Re Males [2024] VSC 802 (18 December 2024)

2 The applicant is charged with a number of offences which are alleged to have occurred between 1 February 2021 and 4 July 2024:

(a) Traffick a drug of dependence, namely Cannabis, in a quantity that it not less than a commercial quantity;

(b) Traffick a drug of dependence, namely Amphetamine, in a quantity that it not less than a commercial quantity; and

(c) Traffick a drug of dependence, namely Methylamphetamine.

3 The applicant is also charged with trafficking Amphetamine between 9 March 2024 and 4 July 2024.

4 In addition, the applicant is charged with a number of offences alleged to have occurred on 4 July 2024:

(a) Traffick a drug of dependence, namely Cocaine;

(b) Possess a drug of dependence, namely Cocaine;

(c) Possess a drug of dependence, namely Cannabis;

(d) Possess a drug of dependence, namely Methylamphetamine;

(e) Possess a drug of dependence, namely Dexamfetamine Sulfate;

(f) Deal with property, being $2,120, suspected of being the proceeds of crime; and

(g) Possess a prohibited weapon, namely a machete, without an exemption or approval under the Control of Weapons Act 1990.

5 The applicant further faces a charge for failing to provide information or assistance that is reasonably necessary to access data held in an iPhone on 5 July 2024.

6 On 23 July 2024, the applicant received further charges:

(a) Possess a drug of dependence, namely MDMA;

(b) Possess a drug of dependence, namely Cannabis; and

(c) Failure to provide information or assistance to police that is reasonably necessary to access data held in an iPhone.

7 At the time of the application for bail, the applicant was further summonsed for a charge of unlawful assault on 12 August 2023.

8 The applicant was charged and bailed on 4 July and 23 July 2024.

9 On 30 September 2024, the applicant was charged and refused bail in the Bendigo Magistrates' Court on the basis that she had failed to demonstrate exceptional circumstances justifying the grant of bail.

10 The applicant's matter is next listed for a Committal Mention on 8 January 2025.

11 The offending in this matter is quite succinctly summarised. Police commenced an investigation into the applicant's activity and arrested her on 4 July 2024. Text messages on the mobile phone seized from the applicant reveal that the applicant had been involved in the distribution of illicit substances, including cannabis, cocaine, amphetamine, methylamphetamine and ecstasy, from at least January 2021. This included the involvement of her brother, Tony Males, as a driver on multiple occasions.

12 On 4 July 2024, the applicant's brother was arrested after departing the applicant's house with two large black garbage bags containing a total of 6.735kg of cannabis. Shortly before 10pm that night, the applicant was intercepted by police and a sandwich bag of cocaine was located on her person, along with a sum of cash and two containers of dexamfetamine sulphate. A search warrant executed at the applicant's address on that day further revealed cannabis and methylamphetamine. The applicant was charged and bailed to appear on a later date.

13 Further warrants were executed on 23 July 2024 and MDMA, firearm ammunition, a sword and cannabis were located at the applicant's address. On 30 September 2024, the applicant admitted that the mobile phone seized on 4 July, and containing the extensive text message conversations, belonged to her.

14 In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 ('the Act').

15 Any accused person has a prima facie entitlement to bail unless the Act requires refusal.[1] There also certain circumstances, outlined in s 4AAA, in which bail must not be refused.

16 Section 4AA of the Act outlines the circumstances in which a two-step test applies to the determination of whether to grant bail. In this case, the applicant is charged with an offence listed in Schedule 1 of the Act (trafficking a drug of dependence in a quantity not less than a commercial quantity). Pursuant to s 4AA(1), the application is subject to the Step 1 - exceptional circumstances test set out in s 4A.

17 Bail must be refused if the applicant is unable to satisfy the Court that there are exceptional circumstances justifying the grant of bail.

18 The exceptional circumstances test is an 'elusive' concept.[2] Exceptional circumstances may exist as the result of a single exceptional circumstance, or through a combination of factors.[3] These may include the strength of the prosecution case, undue delay or the applicant's personal circumstances.[4] Pursuant to s 4A(3), the Court must have regard to the surrounding circumstances set out in s 3AAA(1).

19 Even where the applicant is able to demonstrate that exceptional circumstances exist, the Court must still refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1) of the Act, and that the risk is unacceptable.[5] This once again requires consideration of the surrounding circumstances as set out in s 3AAA(1) of the Act, along with consideration of whether the imposition of any bail conditions would mitigate the risk to an acceptable level.

Determination in relation to an Aboriginal person

20 Pursuant to s 3A of the Act, in making a determination in relation to an Aboriginal person, the Court is required to take into account any issues that arise due to that person's Aboriginality, including -

(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;

(b) the risk of harm and trauma that being in custody poses to Aboriginal people;

(c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;

(d) any issues that arise in relation to the person's history, culture or circumstances, including the following -

(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;

(ii) any experience of out of home care, including foster care and residential care;

(iii) any experience of social or economic disadvantage, including homelessness and unstable housing;

(iv) any ill health the person experiences, including mental illness;

(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment;

(vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;

(e) any other relevant cultural issue or obligation.[6]

21 The applicant is a 40 year old woman Aboriginal woman, connected to the Wamba Wamba and Perrepa Perrepa peoples through her maternal grandmother.

22 The applicant was born in Owen, but moved around extensively as a child. She is the middle of seven children. Her mother suffered from mental health problems and both parents abused alcohol daily. Violence was a common feature of her upbringing and the environment was chronically unsafe. From the age of seven or eight she took care of herself, including doing the shopping and laundry.

23 Ms Males experimented with heavy drinking from the age of 11 and drank regularly from the age of 12. She completed school to about Year 10 level and then commenced full-time work at a fish and chip shop. However, she was kicked out of home at the age of 15 and moved to Melbourne.

24 Ms Males has seven children, three with a partner she met when she was 18 and four with her current partner. Both relationships are characterised by family violence. Her first partner was reportedly chaotic, violent and unpredictable. Her current partner was charged with family violence related offences in 2013 and there has been involvement from the Department of Human Services with the family.

25 Ms Males returned to Bendigo in her mid-thirties and commenced using illicit substances about five years ago. She has reportedly been using four to six Dexamphetamine tablets daily and heavy cocaine and amphetamine usage over the weekend (along with alcohol).

26 Five of the applicant's children still reside at home. The Court was provided with extensive materials that demonstrate the various challenges and needs of her children, including Hirschprung's disease, learning difficulties and autism.

27 The Court was also assisted by a psychological assessment of Mr Luke Armstrong. Mr Armstrong's report provided much of the applicant's background information. Mr Armstrong considers that the applicant presents with Dependent Personality Disorder, a condition that sees the applicant help and sacrifice her own needs out of a desperate attempt to be wanted. Mr Armstrong further considers that the applicant presents with Alcohol Use Disorder, Stimulant Use Disorder and gambling problems.

28 The applicant has a limited criminal history and her most recent offending was theft in 2002.

29 The applicant relies upon a combination of surrounding circumstances to demonstrate that there are exceptional circumstances justifying the grant of bail. In particular, the applicant points to the potential triable issues in this case about the alleged quantity of drugs trafficked. Considering the inevitable role of the Bugmy v The Queen[7] principles in any future sentencing exercise, the applicant considers that she will likely serve more time on remand than her eventual sentence. The applicant further submits that she has a limited criminal history and that this is her first time in custody.

30 The applicant notes the application of s 3A of the Act in this matter, and points to services available to her on bail, especially a referral to the culturally appropriate supports of Wukangu Manya and Ngwala Willumbong through the Bendigo and District Aboriginal Co-operative. Additionally, the applicant has been assessed as suitable for the Motivating Self Control (MASC) program. This would include twice weekly urine testing conducted through her GP and monitored by the treating psychologist, outpatient treatment and the potential for residential treatment if she relapses.

31 The applicant further submits that her role as a primary carer for five children is important, along with her carer duties to two of her adult children. Finally, the applicant submits that delay is an important factor, as the matter is likely to take several years to proceed to trial.

32 The applicant submits that all of these factors are relevant to the unacceptable risk test and that any risk can be ameliorated by stringent conditions, including the imposition of a tracking device.

33 The respondent submits that exceptional circumstances have not been established in this matter, especially when considering the seriousness of the offending and the need for the circumstances to be 'out of the ordinary', which would include hardship to the family and disruption to work.[8]

34 The respondent submits that the case against the applicant is strong and supported by powerful evidence from her phone. This offending is also said to have occurred at a time when many of the applicant's asserted protective factors, such as her relationships and child responsibilities, were in place. This limits the mitigatory effect of these considerations. The respondent further notes that there is no evidence that the applicant's children are presently not adequately cared for while she is on remand. The respondent submits that the applicant's enterprise was far from shambolic. Instead, she was able to sustain a large-scale drug trafficking operation from the very address where she hopes to reside on bail.

35 Even if exceptional circumstances exist, the respondent submits that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, especially by running a drug trafficking enterprise that endangers the entire community. No conditions are said to be able to mitigate this risk.

Section 3A

36 I have written previously about the significant reforms to the Bail Act 1977 this year and it is not necessary to repeat that discussion in any great length.[9]

37 However, it bears reiterating that the recent bail reforms introduce an additional lens or filter to any application for bail involving an Aboriginal person. Each stage, whether it is the exceptional circumstances, show compelling reason or unacceptable risk test, must be considered by referring to a central question: is there a 'good reason' to contribute to the systemic overrepresentation of Aboriginal and Torres Strait Islander people in custody? This enquiry requires the Court to consider the applicant's personal circumstances within the broader context of an unavoidable past and present situation for Aboriginal people, and the bail decision-maker's role in a (potentially) avoidable future.

38 The considerations in s 3A are for the decision-maker. However, it behoves the representatives in a bail application involving an Aboriginal person to frame their submissions with proper regard to these factors. I have given serious consideration to their impact on this application.

39 A person's Aboriginality is not necessarily an exceptional circumstance by itself. However, it is important to consider the applicant's circumstances through the lens of s 3A, especially the general considerations in s 3A(a)-(c).

40 In the present application, the applicant relies on her role as a primary carer for her five children, the inherent delay of complex matters like this one, the availability of supports, and her lack of a criminal history. Taken altogether, these factors may well constitute exceptional circumstances by themselves. When viewed through the prism of s 3A, the finding becomes almost irresistible.

41 Ms Males is at the very beginning of her engagement with the custodial system. The only contact she has previously had with the justice system resulted in a bond with non-conviction and, on another occasion, a fine. This occurred over 20 years ago. It is reasonable for the purposes of this application to consider that Ms Males does not have a criminal history. This is a weighty factor.

42 That is not to minimise the charges. This is undoubtedly significant offending, especially for a woman not otherwise known to the law, and the illegal drug trade has dire consequences for all aspects of our society. The offending has the potential to carry a lengthy sentence, even though there appear to be triable issues in this matter.

43 Despite this, the complexity of any trafficking matter will undoubtedly cause some delay. While this is not the type of inordinate delay that constitutes an exceptional circumstance by itself, it will represent an extended period in which an Aboriginal woman with substance abuse issues will remain on remand awaiting a trial. It is the combination of these factors that take this case towards establishing exceptional circumstances.

44 It is preferable to consider an application for bail as a possible inflection point. Ms Males has the motivation and the access to services while she is on bail that may address a drug addiction that appears central to her offending. She has the opportunity to engage in the MASC program and she is willing to finance this service herself. The opportunity to address addiction or mental health is critical for any application for bail. And for Ms Males, it is an opportunity to reduce the over-representation of Aboriginal people in custody and to protect against the criminogenic environment of custody.

45 What is equally clear is that incarceration has a lasting impact on the families and children of the offender. The incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes.[10] I reject the submission that Ms Males' children are doing fine while their mother is on remand. The children of incarcerated persons are the 'invisible victims' of the criminal justice system.[11] The parenting duties and the objective of keeping families together is a significant factor in any application. When I consider the historic separation of Aboriginal families, along with Ms Males' own difficult family upbringing, I see no good reason to contribute to her continued incarceration at this stage. I therefore consider that there are exceptional circumstances justifying the grant of bail.

46 There is very real risk that Ms Males will re-offend. She has demonstrated a capacity to manage an extensive trafficking operation from the very location where she hopes to reside on bail and it is difficult to envisage conditions that will address this risk.

47 Any application for bail has risk. The question is whether the risk is acceptable. As I have said on previous occasions, section 3A adds an important dimension to the consideration of whether the risk is acceptable. We must consider whether the risk Ms Males poses is so high that we are also willing to accept the ongoing incarceration of another Aboriginal person.

48 The factors that go to demonstrating exceptional circumstances are equally applicable to the unacceptable risk test. Most importantly, I consider that the availability of alcohol and drug counselling, which is clearly the biggest risk factor for the applicant, presents an important protective factor. Ms Males has agreed to undertake twice weekly urine testing as a condition of bail. A deviation from her apparent commitment to recovery is also likely to indicate an increased risk that she will continue to offend.

49 On balance, I consider that Ms Males does not pose an unacceptable risk of endangering the safety of any other person.

50 For the above reasons, I am satisfied that Kellyenne Males be admitted to bail on her own undertaking and on the following special conditions:

(a) She attend the Bendigo Magistrates' Court on 8 January 2025, and then surrender herself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender herself into custody.

(b) She reside at [Males address] in Victoria, and not change that address without the leave of the Court.

(c) She remain at those premises between the hours of 11pm and 6am each day for the duration of bail.

(d) She present herself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.

(e) She report Tuesday and Friday to the Officer in Charge of the Police Station at Bendigo. or his or her nominee, between the hours of 8am and 6pm.

(f) She abstain from the consumption of any alcohol or the consumption or possession of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.

(g) She attend an appointment with Ms Tracey Allen on 13 December 2024 via phone or zoom and in-person at [business address], on 17 December 2024, and comply with all lawful directions of Ms Allen until the completion of the MASC program, including all urine testing.

(h) She not contact, directly or indirectly, the co-accused, being Tony Males, for the duration of the bail period.

(i) She not contact, directly or indirectly, any witness for the prosecution, except the informant.

(j) She not leave the State of Victoria.

(k) She surrender any passport she may have to the informant within 24 hours and not apply for a passport or any travel documentation.

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

(m) She possess or use only one mobile telephone.

(n) She must:

(i) provide the informant or his nominee with the telephone number, IMEI number and any password or PIN of that mobile telephone within 24 hours of having access to that mobile telephone;

(ii) produce the mobile telephone for inspection upon the request of any member of Victoria Police;

(iii) provide any password or PIN for that mobile telephone upon the request of any member of Victoria Police;

(iv) not engage in any encrypted communications; and

(v) not install any applications on her mobile telephone that will allow for encrypted communications.

[1] Pursuant to s 4.

[2] Re Gloury-Hyde [2018] VSC 393, [30].

[3] Re Logan [2019] VSC 134, [13].

[4] Re CT [2018] VSC 559, [65].

[7] [2013] HCA 37; (2013) 249 CLR 571.

[8] The respondent quoted Beach JA in Re Sipser [2019] VSC 362, [43], to support this submission.

[9] See Re Terei [2024] VSC 294; Re Terei (No 2) [2024] VSC 352; Re Terei (No 3) [2024] VSC 423; Re McLaughlin [2024] VSC 706.

[10] Bugmy Bar Book Committee, 'Impacts of Imprisonment and Remand in Custody' in Bugmy Bar Book (online, November 2022), 15-16.

[11] Bugmy Bar Book Committee, 'Incarceration of a Parent or Caregiver' in Bugmy Bar Book (online, September 2023), 1.