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[2022] VSC 798
General information, not legal advice.
Supreme Court of Victoria
2022-12-20
KAYE JA
Original judgment source is linked above.
CRIMINAL LAW - Bail application - Applicant charged with reckless conduct endangering life, recklessly causing injury, contravening Family Violence Intervention Order, stalking, making threat to kill, and committing indictable offence while on bail - Whether exceptional circumstances exist - Whether unacceptable risk - Applicant's disadvantaged and dysfunctional upbringing - Availability of suitable programs while on bail - Delay - Difficult circumstances in custody during COVID-19 pandemic - Applicant of Aboriginal heritage- Bail granted with conditions - Bail Act 1977 ss 3A, 3AAA, 4A, 4AA, 4E, 5AAAA.
1 On 28 November 2022, the applicant was arrested and charged with a number of offences including: stalking; making a threat to kill; persistent contravention of an intervention order; committing an indictable offence while on bail; contravening a Family Violence Intervention Order (five charges); assault; and using a carriage service to harass. Subsequently, on 8 December a further twelve charges were added to the charge-sheet. They included: reckless conduct endangering life; recklessly causing injury; persistent contravention of a Family Violence Intervention Order (two charges); contravening a Family Violence Intervention Order (seven charges); and assault.
2 Following his arrest, the applicant, on 29 November, made an unsuccessful application for bail to the Latrobe Valley Magistrates' Court. He now applies to this Court for bail.
3 Most of the charges allege offending by the applicant against DS, with whom he was in a relationship for approximately six months, until it terminated on 17 September 2022.
4 In the early hours of 17 September, the applicant and DS had become involved in an argument while walking in the Traralgon area. It is alleged that, when DS tried to walk away, the applicant became angry, and did not permit her to leave. He threatened to assault her. When DS again attempted to walk away, the applicant grabbed her by the throat in an attempt to seize the collar of her jumper. DS then telephoned her sister, and the next morning they went to Traralgon Police Station where the incident was reported.
5 On the following day, 18 September, the applicant attended at the Coles store at Traralgon's Centre Plaza, where, it is alleged, he stole a six-pack of eggs and some other food. While he was walking along the Princes Highway he was stopped by police and told he was under arrest. He resisted police, and pushed an ice cream into the face of one of the officers. When he was wrestled to the ground by police, he scratched the police member's face around the eye. The applicant was arrested, and charged by Leading Senior Constable Flanagan with two charges of assaulting DS, theft from Coles, assault police, and resist police (two charges). He was released on bail from the Traralgon Police Station at approximately 1:20 pm.
6 Later on the same day, the applicant was again apprehended by police and charged with contravening a conduct condition of the bail on which he had been released, namely, by attempting to call DS twelve times on a pay telephone. He was also charged with using a carriage service to harass DS (contrary to s 474.17(1) of the Commonwealth Criminal Code) and with the theft of a carton of eggs from Coles Traralgon.
7 After his arrest, the applicant was conveyed to Traralgon Police Station. When he was interviewed, he made admissions to threatening to assault DS, and to assaulting her by grabbing her by the throat. He also admitted to the theft charges, and to assaulting and resisting police.
8 The applicant was remanded in custody, but was released on bail on the following day (19 September) by the order of the Latrobe Magistrates' Court. On the same day, the court made an interim Family Violence Intervention Order ('the intervention order').
9 As mentioned, the applicant was again arrested on 28 November and charged with further offences. The informant in respect of those charges is Leading Senior Constable Greg Dutton.
10 On the previous day, 27 November, the applicant, together with DS's brother and other persons, attended at the motel in Cowes at which DS was then residing. DS told them to leave, but some of the applicant's friends forced their way into her motel room, and then punched the bathroom door in which DS was hiding. It is not alleged that the applicant himself was involved in any of that conduct. On the following morning, 28 November, DS's sister attended the motel and found the applicant staying in the room with DS, in contravention of the interim intervention order that had been made on 19 September. The circumstances in which the applicant attended the motel in Cowes, are the subject of charges 4, 5 and 9.
11 After DS's sister had notified the police, the informant, Leading Senior Constable Dutton, attended and obtained a statement from DS, in which she described some other offending, that is the subject of the charges laid by Senior Constable Dutton on that date.
12 Charge 1 alleges that the applicant between 20 September and 27 November, stalked DS by telephoning her 235 times, which included multiple messages and telephone calls to her containing threats towards her family. Charge 2 alleges that in early October, the applicant made a threat to kill DS's family and to hurt her mother.
13 By charge 6 it is alleged that, in late October, in contravention of the intervention order, the applicant telephoned DS and shouted at her. He then promised he would not assault her and she agreed to meet him on the beach at Cowes, which she did in the company of her elder sister TS.
14 By charge 7, it is alleged that in September 2022, the applicant sent a message to DS telling her she could not see anyone else but him, and that he would find her. By charge 8, it is alleged that, in September, the applicant sent a message to DS saying that he knew she could not find anyone else, and, if she did, she would get hurt for it.
15 Charge 10 alleges that the applicant assaulted DS on dates between 1 December 2021 and 28 February 2022. Charge 12 alleges that between December 2021 and February 2022, the applicant unlawfully and recklessly engaged in conduct which might have placed DS' life in danger. In respect of those two charges, it is alleged that in late 2021 or early 2022, the applicant, while at DS's house in Morwell, choked DS until she lost vision and 'saw stars'. DS told police that that conduct had occurred on three or four occasions previously.
16 Charge 13 alleges that the applicant on 6 September, recklessly caused injury to DS. On that date, DS was staying with her sister in Traralgon. The applicant attended the house and an argument then occurred between him and DS. It is alleged that, in the course of that argument, the applicant punched DS on the nose.
17 By charges 15 to 22, it is alleged that, on various dates between 21 September and 27 November, the applicant telephoned DS on multiple occasions, in contravention of the intervention order.
18 By charge 23, the applicant is charged with the offence of common law assault. On 16 September 2022, DS went to stay with a friend in Morwell. The applicant attended the house and DS and he then went to an oval nearby, where they had an argument. When DS tried to walk away, it is alleged that the applicant tripped her up by grabbing her shoulder and pushing her legs from underneath her, before punching her in the stomach.
19 On 6 December 2022, the Latrobe Valley Magistrates' Court made a final Family Violence Intervention Order in respect of which the affected family member is DS. The order (inter alia) prohibits the applicant from having any contact with DS, with the exception that he may attend her home in order to collect his personal property, provided that he is then in the company of a police officer.
20 Each of the charges, in respect of which Senior Constable Flanagan and Leading Senior Constable Dutton are respectively the informants, are listed for mention before the Latrobe Valley Magistrates' Court on 10 January 2023. It is anticipated that they will not be listed for a contest mention hearing until at least April 2023. If the matters are not resolved at that point, then it is expected that there will be a further delay of between six and twelve months before a contested hearing can be held in respect of the charges.
21 The applicant has come before the courts on four previous occasions.
22 On 4 October 2016, the applicant was before the Latrobe Valley Children's Court on charges of theft, attempting to commit an indictable offence, committing an indictable offence while on bail, theft from a shop and resisting a police officer. The charges were adjourned for twelve months without conviction upon the applicant entering into a good behaviour bond. Subsequently, on 3 October 2017, the charges were dismissed.
23 On 22 March 2017, the applicant was again before the Latrobe Valley Children's Court on charges of theft from a shop, affray, assault in company and causing damage to jail property. Those charges were adjourned without conviction for a period of six months, again upon the applicant entering a good behaviour bond. Subsequently, on 21 September 2017, the charges were dismissed.
24 On 26 August 2017, the applicant was before the Latrobe Valley Magistrates' Court on one charge of failing to answer bail. He was sentenced, without conviction, to a fine of $500.
25 On 16 December 2020, the applicant was before the Latrobe Valley Magistrates' Court on one charge of being drunk and disorderly in a public place, and one charge of contravening a Family Violence Intervention Order. Those charges were dismissed under s 76 of the Sentencing Act. On the same date, the applicant was before the court on charges of unlawful assault, wilfully damaging property, and entering a private place without authority or excuse. The charges were adjourned without conviction for six months on an adjourned undertaking, and the applicant was ordered to pay a $200 donation to the Salvation Army.
26 The applicant was born in April 2000. He is a 22-year-old Aboriginal man of Bidhawal ancestry on his mother's side and Italian ancestry on his father's side. He has an older brother, and two older sisters.
27 When the applicant was one year of age, his mother passed away from a drug overdose. He remained in his father's care, but the home environment was unstable and volatile as his father was an alcoholic. From an early age the applicant was subjected to verbal and emotional abuse. As a result, the Department of Health and Human Services intervened, and the applicant was placed in foster home care. During the following ten years, the applicant estimates that he was placed in 50 or 60 different foster homes for short periods. His longest placement was for four months when he was at the age of twelve years. The applicant has reported being subjected to physical and emotional abuse when in the care of two of the foster families.
28 The applicant was permanently removed from the care of his father at the age of twelve years, after his father strangled him. He was then placed in the custody of his maternal cousin, with whom he remained until the age of seventeen years. He then left her home because he wished to be independent.
29 In the meantime, the applicant had attended school in Traralgon, completing Year 11 level, and then completing a Certificate III in civil construction. However, subsequently, he has had difficulties obtaining stable employment, although he has gained casual employment picking fruit and mowing lawns.
30 Since leaving the home of his maternal cousin, the applicant has experienced extended periods of homelessness. Since the age of 17 years, intermittently he couch surfed staying with friends. When he was 19 years of age, he secured a private rental residence. However, he was evicted some six months later when his cousin set fire to the home while he was trapped inside it. Since then, he has experienced nightmares and flashbacks relating to that incident. Subsequently, at the age of 21 years, the applicant was awarded Department of Housing accommodation, but he was evicted from it six months later when his partner's brother damaged it. As a result, he again became homeless, living on the streets and couch surfing. Immediately before his remand in custody in November 2022, the applicant had managed to secure private rental accommodation in Morwell, and he would be able to return to that address if he were released on bail.
31 The applicant has resorted to substance abuse since the age of thirteen years, when he commenced using cannabis. He has intermittently used methamphetamine from the age of sixteen years. Since then, on occasions, he has engaged, for short periods, in daily use of high doses of the substance. In addition, the applicant has reported nearly daily consumption of alcohol from the age of seventeen years. He has engaged previously with Alcohol and Other Drug (AOD) interventions, but they have only been for limited periods.
32 The applicant was initially assessed by the Court Integrated Services Program (CISP) while held on remand at the Morwell Police Station on 19 September. He was bailed on the same date, on the condition that he comply with all requirements of CISP. The report of the CISP case manager, Mr Ashton Brand, states that, since his release, the applicant had contact with Mr Brand on the telephone and by text messages. Mr Brand first met with the applicant on 25 October. On that occasion, the applicant engaged positively, politely and respectfully. The applicant told Mr Brand that he felt he could manage his own needs independently in the community, having secured a job interview in the abattoirs in the following week. Accordingly, Mr Brand recommended that CISP be removed from the then bail conditions.
33 Following the applicant's remand in custody on 29 November, he was further assessed by the CISP program on 12 December. Ms Joanne James, the team leader of Court Support Services Gippsland, reported that the applicant would be suitable to undergo a program with CISP. In particular, in her report, Ms James made the following recommendations:
34 Ms James gave evidence on the hearing of the bail application. She said that if the applicant is released on bail, he would, on the following day, attend three appointments arranged by CISP. The first appointment would be with Ms James. The second appointment would be with Dr O'Donoghue in Bunyip, in which the doctor would conduct a mental health review and assess the pharmacotherapy which would be necessary to assist him to abstain from alcohol and drug abuse. Dr O'Donoghue specialises in treating patients with addictions. The third appointment would be with Mr Blaney of VACCA for the purposes of engaging the applicant in the Men's Perpetrator Program conducted by that organisation. During the period of the bail, Ms James would conduct an in-person meeting with the applicant each week. In addition, she would liaise with the other service providers, including Dr O'Donoghue and VACCA, to ensure that the applicant attended the appointments, and to confirm the applicant's presentation during those appointments.
35 Ms James also stated that she would refer the applicant to another organisation, Ramahyuck, which is a culturally sensitive program, that provides Indigenous people with assistance to attend their appointments. Ramahyuck does not currently conduct an alcohol and drug support service, but it is in the process of establishing such a program which is expected to commence early 2023. Until that program is established, Ms James intends to refer the applicant to a mainstream alcohol and drug support service.
36 Ms James also noted that when the applicant was referred to the CISP program in September, he considered that he did not require the assistance of CISP at that time. However, having spoken to the applicant recently, Ms James noted that the applicant is now willing to engage with the CISP program. Originally, the applicant thought that he could deal with his own issues within the community, but he now understands that he is not capable of doing so, and he appreciates that the support of CISP would be of benefit to him.
37 In cross-examination, Ms James acknowledged that, at present, there is a lack of any culturally specific alcohol and drug support referral available to CISP. She considered that, for the time being, it would be sufficient to refer the applicant to a mainstream service. In addition, Ms James herself has a significant background in treating persons who suffer drug and alcohol addictions, both in hospitals and in the community. Ms James expressed the view that, with proper engagement, treatment and supervision, the risk of the applicant offending against DS would be mitigated.
Report of Victorian Aboriginal Child Care Agency (VACCA)
38 Mr Andrew Blaney, the Senior Program Manager of Family Violence and Therapeutic Services of VACCA, has provided two reports, in which he has stated that VACCA would accept a referral of the applicant to the Men's Family Violence Behaviour Change Program conducted by VACCA. That program addresses issues that include the impacts of trauma on behaviour, communication skills, understanding anger, hierarchy of power, emotional range and response, and values, beliefs and expectations. The program has been conducted by VACCA for approximately eight years.
39 Mr Blaney has a long-standing history of working in the area of child protection and trauma counselling with Indigenous persons, both in Victorian and in the Northern Territory. He has a number of tertiary qualifications including in psychology, and he has certificates in social science, focussing on male family violence, and a Certificate IV in Aboriginal Family Violence Work.
40 Mr Blaney gave evidence on the hearing of the bail application. He explained that the Men's Family Violence Behaviour Change Program is conducted over an eight week period, consisting of a two hour session in the morning, and a two hour session in the afternoon, each day. The program focusses on aspects of inter-generational trauma, history, individual experiences, emotional regulation, understanding anger, and violence. A number of the group sessions are held on Country, where the men visit sacred sites and connect with their culture and heritage.
41 Mr Blaney has not yet met the applicant, but he has liaised with Ms James, and he has a scheduled an appointment with the applicant. If the applicant is granted bail, Ms James would convey the applicant to the first meeting with VACCA, and a thorough assessment would then be undertaken. Mr Blaney also explained that in addition to the Men's Family Violence Behaviour Program, VACCA also conducts a holistic healing program which addresses participants' experiences of trauma, racism and inter-generational trauma. The program is for a minimum of eight weeks. The participants must make a commitment for a minimum of eight weeks, but they are entitled to continue with the program after the expiration of that period. Mr Blaney confirmed that if the applicant should fail to attend an appointment with VACCA, Mr Blaney would contact the informant and Ms James of the CISP program, and he would advise them accordingly.
42 In cross-examination, Mr Blaney explained that the holistic healing course is also an eight week program which is conducted each Wednesday for two hours. Mr Blaney acknowledged that the applicant would be required to attend other appointments which might coincide with the sessions conducted by VACCA. He stated that where it was necessary for the applicant to miss a meeting with VACCA, in order to attend such an appointment, the staff at VACCA would be able to explain to the applicant the part of the program which he was unable to attend. Mr Blaney stated that if the applicant were to contact him and advise him that he could not attend a session conducted by VACCA, because he was required to attend another appointment, Mr Blaney would require the applicant to provide appropriate proof concerning that appointment.
43 On 9 December, Ms Sandra Cokorilo, a psychologist, conducted an assessment of the applicant via videoconference. Ms Cokorilo has provided a detailed report concerning her examination and assessment of the applicant's psychological condition.
44 In summary, Ms Cokorilo has noted that the applicant's emotional, cognitive and behavioural development has been adversely impacted by his disadvantaged and unstable childhood. That background placed him at high risk of early substance abuse and drug use, which the applicant resorted to by way of self-medication to deal with his emotional distress. Ms Cokorilo noted that at the time of the offending the applicant met the criteria for alcohol and stimulant use disorder. He also described symptoms consistent with a Major Depressive Disorder in the months preceding and during the offending. In addition, the applicant met the criteria for Post-Traumatic Stress Disorder, which is also characterised by symptoms of anxiety. That clinical profile would undermine the applicant's capacity to think clearly, to respond calmly, and to exercise appropriate judgment. The applicant also has a history and presentation that is suggestive of Attention Deficit Hyperactivity Disorder.
45 Ms Cokorilo expressed the view that, in view of the applicant's mental health issues, it is imperative that the applicant undergo psychological treatment in order to ensure his appropriate rehabilitation. She also considers that the applicant's mental health may be adversely affected by the custodial environment.
46 The charges against the applicant include offences specified in Schedule 2 of the Bail Act 1977, namely, stalking, making threats to kill, persistent contravention of an Intervention Order, and committing an indictable offence while on bail. At the time of those offences, the applicant was already on bail in respect of Schedule 2 offences. Accordingly, s 4AA(2)(c) and s 4A(1A) of the Bail Act provide that the application for bail must be refused, unless the applicant establishes the existence of exceptional circumstances that would justify the grant of bail.
47 In determining whether exceptional circumstances have been established, I am required to take into account the relevant circumstances, including, but not limited to, those specified by s 3AAA(1) of the Act. The meaning of the phrase 'exceptional circumstances' has been discussed in a number of previous decisions of this Court. In essence, in order to meet that requirement, the applicant must demonstrate the existence of circumstances which are such as to take the case out of the ordinary. In other words, the circumstances must be exceptional to the ordinary circumstances, which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances, which, individually, might not be sufficient to be considered exceptional.[1]
49 If the applicant establishes the requisite exceptional circumstances, s 4D and s 4E of the Act provide that the application for bail must be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released, would (inter alia) endanger the safety or welfare of any person, or commit an offence while on bail. The respondent bears the burden of demonstrating the existence of such an acceptable risk.[3] Section 4E(3) of the Act provides that in considering whether any such risk is unacceptable, the court must take into account the 'surrounding circumstances' which are specified in s 3AAA of the Act.
50 Section 5AAAA(2) of the Act provides that the court, in considering the release on bail of an accused person charged with a family violence offence, must consider whether, if the applicant were released on bail, there would be a risk that the applicant would commit family violence. In such a case, the court must consider whether the risk could be mitigated by the imposition of a condition or the making of a Family Violence Intervention Order.
51 As I have noted, the applicant is a man of Aboriginal heritage with Bidhawal ancestry on his mother's side. Section 3A and s 3AAA(1)(h) of the Act provide that in making a determination under the Act, the court must take into account any issues that arise due to a person's Aboriginality, including the person's background, and the person's ties to extended family or place.
52 In HA (a pseudonym) v The Queen,[4] the Court of Appeal explained the significance of those provisions in the following terms:
The fourth relevant factor was the appellant's Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person's Aboriginality, including the person's cultural background, and the person's ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[5]
53 Ms S Joosten, who appeared on behalf of the applicant, submitted that upon examination of the relevant surrounding circumstances, it should be concluded that the applicant has established the requisite exceptional circumstances to justify the grant of bail to the applicant. Ms Joosten also contended that, while there is a risk that the applicant, if released on bail, might reoffend, or might endanger the safety or welfare of the complainant DS, nevertheless, in all the circumstances, it should not be concluded that that risk is unacceptable.
54 Ms Joosten accepted that some offending, alleged against the applicant, is quite serious, and in particular, the offending that occurred on 6 September (which is the subject of charge 13 on the charge sheet by Leading Senior Constable Dutton) and the offending that is alleged on 17 September (which is charge 1 on the charge sheet by Senior Constable Flanagan). However, she submitted that otherwise the evidence, so far served by the prosecution in support of the other charges, is quite limited and does not support a number the charges. In particular, the statements provided by DS, in respect of the serious allegations of strangulation that are the subject of charges 10 and 12 laid by Leading Senior Constable Dutton, are expressed in general terms, and the statements do not provide sufficient detail of the surrounding context to establish the offences that are alleged.
55 Ms Joosten further contended that the applicant's previous criminal history is quite limited. In particular, none of the dispositions by the courts have involved the recording of a conviction against the applicant, and he has never been sentenced to serve a Community Corrections Order, or to a term of imprisonment. Ms Joosten also relied on the applicant's youth, the availability to him of stable accommodation, and the applicant's Aboriginality. In particular, Ms Joosten relied on the availability to the applicant of support through the CISP program and also the rehabilitation program that will be provided by VACCA. Further, based on the report of Ms Cokorilo, the applicant has relevant mental health issues which could be better addressed if he were released on bail.
56 Finally, it was submitted, that if the applicant is not released on bail, there would be a further delay of between six and 12 months before the contested charges are finally disposed of. Ms Joosten contended that that period of detention would exceed any sentence which would be likely to be imposed on the applicant should he be convicted of those charges.
57 In response, Inspector N Moran, who appeared on behalf of the respondent, acknowledged that, in view of the materials filed on behalf of the applicant, and the evidence of Ms James and Mr Blaney, the respondent did not oppose a finding of exceptional circumstances that would justify the grant of bail. Inspector Moran, however, submitted that if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence while on bail, and, in particular, that he would endanger the safety or welfare of the complainant DS. In that respect, Inspector Moran contended that the applicant's history demonstrates that he had a complete disregard of previous dispositions of the court by which he was granted bail. On 18 September, after being released from custody, he immediately reoffended, as a result of which he was again arrested. Following the applicant's release from custody on 19 September, he again reoffended. In addition, the offences, that are the subject of the charges brought by Leading Senior Constable Dutton, took place very shortly after the applicant was again released on bail on 19 September.
58 Inspector Moran further submitted that the proposed supervision of the applicant, by the CISP program and the VACCA program, would not be sufficient in order to provide adequate protection to DS against the applicant. In that respect, Inspector Moran noted that in the past the applicant has not seriously engaged with services that were available to him through the CISP program. Accordingly, he submitted, if the applicant were released on bail, there would be an unacceptable risk that he would reoffend, and, in particular, that he would endanger the safety of the complainant DS.
59 The first question is whether the applicant has established the requisite exceptional circumstances justifying his release on bail.
60 As I have noted, Inspector Moran, on behalf of the respondent, acknowledged that in view of the evidence that was adduced by the applicant, the respondent did not contend that I should conclude that the applicant has not established the existence of such exceptional circumstances. For the reasons that follow, the respondent was correct to make that concession.
61 The first relevant consideration is the applicant's youth, background and criminal record. The applicant has just turned 23 years of age. He has had a particularly unfortunate, disadvantaged and traumatic upbringing. His previous court appearances must necessarily be viewed in the context of the difficult circumstances which marked his formative years, none of which were of his own making.
62 In that context, it must be noted that although the applicant has come before the courts on four separate occasions, the circumstances of the applicant's previous offending were such that the court, on each of those occasions, did not record a conviction in respect of the offences for which the applicant was charged. The previous offences, and the circumstances in which they were committed, do raise some concerns about the applicant's conduct towards young women with whom he has been in a relationship. Nevertheless, in view of the applicant's deprived and tumultuous upbringing, it is a matter of some consequence that he has not sustained a criminal conviction for any of the offending in respect of which he has come before the courts.
63 It is also somewhat surprising, and commendable, that notwithstanding the disadvantaged nature of the applicant's upbringing, he has performed reasonably well in his formal education. His achievements in that regard are quite impressive. The programs, which are available to him, may enable him to better utilise his abilities in a constructive and positive manner.
64 The second relevant factor is that, probably for the first time, the applicant has a suite of appropriate programs available to him which are designed to assist him to adhere to the terms of any bail on which he is released, and also to commence his rehabilitation.
65 The respondent has pointed out that the applicant has previously had available to him the CISP program, which was a condition of the bail on which he was released on 19 September, and that the applicant did not properly avail himself of that program. There is some force in that point, particularly as the applicant committed further offences after his release on bail on 19 September.
66 Nevertheless, as Ms James explained, it is evident that when the applicant was assessed on 19 September for the CISP program, he was then recommended for a community referral, but CISP at that time did not consider that it was necessary for there to be any ongoing case management in respect of the applicant. As a consequence, the applicant only had limited involvement in the program, consisting principally of telephone and text contacts with CISP, during the ensuing month.
67 However, as Ms James explained in her evidence, since the applicant's arrest on 28 November, he has now come to the realisation that he does need the assistance and supervision of CISP to enable him to successfully comply with the conditions of bail. The involvement of CISP, in the manner described by Ms James in her evidence, would, in my view, be critical to the ability of the applicant to adhere appropriately to the terms of any order by which he would be released on bail..
68 In addition, if the applicant is granted bail, he would also be required to attend and participate in the programs conducted by VACCA, which were explained by Mr Blaney in his evidence. Since the landmark report of the Royal Commission into Aboriginal deaths in custody in 1991, the courts have gained an understanding that programs, such as those conducted by VACCA, which involve the reconnection of an Indigenous person with his or her culture, and which are conducted in an appropriately culturally sensitive manner, are of significant importance in addressing the underlying issues that often drive offending by people in the position of the applicant.
69 The evidence of Ms James and Mr Blaney satisfies me that the programs, which the applicant will be required to attend, together with the drug and alcohol treatments and counselling, that will be available to him, will play a significant role in addressing the underlying issues that have been the product of the applicant's unfortunate upbringing. In addition, it would appear that the applicant does have available to him appropriate accommodation which will assist in his rehabilitation.
70 The third relevant factor, in determining the existence of exceptional circumstances, is the potential delay in the ultimate disposition of some of the charges against the applicant.
71 As I have noted, the applicant has not served any previous term of imprisonment or detention. The circumstances of those held in custody in the present time are quite difficult due to the restrictions that have been necessitated by the current COVID-19 pandemic. Ms Cokorilo has advised that adequate treatment of the applicant's psychopathology is necessary to improve his emotional health and to reduce his need for self-medication, which itself has been a significant aspect of his offending. She has also expressed the opinion that the applicant, who suffers from significant post-traumatic stress, is at risk of a further deterioration in his condition in the absence of appropriate access to such treatment, which would be available to him within the community. Accordingly, she is concerned that any further imprisonment of the applicant would have a negative effect on his development and future behavioural outcomes.
72 It is not possible at this stage to predict, nor is it appropriate to express any view about, the possible sentence which might be imposed on the applicant if he is convicted of the charges he now faces. Nevertheless, in view of the potential delay, it is quite likely that, if the applicant is not granted bail, his period in custody on remand will exceed any sentence which might ultimately be imposed on him.
73 Finally, and importantly, the applicant is of Aboriginal heritage. As the Court of Appeal noted in HA, s 3A and s 3AAA(1)(h) of the Bail Act are a significant legislative recognition of the constructive role that cultural connection can play in rehabilitating offenders who are of Aboriginal heritage. In addition, it is important to be conscious of the need to avoid exacerbating the excessive and disproportionate incarceration rates of our Aboriginal and Torres Strait Island peoples, unless there is appropriate cause or necessity to do so. The applicant's Aboriginal heritage is of particular relevance in this case, because, through appropriate programs conducted by organisations such as VACCA, it can be used as a basis to reconnect the applicant with his culture, and to enable the applicant to understand and address the fundamental issues which have played a significant part in his offending.
74 Taken together, the factors which I have discussed do, in my view, constitute the requisite exceptional circumstances. The combination of those factors take the case out of the ordinary set of circumstances which might be relied on in an application for bail.
75 In reaching that conclusion, I am conscious that some of the offending alleged against the applicant is quite serious. In addition, the prosecution case in respect to some of the charges, is, on its face, quite strong. Nevertheless, as Ms Joosten correctly pointed out, the evidence supporting the most serious charges, namely those involving choking or strangling DS, and which are the subject of charges 10 and 12 of the charges laid by Leading Senior Constable Dutton, is quite limited. I also note that DS has deleted the text messages on her telephone, which are relied on by the prosecution to support some of the charges that allege contravention of the intervention order. In those circumstances, I am not persuaded that the nature and gravity of the charges against the applicant are such as to preclude a finding, in this case, of the requisite exceptional circumstances which would justify the grant of bail to the applicant.
76 The next question is whether the respondent has demonstrated that, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of any other person, and in particular DS, or commit an offence while on bail. It is that question which has given me some cause for concern.
77 It cannot be denied that if the applicant were released on bail, there would be some risk that he might re-offend, particularly by engaging in inappropriate conduct relating to DS. The offending, alleged to have been engaged in by the applicant, demonstrates a pattern of conduct in which the applicant, when communicating with DS, has allegedly lost control of his temper, and in a fit of anger has acted in a violent or aggressive and controlling manner. Some of the materials, relied on by the respondent, demonstrate that the applicant has previously engaged in the same kind of conduct in respect of other young women with whom he had been in a relationship.
78 In addition, it is a matter of some concern that after the applicant was released on bail on 18 September, he almost immediately committed further offences, including theft from a shop, and resist and assault police. After he was again released on 19 September, he again re-offended, by committing the offences which are the subject of charges 1, 4, 5, 6, 9 and 17 brought by Leading Senior Constable Dutton.
79 Each of those considerations are of some moment in determining whether, if the applicant were released on bail, there would be an unacceptable risk that he would offend, and particularly engage in aggressive or violent conduct towards DS.
80 On the other hand, it must be acknowledged that the offences, which the applicant committed while on bail, both after he was released on 18 September, and again after he was released on 19 September, did not of themselves involve the kind of violence or aggression which characterised some of the other offending in respect of which he has been charged. Charges 1, 6 and 17 concern communications by the applicant with DS which either constituted offences in themselves, or contraventions of the intervention order. The circumstances that occurred on 27 November, and which are the subject of charges 4, 5 and 9, did not involve the applicant himself acting in any violent, threatening or aggressive manner towards DS. Rather, the basis of those charges is that the applicant breached the intervention order by attending at the motel in Cowes at which DS was then residing.
81 Some of the conduct, that is alleged against the applicant, and which is the subject of the other charges, does give rise to some concern. It is that kind of conduct which, however, would be the subject of the interventions which will be provided both by CISP and by the programs conducted through VACCA.
82 If the applicant is released on bail, he would, almost immediately, be supervised by Ms James of CISP, and he would be required to attend specific programs which would address the underlying issues which have been productive of the conduct by the applicant which is the subject of the charges against him. I was impressed by the evidence given by Ms James and Mr Blaney. They each stated, in clear terms, that if the applicant fails to attend the programs to which he is directed, or fails to properly engage in them, they would immediately advise the informant and the Court.
83 In that way, a condition of the bail, requiring the applicant to attend at CISP and to participate in the VACCA programs as directed, would, to a material degree, address the particular risk which is central to the concerns of the respondent. It must be acknowledged that such a condition could not, of itself, entirely negate that risk. However, it would, in my view, be sufficient to reduce the risk to a level to which it would be acceptable.
84 In addition, if the applicant is granted bail, he would be subject to a condition that would forbid him from being present in Bairnsdale, and its suburbs, where DS is apparently residing. While such a condition is not a guarantee against the realisation of the risk that the applicant might offend in respect of DS, nevertheless, it would also materially mitigate the extent of that risk.
85 As I have noted, in determining whether the risk of the applicant re-offending, and, in particular, the risk of the applicant endangering the safety or wellbeing of DS, is unacceptable, it is necessary to take into account the surrounding circumstances which are prescribed by s 3AAA of the Bail Act. I have already discussed those circumstances in considering whether exceptional circumstances have been established. In particular, the applicant's personal circumstances, his background, his identity as an Aboriginal person, and the fact that, if bail were refused, he may well spend a period in custody on remand which would be longer than the likely sentence imposed on him, are all relevant circumstances in assessing whether the risk of the applicant re-offending against DS is unacceptable.
86 Taking those matters into account, and in particular taking into account the availability to the applicant of the CISP program and the VACCA programs, I have concluded that the respondent has not established that, if the applicant were released on bail subject to appropriate conditions, the risk of the applicant re-offending in that way would be unacceptable.
87 Accordingly, I have concluded that the applicant should be granted bail, on appropriate conditions, which would include the following:
(a) contact or communicate with DS by any means;
(b) approach or remain within 5 metres of DS;
[1] DPP v Muhaidat [2004] VSC 17 [13] (Kaye J); Re Brown [2019] VSC 751 [65]-[66] (Lasry J); Re Tong [2020] VSC 141 [18] (Tinney J); Re Pope [2022] VSC 735 [6] (Priest JA).
[2] Re Gloury-Hyde [2018] VSC 393 [30] (Priest JA).
[5] Ibid [58]-[59] (Maxwell P, Kaye JA); see also Re Hooper [2021] VSC 476 [52]-[53] (Tinney J).