Re MM [2024] VSC 23 (12 February 2024)

2 The applicant has one co‑accused, WT, who is her former partner and the father of her biological son ST. WT also has two daughters, BT and MT, to a former partner. He has pleaded guilty to one charge of producing child abuse material; one charge of distributing child abuse material; four charges of incest; two charges of administering an intoxicating substance for a sexual purpose; and one charge of possessing child abuse material. He is currently serving a custodial sentence for those offences.

3 The applicant intends to contest the charges against her on the basis of alleged duress by the co‑accused.

4 Between October 2020 and August 2021, police undertook an investigation into WT's activities after child abuse material depicting his children (one of whom he shared with the applicant) was identified on online platforms.

5 On 11 August 2021, WT was arrested, charged and remanded in custody.

6 On 22 October 2021, the applicant was arrested, charged and released on bail. At the time, the applicant was pregnant and it was a higher‑risk time to be in custody due to the COVID‑19 pandemic.

7 On 6 May 2022, the applicant was committed to stand trial in the County Court. She remained on bail pursuant to a grant of trial bail made in the Magistrates' Court. The trial was fixed to commence on 24 May 2023.

8 On 30 October 2022, the applicant was arrested and charged by First Constable Emma Herbert with possessing a drug of dependence, after her handbag was searched and a syringe with clear liquid (alleged to be GHB) was found inside. She was granted bail, and remains on bail in that matter.

9 On 12 April 2023, after pleading guilty to the charges against him, WT was sentenced in the County Court to 11 years and 2 months' imprisonment, with an eight year non‑parole period,[4] thus indicating the seriousness of the offences to which he has pleaded guilty.

10 On 27 April 2023, the applicant's trial (which was due to commence on 24 May 2023) was vacated due to a pending special leave application in the High Court in the unrelated matter of Rohan (a pseudonym) v The King ['Rohan'].[5]

11 Between September 2022 and April 2023, the applicant failed to appear, or appeared late, at a number of listed court hearings. In this context, and after the applicant again failed to appear at a further hearing in April 2023, on 2 May 2023 the County Court issued a warrant to arrest the applicant.

12 On 30 May 2023, the warrant issued in the County Court was executed and the applicant was remanded in custody.

13 On 21 June 2023, after a further application for bail was made in the County Court, the applicant was again released on bail with various conditions including that she report to Dandenong Police Station weekly ['reporting condition'].

14 On 11 August 2023, the applicant was arrested and charged by Constable Jarad Alston with a single offence of theft, after she was stopped while exiting a department store with $136.00 of underwear and clothing items that she had not paid for. She was granted bail in that matter, which she remains on.

15 Between July and December 2023, the applicant failed to comply with her reporting condition on numerous occasions. On 4 December 2023, the prosecution filed an application to revoke the applicant's bail in the County Court.

16 On 15 December 2023, the County Court revoked the applicant's bail in her absence and a warrant was issued for her arrest, which was executed the same day.

17 Having been brought before the County Court on 21 December 2023, a further application for bail was refused on the basis the applicant posed an unacceptable risk of failing to answer bail.

18 On 22 December 2023, the applicant filed an application for bail in this Court.

19 The matter is next listed for a directions hearing in the County Court on 19 February 2024. At the time of writing, it is understood no trial date has been fixed in this matter due to the pending outcome of the special leave application in Rohan.

(a) the applicant's son, ST, who she shares with the co‑accused WT, and who was six months old at the time of the alleged offending;

(b) WT's daughter, BT, who he shares with a former partner and who was five years old at the time of the alleged offending; and

(c) WT's daughter, MT, who he shares with a former partner and who was seven years old at the time of the alleged offending.

21 The applicant and WT were in a relationship and living together at all relevant times. ST lived full‑time with them, and BT and MT stayed with them on weekends and at other occasional times when their mother was working.

22 The charges against the applicant arise from two specific incidents in March and July 2020, which were not reported to police at the time but were identified when images and video recordings from the incidents (as well as other incidents the applicant is not alleged to have been involved in) were discovered by international police on the dark web in or around August 2021. At the time they were discovered, WT was already under investigation by local police in relation to child abuse material that had been uploaded to Snapchat in September 2020.

23 At 9:30pm on 7 March 2020, the applicant was in her bedroom with ST, who was six months old at the time, when WT walked in and told her that he wanted to "fuck [ST] in the arse" with the applicant's help. ST's nappy was removed and he was placed face down on a towel on top of the applicant's and the co‑accused's bed, while the applicant and WT held their hands over ST's bottom (WT's hand over the applicant's hand), as WT penetrated ST's anus with his erect penis for one minute. It is alleged that WT tried to push his penis further into ST's anus, which caused ST to cry. The applicant then told WT to stop and took ST to another room, where she examined him and found that his anus was bleeding.

24 WT took two photographs of the offending on his phone, both of which depicted the applicant's hand, with WT's hand over it, on ST's bottom as WT penetrated ST's anus.

25 On 2 July 2020, it was arranged that BT and MT would stay at the house shared by the applicant and WT, on a mattress in their lounge room.

26 Sometime that same day, WT drew an image of an infant on the applicant's stomach - positioned above her vagina - and told her that he wanted to see something other than her face all the time. The two engaged in sexual activity and the applicant formed the belief that WT "wanted to do stuff to the kids".

27 Later, WT asked the applicant to get something that would get the children to sleep, and said to her that he wanted to fuck BT and MT. The applicant contacted a friend and, citing teething issues, asked her how she got her own children to sleep. The friend recommended Melatonin or Phenergan, and the applicant asked her to bring some over to the house, stating that WT would pay her.

28 When the friend arrived at the house, the applicant met her in the driveway and took from her a syringe and a bottle containing 1.5 to 2 millilitres of Melatonin. The friend advised the applicant how to use it, stating she should administer 0.3 millilitres.

29 Before BT and MT went to bed, they were given an unknown quantity of Melatonin and/or Phenergan. WT instructed the applicant to let him know when BT and MT fell asleep.

30 At 12:44am on 3 July 2020, the applicant checked on BT and MT in the loungeroom and then sent a text message to WT (who was in a shed outside) to let him know BT and MT were asleep. WT returned inside and the applicant locked herself in her bedroom with ST.

31 Between 1:00am and 2:57am, WT proceeded to sexually assault BT and MT on the mattress in the loungeroom. He inserted his fingers into both of their vaginas and used tape to hold BT's labia open and an electrical cable to restrain her ankles. He took at least 24 images and one video of the offending on his phone.

32 The full extent of the sexual offending, and whether BT or MT were conscious at any stage of it, is unknown.

33 On 11 August 2021, WT was arrested and denied the allegations against him in a record of interview. He was charged and remanded in custody, and later pleaded guilty to and was sentenced for the offences with which he was charged.

34 On 22 October 2021, the applicant was arrested and transported to Dandenong Police Station. During a record of interview, she denied any involvement in or knowledge of sexual offending by WT against BT or MT at first. However, she later stated that:

(a) WT had no sexual interest in her and was more touchy‑feely and affectionate with BT and MT, which made her feel upset and jealous. WT would lock himself in the laundry with BT and MT, and she suspected he was sexually offending against them;

(b) she only contacted her friend to enquire about a sleep‑inducing substance at WT's request, WT was the one who took possession of the substance, and she had nothing to do with it and did not know if WT had actually given it to BT and MT;

(c) she knew WT was intending to sexually offend against BT and MT because he told her he wanted to fuck them, and she knew he was interested in sex with children, but had not wanted to think about it;

(d) she checked on BT and MT to make sure they were asleep before informing WT and then locking herself in her bedroom with ST, stating she did not want to be a part of it because she had herself been sexually abused as a child;

(e) she did not know exactly what WT did to BT and MT because she was not present; and

(f) in relation to the offending against ST, the applicant said she was an unwilling participant whose involvement had been forced by WT. She said WT had been watching child pornography prior to the offending, and then came into the bedroom (where the applicant and ST were) and asked - with reference to the child pornography - if he could try it on ST, stating that he wanted to "fuck [ST] in the arse" and wanted the applicant to help him. The applicant said ST's nappy was then taken off and WT held her hand on ST's bottom while he inserted his penis into ST's anus, "past the knob", for about a minute before attempting to push it further in, causing ST to cry. She said that she told WT to stop and took ST into another room so she could examine him for injuries. She said further that ST's anus was bleeding, and his next bowel movement had blood in it, but was okay after that.

35 This application is governed by the Bail Act 1977 ['the Act']. It is intended that the Act be applied and interpreted having regard to the guiding principles set out in section 1B(1), including maximising the safety of the community and persons affected by crime to the greatest extent possible; and taking account of the presumption of innocence and the right to liberty.[6]

36 The court must refuse bail unless, if after taking into account the relevant surrounding circumstances in section 3AAA(1) of the Act, it is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[7] This is because the applicant is charged with a Schedule 2 offence (sexual penetration of a child or lineal descendant)[8] within the meaning of section 3 of the Act.[9] It is not disputed between the parties that the compelling reason test applies to this application.

37 The phrase 'compelling reason' is not defined in the Act. Its meaning was discussed first in Re Ceylan,[10] and further in a number of subsequent decisions of this court. The relevant principles were summarised by the Court of Appeal in Rodgers v The Queen:[11]

(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.

(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.

(3) A compelling reason is one which is forceful and therefore convincing - a reason which is 'difficult to resist'.

38 If satisfied that a compelling reason exists at step 1, the court must still refuse bail if satisfied by the prosecutor, again having regard to the surrounding circumstances, that there is an unacceptable risk that the applicant, if released on bail:

(a) would endanger the safety and welfare of any person, commit an offence, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with conditions of bail; and

(b) that conditions of bail cannot mitigate the risk so that it is not unacceptable.[12]

39 The court is required to make inquiries of the prosecutor as to whether there are any family violence intervention orders ['FVIOs'], family violence safety notices, or other recognised domestic violence orders in force against the applicant.[13] In addition, because the applicant is charged with family violence offences,[14] the court is required to consider whether - if she were released on bail - there would be a risk that she would commit family violence and, if so, whether that risk could be mitigated by the imposition of a condition or the making of an FVIO.[15] The existence or otherwise of any FVIO or other domestic violence orders was not asserted or addressed by the parties.

40 The applicant is a 28 year old woman with a mild intellectual disability. She was born and raised in Morwell, and has two brothers and a maternal half‑brother who each have special needs. The applicant was raised by her parents in what she described as a relatively stable home environment with her basic needs being met, however, she reported incidences of sexual assault as a young child and as a high school student.

41 The applicant struggled in school both socially and academically and started using drugs in her late teens. She has been supported by the disability support pension since she was 16 years old.

42 The applicant met WT in her early twenties and commenced a relationship with him which she described as extremely abusive. The applicant and WT have two children together, the older child being one of the victims of the alleged offending. That child was removed from the applicant's care following WT's arrest. The younger child was born after WT's arrest and removed from the applicant's care at birth. Both children are currently in state care and the applicant ordinarily has supervised visits. The applicant and WT have ended their relationship, and the applicant entered into a new relationship. That relationship reportedly started off positively, but became abusive and has itself since ended.

Nature and seriousness of the alleged offending and strength of the prosecution case

44 The applicant concedes that the allegations against her are of a very serious nature, however, she submits her alleged role is secondary to the co‑accused's role. In addition, the applicant submits there are a number of triable issues in the matter. These include: the potential of a duress defence (although the applicant acknowledges that this will be somewhat contingent on the outcome of the High Court appeal in Rohan), issues with respect to admissibility of some or all of the applicant's record of interview (in which the applicant appears to have made significant admissions), and issues around knowledge in relation to the charges of producing child abuse material.

Criminal history, bail compliance history and outstanding matters

45 The applicant highlights that she has no criminal history, had never been on bail prior to being charged in the present matter, and was not subject to charges in any other matter at the time of the alleged offending.

46 It is conceded that there have been recent issues with her bail compliance, however the applicant attributes this in part to issues in her second relationship, where her former partner would take possession of her phone, preventing her from being able to maintain contact with support workers and keep track of appointments.

47 Prior to her remand, the applicant was living with WT and his family in Dandenong. If granted bail, the applicant now proposes to live with her mother in Morwell. It is submitted that the applicant is well‑known and supported in the local community, and that her family are strongly supportive of her returning to the family home.

48 The applicant's mother, RJ, gave evidence at the hearing. She stated that, if bailed, her daughter would live with her, her partner and two sons (being the applicant's brothers) in the family home. She gave evidence that the whole family was supportive of the applicant, and would be able to assist her in managing and being transported to various appointments. She stated she would be willing to give an undertaking to report any breaches of bail to the police.

49 RJ also gave evidence that the last time she had lived with the applicant was for around a year, in Cranbourne, from October 2021. RJ stated that the applicant's subsequent partner, DM, had at times been abusive to the applicant and had often taken her phone from her. This made it difficult to contact the applicant when she was previously on bail and living with DM. RJ also stated that the applicant could not be blamed for failing to report under her previous grant of bail, given DM's controlling behaviour, though it was noted in cross examination that DM was arrested and remanded in custody from 27 October 2023.

50 It is also noted that RJ has a number of serious health conditions, which she gave evidence about, and which require regular short stays in hospital in Melbourne.

51 It is submitted that the applicant is a woman with vulnerabilities, including her level of cognitive functioning and history of being a victim of family violence.

52 The applicant relies on a neuropsychological report of clinical neuropsychologist, Dr Laura Scott, dated 13 June 2023. Dr Scott met with and assessed the applicant in custody over a two hour period on 2 June 2023, and prepared a report on the basis of matters reported to her by the applicant, some extrinsic material (including medical and school records), and an interview with the applicant's mother.

53 In her report, Dr Scott notes the applicant reported a history of drug use, sexual abuse, family violence, self‑harming behaviours, suicidal ideation and suicide attempts, and past diagnoses of depression and anxiety.

54 During the assessment Dr Scott administered various psychosocial tests on the applicant, including the Wechsler Adult Intelligence Scale (fourth edition) where the applicant scored as having a full‑scale IQ of 64, which is in the extremely low range. Dr Scott notes that the applicant's impairment affects her ability to learn, process information, concentrate, or plan or anticipate likely outcomes of actions, with other features being rigid, inflexible and disorganised thinking, and issues with impulsivity and becoming overwhelmed by complex information. Dr Scott notes further that the applicant's level of intellectual functioning is poorer than 98% of peers, and that some parts of her cognitive function are similar to the level of an eight or nine year old.

55 In Dr Scott's opinion, the applicant's presentation is consistent with a mild intellectual disability, with significant impairments in cognition and adaptive functioning, against a background of neurodevelopmental delay. Dr Scott notes that the applicant scored in the moderate range for depressive symptoms, and the severe range for anxiety and stress levels on the Depression, Anxiety and Stress Scale. She is of the opinion that the applicant's level of psychological distress likely exacerbates existing impairments in cognitive function. Dr Scott considers that achieving stability in the applicant's mental health may lead to some modest improvement in her cognitive function.

56 Dr Scott discusses the interplay between the applicant's condition and its impact on her experience of custody, stating:

[The applicant's intellectual disability] and her elevated psychological distress would pose a risk in custody. She is somewhat naïve and vulnerable to external manipulation. She is at risk of exposure to antisocial attitudes and forming relationships with inappropriate peers while in custody. She would have difficulty independently evaluating the motivations of other people and would be at high risk of victimisation. Her inattention, poor memory and disorganisation would increase the risk of unintentional breaches and failures to follow commands. She would also be at greater risk of institutionalisation.

[The applicant's] mental health [as at June 2023] appears to have deteriorated since her entry into custody. She reports reduced appetite, low energy levels and excessive daytime sleepiness. She has been very distressed at the separation from her children and appears quite fixated on this. There is a concern that an extended period in custody could cause further deterioration in her mental state including a risk of suicidal and self‑harming behaviours [sic]. She is currently housed in protective custody which ameliorates some risks but possibly increases the risk of poor mental health outcomes due to isolation.

57 In addressing the impact of the applicant's condition on her ability to comply with bail conditions, Dr Scott states:

[The applicant's] globally impaired cognitive function and reduced level of independence in daily function poses a significant challenge to reliably meeting bail conditions. She would be at high risk of forgetting about upcoming appointments without significant reminders in place due to slow learning and unreliable memory recall. She is likely to feel disproportionately confused and distressed about upcoming court appearances due to her reduced understanding and comprehension of information. She also has fewer internal resources to cope with stress and limited capacity to independently seek help when needed. For example, she said she seriously harmed herself by beating her head against a wall in order to avoid attending court on one occasion. She clearly requires much more intensive support with court appearances both in terms of practical (e.g. transport to and from court) and emotional assistance.

[The applicant's] poor concentration, distractibility, poor planning and disorganisation all contribute to increasing the risk of failures to follow requests. She would be at risk of failing to provide necessary documentation, struggling to follow through with tasks independently or becoming overwhelmed and giving up on complex tasks. She has little ability to independently problem solve when faced with a barrier. She would benefit from referral to forensic disability services and access to any special conditions or supports available for offenders with an [intellectual disability].

58 In conclusion, Dr Scott recommends that the applicant engage with NDIS services and complex care coordination supports (as well as other interventions), and highlights strategies that would likely assist the applicant in bail compliance going forward.

59 If granted bail, the applicant proposes to engage with the Flat Out Outreach and Advocacy Program ['Flat Out'], a service funded by the Department of Families, Fairness and Housing. Flat Out supports women in contact with the criminal justice system by providing, among other things, ongoing assessment of legal and non‑legal needs; care coordination and case management; referrals to appropriate services; and support to foster positive connections with family, children and the community.

60 The applicant relies on a letter from Yasmin Elmore, an Outreach Support and Advocacy Worker with Flat Out, dated 20 December 2023. The letter confirms the applicant's connection with Flat Out. Ms Elmore notes that the applicant has been engaging with Flat Out since June 2023, and that - while the applicant's intellectual disability has at times made it difficult for her to engage with Flat Out and attend appointments - the applicant has continued to stay in contact with Ms Elmore. The applicant's frequency of engagement has declined more recently, but Ms Elmore states that Flat Out will continue to support the applicant and actively seek to engage with her, and link her in with suitable supports.

61 Ms Elmore also gave quite detailed evidence at the hearing. She stated that, during her engagement with the applicant, the applicant's ex‑partner, DM, often answered the applicant's phone for her and the applicant had a number of different phones at different times. Ms Elmore has now established good contact with the applicant's mother. She did not hold concerns about RJ's ailments or her commitment to caring for the applicant. Ms Elmore stated she has remained in contact with the applicant during her time in custody, and confirmed she would be able to help the applicant with transport to court at times, as well as with reminders in terms of her attendance at appointments. Appointments would be largely via telephone, with monthly in‑person appointments, given the proposed bail address is in Morwell.

62 Ms Elmore also gave evidence that, if the applicant is released on bail, she would coordinate with the Australian Community Support Organisation ['ACSO'] to formulate a care plan for the applicant. A letter authored by Louise Gunn, a forensic case worker for the applicant from ACSO, dated 15 January 2023, was also filed with the court. In it, Ms Gunn states that ACSO is able to provide three months of post‑release support through its ReStart program, designed to provide "assertive outreach support to help participants to establish supports and community linkages".

63 It is noted that the applicant has been in custody since 15 December 2023, with the matter next listed in the County Court for a directions hearing on 19 February 2024. The trial previously fixed in the matter was vacated awaiting the (still) outstanding application for special leave to the High Court in Rohan, with no clear timeframe as to when the trial is likely to be re‑listed.

64 The applicant noted that the respondent did not press the submission that the applicant is a risk of committing further offences on bail. The applicant submitted that the support to be provided by the applicant's mother and case worker, Ms Elmore, the more stable residence in Morwell with her family, and the absence of her two ex‑partners, would in combination ensure the applicant was able to comply with her conditions this time around, such that she did not present a significant risk of failing to answer bail.

65 The application for bail is opposed on the basis that the applicant has not established the existence of a compelling reason that justifies the grant of bail, and poses an unacceptable risk of committing an offence whilst on bail and failing to surrender into custody in accordance with conditions of bail.

Criminal history, bail compliance history and outstanding matters

66 The respondent acknowledges that the applicant has no prior convictions. However, it is noted that - during the period that the applicant has been on bail for the instant charges - she has been charged in two further matters (involving allegations of shop theft and possessing a drug of dependence), has failed to attend some court hearings, and has failed to fully comply with her bail reporting condition.

67 The respondent refers to the applicant's reliance on supports and services available to her through Flat Out if she is granted bail, and submits that this was a significant factor in the applicant being granted bail previously. The respondent notes that, since bail was granted in June 2023, Flat Out have been unable to maintain regular contact with the applicant and therefore have not been in a position to assist her in attending court.

68 The respondent concedes that the applicant's risk of committing offences of a similar nature to the current charges is low, given the applicant's limited access to her children. However, the respondent again notes that the applicant has been charged with further offences while on bail. In addition, it is noted that she has been involved in the following uncharged matters, which are relied on to submit that she poses an unacceptable risk of committing an offence while on bail:

(a) on 11 December 2022, the applicant and her former partner were out the front of a hotel when another male made a comment or a gesture towards the applicant, and the applicant's former partner started chasing the male down the street. He caught up with the male and assaulted him with a box cutter, causing a laceration to the male's upper arm and armpit;

(b) on 1 May 2023, the applicant was cautioned in relation to a number of sanitary and grocery items she attempted to take from a supermarket. When confronted by police, the applicant said she had no money and was very sorry;

(c) on 26 July 2023, the applicant was issued a cannabis caution;

(d) on 23 October 2023, police located a stolen car and reportedly found evidence in it connected to the applicant and her former partner. The applicant's former partner was arrested and charged in relation to the incident, and the applicant was spoken to about the incident on 15 December 2023 but not charged at that time; and

(e) on 10 December 2023, the applicant was reportedly lured to an address where she was assaulted (thrown down stairs and had hair pulled from her head) and held for ransom in relation to a drug debt. She managed to escape and speak to police, but refused to provide a statement.

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

69 The respondent submits that the applicant has consistently failed to appear at court hearings when required, which has led to previous hearings being unable to proceed. In addition, between July and December 2023, the applicant failed to comply with her reporting condition on 14 occasions. The respondent contends there is a risk that the applicant will fail to appear at future hearings, which may potentially cause further delays.

70 As the applicant is accused of committing a Schedule 2 offence, the 'compelling reason' test applies to this application in accordance with sections 4AA(3), 4C and Schedule 2 of the Act. As above, the application of this test was not in dispute between the parties.

71 In determining whether a compelling reason exists, the court must take into account the relevant surrounding circumstances, including, but not limited to, those set out in section 3AAA(1) of the Act.[16]

72 As above, the Act does not define what is meant by 'compelling reason', however, I will apply the reasoning set out in Rodgers v The Queen,[17] as discussed above. In summary, a compelling reason is one which is forceful and therefore convincing - a reason which is "difficult to resist".

73 As she is entitled to do, the applicant has outlined a number of factors which are put forward, in combination, to establish a compelling reason why she should receive a grant of bail.

74 As to the strength of the prosecution case, it appears there is cogent evidence, particularly in terms of photos and videos, that are capable of implicating the applicant in a number of the alleged events. However, I also take into account that the applicant intends to raise the defence of duress, and that her counsel may seek to exclude the applicant's record of interview (which contains various admissions). In these circumstances it is difficult, and not the task of this court at this time, to form firm conclusions about the strength of the prosecution case or the defence of duress. At this stage, it is appropriate for me to say in overall terms that I do not consider the prosecution case to be a weak one. On the contrary, it may be considered reasonably strong, whilst duly noting that the applicant submits there are 'triable issues'.

75 I also note the difficulties in establishing when the matter is likely to get to trial, given the parties are awaiting the judgment of the High Court in the matter of Rohan. This could be a number of months, and the applicant's trial is not currently listed for hearing. This is, of course, no fault of the applicant. Noting that the applicant was first arrested in October 2021, there has already been some significant delay. At the same time, it must be said that some of that delay is attributable to the applicant causing disruption to the court process.

76 In balancing this delay, it must be said that the allegations are very serious indeed. They involve some highly concerning and disturbing features, with the offending being perpetrated against a baby, as well as young children. The co‑accused in this matter has received a significant sentence of imprisonment, and it seems likely that, if convicted, the applicant will also receive a significant custodial penalty outweighing any period on remand.

77 The applicant has no previous criminal history, although it is to be noted that there have been further charges laid against her in relation to offending of a nature dissimilar to the allegations before this court.

78 I accept Dr Scott's opinion that the applicant is a vulnerable individual in the custodial environment. In contrast, if she receives a grant of bail, there is significant care and support available from various services and individuals, particularly Ms Elmore from Flat Out. Such support includes the proposal that the applicant will return to live with her mother. Whilst the prosecution has submitted these supports are not particularly extensive, and the mother has her own challenges to cope with, in my opinion both the applicant's mother and Ms Elmore demonstrated an acceptable level of commitment and willingness to assist the applicant. Whilst there may not be regular in‑person contact if the applicant is bailed to the proposed Morwell address, Ms Elmore proposes arranging a linkage with ACSO and the applicant's mother. Ms Elmore appears to be aware of the applicant's situation and complex needs. It seems that the applicant is likely to need constant reminders and transport assistance in relation to her court and reporting obligations, which can be done via telephone.

79 It also cannot be ignored that the applicant has had a number of opportunities in relation to her bail status. She was originally bailed with conditions on 22 October 2021 and, after failing to appear at the directions hearing on 27 April 2023, a warrant was issued for her arrest. She was released again on bail in July 2023, with reporting conditions, which she failed to comply with, resulting in bail being revoked again in December 2023. The applicant is therefore now in a similar position for a third time.

80 The above should be assessed in the context of the applicant's intellectual disability and her relationship challenges. I note and accept the report of Dr Scott in this regard. Evidently, the applicant has difficulties with her short‑term memory, planning and organisation, most likely a function of her mild intellectual disability. This appears to make organising and attending appointments, including court hearings, more challenging. Her intellectual disability also makes the applicant vulnerable in custody, as set out in Dr Scott's report.

81 With the above observed, the applicant had supports around her when last granted bail, and it is unacceptable that she has failed on a number of occasions to attend court, report to police, or stay connected with those support services. Whilst the influence and control of her ex‑partner may go some way in explaining these failures, the prosecution properly emphasised that the applicant's ex‑partner was already in custody from 27 October 2023 onwards. It appears that the applicant has difficulties attending important appointments even at the best of times.

82 This application has, therefore, been finely balanced with respect to the satisfaction of the compelling reason test. It is with a number of reservations that I am willing to conclude that the applicant has demonstrated a compelling reason. The court is comforted somewhat by the availability of a stable address at the family home in Morwell. I do hold some concerns surrounding the proposed living arrangements, particularly the fact that the applicant's mother is seriously ill and the family is under a level of financial strain. Nevertheless, given the combined issues of delay, the applicant's vulnerability due to her intellectual disability, possible defence to the allegations and available supports, I have reached the conclusion that the compelling reason test is satisfied.

83 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.

Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?

84 The conclusion that the compelling reason test is satisfied is not the end of the matter. The court must now address the issue of whether the respondent can establish the applicant is an unacceptable risk for any of the reasons set out in the Act.[18] Bail must be refused if the court is satisfied by the respondent that there is a risk the applicant would engage in any of the conduct outlined in section 4E(1)(a), and that such a risk is an unacceptable one.[19]

85 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.[20]

86 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. In this respect, whilst it may be said that a grant of bail always involves an element of risk, I am of the opinion that there is no realistic possibility that she will depart the country. Further, given her recent history, I do not consider she poses a realistic risk of deliberate disappearance in the long term. Rather, she represents a risk of failing to appear at set court dates through a combination of neglect, and a dilatory and uncooperative attitude. This is particularly so given she failed to appear at court hearings on 1 March 2023, 27 April 2023, 9 May 2023 and 15 December 2023; failed to report to the police whilst on bail on three dates in 2022, and on 14 dates between 26 July 2023 and 13 December 2023; and allegedly committed further offending, including stealing clothing from a shop on 11 August 2023.

87 Viewed together, this all paints a sorry picture of the applicant's attitude, which has wasted the time and resources of many people and the court system. Whilst it might be accepted that she demonstrates a significant disregard for orders of the courts, at the same time her recalcitrant attitude should be tempered against the wider context of her disabilities, and the destructive influences of her then partners.

88 In assessing risk, the evidence placed before the court satisfies me that the applicant has the benefit of a series of supports in the community, as discussed above, which are capable of providing structure around her daily activities. These supports, if conscientiously put in place, should ensure that the applicant attends her court obligations. Furthermore, this conclusion appears to be supported by Dr Scott's opinion that structure and support will materially assist the applicant's situation. I have particularly noted the undertaking given by the applicant's mother that she would inform police if there are breaches of bail conditions, and I specifically indicate the court accepts that undertaking and takes it seriously.

89 Further, given the type of offending that forms the most serious allegations, it would appear to me that it is unlikely she will again find herself in similar circumstances to those which applied at the time the alleged offences occurred. The supports she has should reduce the risk that similar circumstances will arise.

90 As above, 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.

91 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.

92 The applicant has clearly and repeatedly ignored her obligations to court orders, but as I have explained, in my opinion these shortcomings can be managed. Accordingly, I am not satisfied the respondent has convinced me that the risk attaching to the applicant is unacceptable in all the circumstances. I will therefore grant the applicant's application for bail with the following conditions to be imposed:

(a) the applicant attend the County Court on 19 February 2024 and then surrender herself, and 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) that the applicant reside at the Morwell address;

(c) that the applicant remain at the above address from 10:00pm to 6:00am unless in the company of her mother;

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

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

(f) that the applicant reports to Ms Yasmin Elmore of Flat Out within 24 hours of being released on bail and attend any further appointments with Ms Elmore as scheduled;

(g) that the applicant provide her phone number to the informant or their nominee within 24 hours of being released on bail;

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

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

(j) that the applicant will reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on 22 February 2024, and any other further dates that the court appoints during the course of this order.

1. [1] Contrary to s 50C(1) of the Crimes Act 1958 (Vic).

[2] Contrary to s 51C(1) of the Crimes Act 1958 (Vic).

[3] Contrary to s 46 of the Crimes Act 1958 (Vic).

[4] DPP v Talbot (a pseudonym) [2023] VCC 599 (Judge Gaynor). The sentence is currently subject to an appeal by the Director of Public Prosecutions, with an appeal hearing date yet to be fixed.

[5] [2022] VSCA 215 (Emerton P, Kyrou and T Forrest JJA).

[10] [2018] VSC 361 (Beach JA).

[11] [2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA) (citations omitted).

[14] Family violence includes behaviour by a person towards a family member of that person if that behaviour is physically or sexually abusive. See the Act, s 3; Family Violence Protection Act 2008 s 5(1)(a)(i).

[17] [2019] VSCA 214 (Beach, Kaye and Ashley JJA).