Re Pollard [2023] VSC 106 (7 March 2023)

1 Kyle Pollard ('the applicant') seeks bail on two sets of charges. First, charges of contravene a supervision order (four charges) and use a drug of dependence ('the breach charges'). Secondly, charges of trafficking a drug of dependence; possess a drug of dependence; assault police (two charges); resist arrest (two charges); common law assault (two charges); intentionally cause injury; recklessly cause injury; commit an indictable offence while on bail (three charges); deal with property suspected of being proceeds of crime; and possess a controlled weapon ('the police charges').

2 Back on 16 September 2012 at around 3:30am, the applicant and a co-offender committed an unprovoked attack against an unknown, defenceless victim. The victim was struck, and then repeatedly kicked and stomped as he lay on the ground. The victim suffered serious injury, including a traumatic head injury. The applicant was convicted of recklessly causing serious injury ('the index offence'). On 31 October 2014, aged 24, he was sentenced to six years' imprisonment, with a non-parole period of four years. The sentencing judge was not satisfied that the applicant had kicked or stomped on the victim, and he was sentenced on the basis that he and his co-offender acted with a common purpose. The applicant was intoxicated by alcohol at the time of the index offence.

3 The applicant's time in prison was marred by a number of difficulties, although he did refrain from any physical violence while in custody. He was not granted parole. In October 2018, his sentence expired and he was released from custody onto an interim supervision order ('ISO') made by the County Court. On 5 December 2018, he was made subject to a final supervision order with a duration of four years.

4 In late 2018 and early 2019, the applicant breached his supervision order on at least nine occasions. In May 2019, the supervision order was reviewed and confirmed. An intensive treatment and supervision ('ITS') condition[1] was added with a duration of two years. Shortly after the ITS condition was added, the applicant was released from custody to the Rivergum Residential Treatment Centre ('Rivergum').

5 During 2021, the applicant received three short sentences of imprisonment in relation to supervision order breaches, using a drug of dependence, and property damage. The same year, the ITS condition was extended for a further 12 months.

6 On 15 February 2022, the applicant was convicted in the County Court of two charges of contravene supervision order and one charge of commit an indictable offence whilst on bail, and sentenced to two adjourned undertakings, both with a duration of one year.

7 On 29 March 2022, while at Rivergum, the applicant allegedly damaged a computer. He was subsequently charged with criminal damage and wilful damage, and bailed by police on his own undertaking ('the Knight matter').

8 In May 2022, the ITS condition was extended for a further two months to enable the applicant to undertake a graduated return to the community from Rivergum.

9 On 26 May 2022, the applicant had his first overnight stay at a unit in Bayswater, as part of his transition from Rivergum to the community. He returned to Rivergum the following day.

10 The applicant stayed overnight at the Bayswater unit from 30 May to 2 June 2022. He was then requested to provide a sample for urinalysis pursuant to the terms of his supervision order, which he did on 3 June 2022. On 7 June 2022, the applicant's urine sample was analysed and found to contain methylamphetamine.

11 On 6 June 2022, the applicant commenced what was intended to be a five-day stay at the Bayswater unit. That evening and the following afternoon, Benjamin Hearn ('Hearn') contacted the applicant via an encrypted messaging application, seeking to obtain 1,4-Butanediol. During these exchanges, Hearn allegedly asked the applicant the price of a 'ml', and the applicant replied 'not ml lt'. Hearn then asked the price of a litre.

12 On the afternoon of 7 June 2022, the applicant and an associate, Aleisha Gursoy ('Gursoy'), attended a self-storage unit in Springvale in a silver Hyundai driven by Gursoy. CCTV captured the pair walking from the direction of a storage unit that had been rented by Gursoy, and, as they returned to the car, Gursoy attempted to conceal an item under her jacket.

13 At 4:00pm, police observed the applicant meet Hearn at the Bunnings carpark in Springvale, and hand Hearn a white plastic bag. Hearn then returned to his vehicle, driven by Melinda McGregor ('McGregor'). The applicant returned to his vehicle, driven by Gursoy. All parties left the carpark.

14 At 4:20pm, police intercepted the vehicle containing Hearn and McGregor. Hearn admitted that he had one litre of 'G' or 'GHB' in a plastic bag under his seat, which he said he obtained while he and McGregor were at the Bunnings carpark. Police searched the car and seized a white plastic bag containing a bottle of liquid alleged to be 1,4-Butanediol.

15 At 6:30pm, police attempted to intercept the silver Hyundai, which was being driven by Gursoy, by activating the lights and sirens of their unmarked vehicle. Gursoy failed to stop and allegedly accelerated at speed away from police.

16 At 6:50pm, a surveillance operative observed Gursoy park the silver Hyundai in a carpark in Bayswater. Gursoy and the applicant removed bags from the Hyundai and left on foot. Minutes later, another surveillance operative observed a red Holden arrive outside the carpark. Gursoy entered the passenger seat of the Holden, and the applicant began placing bags inside it.

17 At this point, police officers Douglas and Hayes pulled their unmarked police vehicle in front of the Holden. Both officers, who were not in uniform, approached the applicant. Douglas announced that they were police, directed the applicant to get on the ground, and grabbed his hands in an attempt to handcuff him. At this point, the applicant allegedly swung both of his arms at Douglas, striking him to the chest and shoulder area with glancing blows.

18 Hayes then grabbed the applicant in a headlock from behind and brought the applicant to the ground. The applicant allegedly attempted to push himself off the ground, kicked out at Hayes and Douglas, and grabbed at Douglas' tactical belt. In response, Douglas punched the applicant twice to the face, at which point the applicant put his hands behind his back and was arrested. During the applicant's arrest, the red Holden, with Gursoy in the front passenger seat, reversed rapidly and left the scene. The driver was not identified.

19 A number of items suspected to be proceeds of crime were found in the applicant's possession, including a drone, two security cameras and $315 in cash. Douglas also seized a mobile phone and a foldable knife from the applicant.

20 Following the arrest, the applicant suffered a split lip, sore jaw and neck, and stated he felt dazed. He was transported to Maroondah Hospital by ambulance. On 8 June, the applicant was released from hospital and transported to Dandenong Police Station, where he made a 'no comment' interview. He was charged with all offences for which he now seeks bail.

21 Also on 8 June, police executed search warrants at the applicant's unit in Bayswater, and Gursoy's self-storage unit in Springvale. Within the applicant's unit, police located and seized three mobile phones and an additional (fourth) SIM card. In the storage unit, police located a notebook said to contain the selling prices of drugs, but no drugs were located.

22 Douglas suffered a sore jaw. He sought no medical treatment. Hayes suffered soreness to his neck and ribs, and sought medical assistance on 9 June. An X-ray revealed no fractures. He was assessed by a doctor as having a strained neck and cartilage injuries to his ribs, which would take at least a week to resolve. Hayes is the alleged victim of the injury charges.

23 On 24 June 2022, the applicant telephoned his brother from gaol. The call was recorded by the prison system. In the course of that call, the applicant asked his brother to search for Hearn on Facebook. He wanted to know where Hearn was and said he (Hearn) was not telling the truth. The applicant told his brother that if Hearn wanted to lie and get him (the applicant) into trouble, he wanted to kill him. The applicant protested his innocence; he said Hearn needed to hand himself in to police and that he would end up killing the 'rat'.

24 On 3 August 2022, the applicant applied for bail in respect of the breach charges in the County Court. On 10 August 2022, bail was refused.

25 On 30 November 2022, following a contested committal, the applicant was committed to stand trial in the County Court in relation to the police charges. The same day, the County Court made an ISO with respect to the applicant, as the existing supervision order was due to expire on 17 December 2022.[2] Given the applicant's current remand status, the ISO will commence when he is released from custody. The ISO will then remain in force until determination of an extant application for a supervision order (but for no longer than four months, unless extended).

(a) 21 March 2023 in the County Court for 'review of supervision order';[3]

(b) 20 April 2023 in the County Court for directions hearing (police charges); and

(c) 16 May 2023 in the County Court for mention (breach charges).

27 The applicant has no outstanding matters, as the Knight matter has resolved. On 24 February 2023, the applicant pleaded guilty to a single charge of wilful damage at the Ararat Magistrates' Court, and was convicted and discharged.

28 On 15 June 2022, Hearn was convicted of trafficking and possessing 1,4-Butanediol and committing an indictable offence whilst on bail, and sentenced to a community correction order.

29 McGregor has been charged with trafficking and possessing 1,4-Butanediol. She is on bail to appear before the Dandenong Magistrates' Court in May 2023.

30 Gursoy has been charged with trafficking and possessing 1,4-Butanediol, prohibited person possess imitation firearm (located at her property), negligently dealing with proceeds of crime, and fail to stop motor vehicle. She is on bail to appear before the Dandenong Magistrates' Court in June 2023.

31 The applicant is charged with Schedule 2 offences[4] under the Bail Act 1977 (Vic) ('the Act'), which are alleged to have been committed while he was serving a sentence for a Schedule 2 offence.[5] Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.[6]

32 I am required to take into account the guiding principles found in s 1B(1) when applying and interpreting the Act. When considering whether exceptional circumstances exist, I must also take into account all of the relevant surrounding circumstances, including, but not limited to, the matters set out in s 3AAA of the Act.[7]

33 If satisfied that exceptional circumstances exist that justify the grant of bail, bail must nonetheless be refused if the respondent satisfies the court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is unacceptable.[8] When considering whether a risk is unacceptable, the Court must consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable. I must again take into account the relevant surrounding circumstances, including, but not limited to, the matters set out in s 3AAA of the Act.[9]

34 The applicant is a 33-year-old man with a history of drug dependence and limited family support.

35 The applicant's criminal history commenced in the Children's Court in 2005, when he was 15 years old. He was dealt with for a range of offending, including violence, dishonesty, drug possession, property damage, bail and driving-related matters. In 2010 and 2011, he received terms of imprisonment for offences including recklessly cause serious injury, intentionally cause injury and affray. On 16 September 2012, he was remanded on the index offence, and since then he has largely remained either in custody, undergoing treatment at Rivergum or otherwise subject to a supervision order.

36 Since the commencement of the supervision order in December 2018, the applicant has been sentenced in relation to 13 breaches of that order, and various other offences, including using a drug of dependence, possessing a controlled weapon, theft, wilful damage, and committing indictable offences whilst on bail. Some of this offending occurred while the applicant was residing at Rivergum.

37 The applicant's criminal history does not record any violent offending since the index offending in 2012. There is a single charge of resisting police in 2018, however there are no charges of assault police.

38 The applicant relied principally on delay and the strength of the prosecution case to establish exceptional circumstances. Additionally, the applicant relied on the more onerous conditions experienced in custody as a result of COVID-19, and the availability of supports if released on bail, as additional factors that, in combination, constitute exceptional circumstances.

39 The applicant accepted the prosecution case on the trafficking charge is strong. However, the applicant submitted it is arguable that the prosecution case on the resist, assault and injury charges is 'foredoomed to fail', or at the least, faces real hurdles. There are significant discrepancies in the evidence of the police officers, and a jury would have difficulty finding them credible. In written submission, the applicant stated there is 'no basis' on which a jury could conclude that the applicant intentionally assaulted the officers, as opposed to accidentally contacting them in the course of seeking to regain his footing on wet ground.

40 The applicant conceded that the charges are serious in nature, but submitted that this was not an unprovoked violent assault, nor a standoff between the applicant and police. The actions of the applicant, however characterised, were in direct response to the arrest situation.

41 The applicant sought, unsuccessfully, to keep the police charges in the summary stream. The matter is now going to trial, and an overall delay of two years between charge and trial is likely. Even if found guilty, it is likely that his time on remand would exceed any ultimate sentence of imprisonment. Further, the length of the delay may put undue pressure on the applicant to plead guilty so as to avoid a lengthy remand period which would exceed his sentence.

42 The applicant submitted that conditions in custody continue to be more onerous due to the COVID-19 pandemic. Whilst restrictions have lifted, the applicant submitted the lockdowns are continuing in certain circumstances, and that he has been subject to multiple lockdowns.

43 Finally, the applicant submitted that the ISO will provide both stringent support and supervision of the applicant if he is released on bail.

44 The applicant relied on the same factors in support of the submission that the respondent has not established that he is an unacceptable risk of endangering the safety and welfare or any person, or committing a further offence while on bail. The applicant submitted that he was 'mouthing off' in the telephone call concerning Hearn, and if the police had assessed the threat as serious or genuine, the applicant would have been charged with making a threat to kill.

45 The applicant conceded there is a risk he will re-offend, but submitted the risk is tolerable. The applicant has not committed a violent offence since 2012, and any offending is likely to be low-level drug use or possession, or breach of supervision order conditions such as curfew or entering licensed premises. Further, given there will be an ISO in place, any offending will be rapidly detected and the applicant dealt with by the criminal law.

46 The respondent called the informant, Detective Balkwell, and Mr Coburn from the post-sentence branch, who both gave very brief evidence. There is no need to summarise their evidence for these purposes.

47 The respondent disputed that exceptional circumstances exist that justify the grant of bail. The respondent relied on the following matters:

• The prosecution case on the charge of trafficking is strong. With respect to the charges arising from the arrest, the respondent submitted there is direct evidence from both police officers, and it will be a matter for a jury to assess their credibility and determine the issues. There is evidence of injury from both Hayes and a doctor.

• The respondent confirmed that the prosecution opposed the summary jurisdiction application. The respondent submitted the alleged assaults of the police officers are 'serious'. The respondent conceded the alleged injury is 'relatively low level', but maintained the circumstances are serious, given the applicant was evading police and blows were inflicted to the upper body area of the officers.

• The respondent noted certain charges attract 'minimum term' provisions of the Sentencing Act 1991 (Vic). If the applicant is found guilty of contravening a restrictive condition of his supervision order, he faces a minimum term of 12 months' imprisonment.[10] If he is guilty of either intentionally or recklessly causing injury to an emergency worker on duty, he must be sentenced to at least six months' imprisonment.[11] Despite this, the respondent conceded that there is a risk that the applicant's period on remand will exceed the length of any ultimate sentence imposed, were he to be found guilty of the offending.

• The applicant has an extensive criminal history, including several violent offences, most recently the index offence. He has breached his supervision order 13 times, and has offended while on bail. The ISO affords no protection and will not meaningfully reduce the risk of the applicant offending while on bail.

48 In written submissions, the respondent stated that the prosecution has 'already indicated that it does not see utility in a case conference being held before trial'. That position was confirmed in oral argument. The respondent conceded that delay and the more onerous conditions in custody weigh in favour of a grant of bail.

49 The respondent submitted that the applicant is an unacceptable risk of endangering the safety and welfare of 'the community', specifically the co-offender Hearn. The applicant's threat to kill Hearn was grave and repeated several times. The respondent argued that whether or not the conduct was charged is not relevant to the Court's assessment of the risk posed, and the Court can be satisfied the threats were made.

50 The respondent submitted there is also a 'high likelihood' that the applicant will offend on bail and the offending will be 'serious'. The respondent pointed to the applicant's lamentable compliance with both bail and his supervision order, and his escalating offending while subject to supervision, which now includes drug trafficking and violence.

51 The phrase 'exceptional circumstances' has been understood as requiring circumstances that take the case out of the normal. It has been described as a 'high hurdle',[12] although in Re Whiteside[13] Warren J cautioned against setting too high a hurdle for the applicant when determining exceptional circumstances. The test creates a high bar but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, might not be considered exceptional.[14]

52 It is necessary to have regard to the strength of the prosecution case.[15] The applicant properly concedes that the prosecution case on the charge of trafficking is strong. In my view, on the resist, assault and injury charges, there are triable issues. There are some discrepancies in the evidence of Douglas and Hayes, and it will be a matter for a jury as to what evidence they accept and what inferences they draw. The prosecution case is not overwhelming but nor is it weak, at least not on the resist arrest and assault charges. It is weaker on the injury charges. Overall, the strength of the prosecution case is of little assistance to the applicant on the question of exceptional circumstances.

53 Delay is a significant consideration in this matter. I accept that a delay of approximately 18 months between committal and trial is realistic, meaning the applicant may spend approximately two years on remand. In different circumstances, two years might not be viewed as an unusual or lengthy delay. However here, it is properly seen as a lengthy delay given the following circumstances:

• Unlike many matters seen in this Court, the police charges were capable of summary resolution and the applicant sought to keep the charges in the summary stream. This was successfully opposed by the respondent, which is of course its right, but it has resulted in considerable delay. The respondent did not dispute that the sentencing maximums available in the Magistrates' Court would have been sufficient to deal with the applicant, had he been convicted of the police charges in that court.

• The prosecution have already stated that they see no utility in a case conference. If the prosecution maintain this position, the matter will go to trial. It has yet to receive a trial date. The breach charges are tied to the police charges, as they arise out of the same events, and thus will be subject to the same delay.

• In my view, even allowing for the various 'minimum terms' that may apply,[16] the applicant's time on remand will likely exceed any ultimate sentence of imprisonment, should the applicant be found guilty. As the courts have said, bail is not a form of preventative detention.[17] Its primary purpose is to ensure the attendance of the accused at court.[18]

• Contrary to the submissions of the respondent, in my view this is not a serious example of any of the matters the subject of the police charges. The trafficking consists of a single transaction, and the purchaser of the drugs received a community correction order. The resist arrest was of very short duration, and the applicant did not attempt to flee. I note the applicant was not driving the vehicle when it earlier evaded police. During the applicant's arrest, only one police officer was allegedly injured and on any view, that alleged injury was very minor.

54 I am prepared to accept that conditions in custody continue to be somewhat more onerous due to the restrictions caused by the COVID-19 pandemic, although based on the evidence of Mr Coburn, those restrictions have substantially eased. Mr Coburn was not asked about lockdowns and whether they are continuing.

55 If released on bail, the applicant will be subject to an ISO for four months. It is reasonable to anticipate a final supervision order will be pursued by the Secretary. The conditions of the ISO are onerous and include various special conditions subjecting the applicant to electronic monitoring, and drug and alcohol testing.

56 For a combination of reasons, principally delay, the circumstances surrounding that delay, the real prospect that the applicant's time on remand will exceed any ultimate sentence, and the fact the applicant will be subject to an ISO upon release, I am satisfied that exceptional circumstances have been established.

57 However, that is not the end of the matter. I turn to the question of unacceptable risk.

58 I will deal first with the alleged risk the applicant poses to the safety or welfare of Hearn.

59 In my view, the telephone call is relevant to an assessment of risk, irrespective of whether it is the subject of a charge. Since the call on 24 June 2022, there have been no further incidents or similar calls. There is no evidence that the applicant's brother ever attempted to locate Hearn. Hearn has been dealt with for the trafficking, and he is not a witness against the applicant. A contested committal has been held, and the applicant would understand now that the evidence against him does not rely on Hearn. In those circumstances, I am not satisfied that there is an unacceptable risk to Hearn if the applicant is granted bail on condition that he not contact or communicate with Hearn, or engage another person to contact or communicate with Hearn.

60 Here, the risk of the applicant reoffending on bail is real. This much was not really disputed. The key questions are whether the risk is unacceptable, and whether there are any conditions that may be imposed to mitigate the risk so that it is not an unacceptable risk.

61 Delay remains relevant at this stage of the bail process. As Kellam J stated in Mokbel v DPP (No 3),[19] the issue of detention by reason of unacceptable risk must be balanced with the likelihood of an accused being tried in the near future. An actual or anticipated delay may be of such a magnitude that risks which would, in other circumstances, be unacceptable, may properly be viewed as acceptable.[20]

62 The availability of the ISO as a means of mitigating risk is somewhat double-edged. On the one hand, the applicant's compliance with his previous supervision order was poor; he breached his supervision order 13 times and nearly always received short periods of imprisonment of between 14 days and an aggregate three months.[21] The Court can have little confidence that the applicant will not breach his interim supervision order. The applicant had been transitioning for less than two weeks before he engaged in drug trafficking and allegedly assaulted police while being arrested. It seems the applicant made no effort to comply with the terms of his supervision order or stay away from illicit drugs. The nature of the applicant's offending since the supervision order was first imposed seems to be escalating, and now includes allegations of drug trafficking and violence.

63 On the other hand, while the applicant rapidly re-offended once he reached the community, the offending was equally rapidly detected. In this way, the supervision order performed its intended primary purpose, which is to provide for the enhanced protection of the community by requiring certain offenders who have served custodial sentences to be subject to ongoing supervision. On this occasion, the applicant's offending was captured virtually in real time. He was under some form of surveillance from at least 10:38 a.m. on the morning of 7 June. The alleged offending said to breach the supervision order is of a more serious nature than previously but, as discussed above, is not the most serious example of the offences charged.

64 The conditions of the ISO are onerous. The core conditions include that the applicant must not commit a Schedule 3 offence, which includes all forms of assault pursuant to s 31 of the Crimes Act, intentionally or recklessly cause injury and common law assault. Any breach of a restrictive condition[22] exposes the applicant to a 12-month jail sentence absent a 'special reason'.

65 Further, the special conditions include conditions that prohibit the applicant from attending a 'pub, nightclub or bar'; prohibit him from consuming alcohol except with the written permission of the post-sentence authority; and prohibit him from possessing or using drugs. The applicant will be subject to electronic monitoring and a curfew, and must submit to urinalysis or other testing for detection of drug or alcohol use. He must not contravene the Control of Weapons Act 1990 (Vic). Pursuant to various provisions of the Serious Offenders Act 2018 (Vic), a police officer has considerable but not unfettered power to enter and search 'any part of the place or premises occupied by an offender' if they reasonably suspect that the entry and search are necessary to monitor the offender's compliance with an order, or they reasonably suspect the offender of behaviour or conduct associated with an increased risk of re-offending or contravening the conditions of an order.[23]

66 The question of what constitutes an unacceptable risk is not easily answered. As the Court of Appeal has observed, when considering whether an applicant for bail poses an unacceptable risk in the ways alleged, reasonable minds may well differ on the result.[24] Here, the risk must be assessed in circumstances where ongoing detention may well result in the applicant spending longer on remand than any ultimate sentence of imprisonment he will receive if convicted. After careful consideration, I have concluded that I am not satisfied that the applicant poses an unacceptable risk of committing further offences while on bail if released on strict conditions, and in circumstances where he will also be subject to an ISO with very strict conditions.

67 The applicant will be released on bail on his own undertaking and on the following special conditions:

1. The applicant is to attend the Melbourne County Court on 20 April 2023 at 9:00 a.m. and then surrender himself, 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 himself into custody.

2. The applicant is to attend the Melbourne County Court on 16 May 2023 at 9:00am and then surrender himself, 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 himself into custody.

3. The applicant must comply with all conditions of the interim supervision order made by his Honour Judge Fraatz of the County Court of Victoria and dated 30 November 2022, noting that the interim supervision order commences today immediately upon the applicant's release from custody.

4. The applicant is to reside at Unit 2/32 Scoresby Road, Bayswater in the State of Victoria ('place of residence') or where otherwise directed by the Post Sentence Authority in accordance with his interim supervision order.

5. The applicant is to present himself at the front door of his place of residence upon the reasonable request of a member of Victoria Police.

6. The applicant is to report to the Officer in Charge, or their nominee, at the Boronia Police Station every Monday, Wednesday and Friday between the hours of 6:00am and 8:00pm commencing Wednesday, 8 March 2023.

7. The applicant is to remain and be present at his place of residence between the hours of 10:00pm and 6:00am each day for the duration of the bail. For the avoidance of doubt, this curfew takes precedence over the curfew imposed under the interim supervision order, and the applicant must comply with this bail curfew.

8. The applicant is not to possess or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

9. The applicant is not to possess or use more than one mobile telephone.

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

b) provide the informant with any change of password or PIN of the mobile telephone within 24 hours of that change;

c) provide the mobile telephone for inspection upon the request of any member of Victoria Police; and

d) provide any password or PIN for the mobile telephone upon request of any member of Victoria Police.

11. The applicant is not to contact, communicate with or associate with, either directly or indirectly, including electronically, any witness for the prosecution other than the informant.

12. The applicant is not to contact, communicate with or associate with, either directly or indirectly, including electronically, the co-accused Benjamin Hearn, Melinda McGregor and Aleisha Gursoy a.k.a. Aleisha Kent.

13. The applicant is not to arrange for or request any other person to locate, contact or communicate with Benjamin Hearn.

14. The applicant is to surrender any passports or other travel documents to the informant within 24 hours of release and not apply for others.

15. The applicant is not to leave the State of Victoria.

16. The applicant is not to attend any points of international departure.

[1] Serious Offenders Act 2018 (Vic) s 32.

[2] The supervision order was made on 5 December 2018 but the four years did not commence until the applicant was released from custody.

[3] I note that the applicant is not currently subject to a final supervision order, only the ISO made on 30 November 2022, however that is how the matter is described in the applicant's material.

[4] Namely, one charge of trafficking in a drug of dependence and three charges of committing an indictable offence whilst on bail: see the Bail Act 1997 (Vic) sch 2 items 24(b) and 30. Additionally, an indictable offence that is alleged to have been committed while the accused is the subject of a supervision order is a sch 2 offence: see sch 2 item 28.

[5] Namely, an adjourned undertaking for committing an indictable offence whilst on bail, imposed at the County Court on 15 February 2022. It has been held that a person is 'serving a sentence' during the period of the adjourned undertaking for the purposes of the Act: Re Matemberere (2018) 57 VR 647.

[6] Bail Act 1997 (Vic) ss 4AA(2)(c)(v), 4A(1)-(2).

[10] Sentencing Act 1991 (Vic) s 10AB.

[11] Sentencing Act 1991 (Vic) s 10AA(4).

[12] See Re Barbaro [2004] VSC 404, [7], [17] and [21].

[13] [1999] VSC 413, [10].

[14] See, for example, Re CT [2018] VSC 559, [64]-[66] and the cases referred to therein.

[15] Bail Act 1997 (Vic) s 3AAA(1)(b).

[16] Pursuant to s 10AB(1) of the Sentencing Act 1991 (Vic), when sentencing an offender for an offence against s 169 of the Serious Offenders Act 2018 (Vic), the court must impose a sentence of not less than 12 months' imprisonment unless a 'special reason' exists. This subsection only applies if the court is satisfied beyond reasonable doubt that the offender intentionally or recklessly contravened a restrictive condition of the supervision order (s 10AB(2)). On charges of intentionally causing injury and recklessly causing injury, where the victim is an emergency worker on duty, the offences are a 'category 1 offence' pursuant to s 3 of the Sentencing Act 1991 (Vic), and pursuant to s 10AA(4) of that Act, the court must impose a minimum sentence of six months' imprisonment unless a 'special reason' exists.

[17] HA (a pseudonym) v The Queen [2021] VSCA 64, [63] (Maxwell P and Kaye JA).

[18] Woods v DPP [2014] VSC 1, [30] (Bell J).

[19] [2002] VSC 393; (2002) 133 A Crim R 141, 143 [13].

[20] DPP (Cth) v Barbaro [2009] VSCA 26; (2009) 20 VR 717, 728 [41].

[21] I note that on two occasions the applicant received an adjourned undertaking for breaches of his supervision order.

[22] Pursuant to the definition of 'restrictive condition' in s 3 of the Serious Offenders Act 2018 (Vic), certain core conditions are 'restrictive conditions'.

[23] Serious Offenders Act 2018 (Vic) s 229.

[24] Ali El Nasher v DPP [2020] VSCA 144, [51] (Priest, T Forrest and Weinberg JJA).