfew hours if called upon by a member of Victoria Police to do so.
(5) Within 24 hours of his release on bail, the applicant contact the Court Integrated Services Program (CISP) case manager, Ms Jocelyn Richardson, and thereafter comply with all lawful directions of any officer of CISP and attend all appointments as directed by CISP.
(6) The applicant not drive any motor vehicle or motorcycle.
(7) The applicant not consume any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(8) The applicant attend at, and provide a urine sample to, Dorevitch Pathology Centre, 137 High Street Wodonga, within 24 hours of being a direction to do so by the Informant or his nominee.
(9) The applicant is not to leave the State of Victoria unless for the purposes of engagement with CISP.
(10) The applicant is not to attend any points of international departure.
(11) The applicant is to report to the officer in charge at the Wodonga Police Station every Monday and Friday between the hours of 9:00 am and 6:00 pm.
(12) The applicant must not contact, directly or indirectly, any witnesses for the prosecution, except the Informant.
(13) The applicant must not contact, directly or indirectly, any co-accused, including Sarimah Iceley, for the duration of the bail period.
(14) The applicant must appear for bail monitoring before the Court at 10 am on 26 September 2024 via WebEx and must appear on any further dates for bail monitoring appointed by this Court during the course of this Order.
[1] Re Tong [2020] VSC 141, [18] (Tinney J); Re Pope [2022] VSC 735, [6] (Priest JA).
[2] Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
[5] Ibid [58]-[59] (Maxwell P, Kaye JA); see also Re Hooper [2021] VSC 476, [52]-[53] (Tinney J).
[6] [2021] VSCA 64, [58]-[59].