Re Thickens [2024] VSC 743 (29 November 2024)

1 Travis Thickens ('applicant') applies for bail on the following 18 charges arising from five separate incidents:

(a) Aggravated carjacking (two charges);

(b) Theft of motor vehicle (two charges);

(c) Prohibited person possess imitation firearm (two charges);

(d) Drive whilst disqualified (two charges);

(e) Drive vehicle with false number plates affixed;

(f) Theft (three charges);

(g) Kidnapping (common law);

(h) Kidnapping (statutory);

(i) False imprisonment;

(j) Blackmail;

(k) Unlawful assault with a weapon; and

(l) Armed robbery.

2 It is common ground that the charges of aggravated carjacking are Schedule 1 offences pursuant to the Bail Act 1977 (Vic) ('Act').[1] The onus is on the applicant to satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2]

3 It is convenient to deal with the alleged offending chronologically.

4 The complainant, AF, created a Facebook advertisement seeking to sell his 2012 Volkswagen Golf GTI ('Golf'). On 3 July 2024, the complainant received a Facebook message from a profile belonging to a person named 'Aga' asking to purchase the Golf for $14,500.00. The parties arranged for 'Aga' to view the Golf.

5 At approximately 8:15pm, a dark coloured BMW sedan attended at the complainant's address. The applicant exited the driver's side of the BMW. A co‑offender, Logan Mantel ('Mantel'), remained in the passenger seat. The applicant approached the complainant and asked to test drive the Golf. The complainant allowed him to enter the driver's seat. Mantel moved to the driver's seat of the BMW while the complainant was showing the applicant the Golf. The complainant then heard a sound which he described as a firearm being 'racked' or 'reloaded'.

6 Mantel exited the BMW and approached the complainant. He held a silver handgun in his hand, pointed it towards the complainant's head and demanded his car keys and mobile phone. The complainant complied with the demand. The applicant then approached the complainant and removed a torch from his pants. Mantel entered the driver's seat of the Golf and the applicant returned to the driver's seat of the BMW. Both cars fled the scene.

7 On 1 August 2024, the complainant selected the applicant's photograph from a photo board and said, 'This is 100 per cent him'. On 5 August, the complainant identified Mantel's photograph from a photo board and said, 'He was the one who pointed a gun at my head'.

8 The applicant was originally charged on summons with the Waldron matter on 10 October 2024. On 11 November 2024, he was remanded on the matter.

9 There are two co‑accused in this matter, Charles Gardiner ('Gardiner') and Maree Matic ('Matic'). The complainant, DF, was introduced to Gardiner approximately three years ago as Gardiner was seeking advice about Crypto currency. The complainant then began brokering 'Crypto' for Gardiner.

10 On the morning of 11 July 2024, the applicant and co‑accused attended the complainant's house. The applicant knocked on the front door and spoke with the complainant. He told him that he was from a towing company; the payments for his girlfriend's car were late; and the car would need to be towed. The complainant was confused and walked out into the driveway while talking to the applicant. The applicant produced a black firearm that looked like a revolver from under his clothing and pressed it to the complainant's stomach. He told the complainant to 'relax' and 'walk to the car'.

11 Gardiner then exited the vehicle and walked towards the applicant and complainant. Gardiner produced a firearm and said 'Hey mate, just relax, we're going to have a chat.' Both the applicant and Gardiner huddled close to the complainant, pointing their firearms at him and asking about the missing money. The complainant responded that he knew nothing about the money. The applicant and Gardiner then ushered him into the car. Gardiner and the complainant were in the back seat, the applicant was in the driver's seat and Matic was in the passenger seat.

12 While in the car, Matic was saying 'we should shoot him right now' and 'he is going to torture you' (pointing at Gardiner). Gardiner spoke about how the complainant owed him money. After a while, the applicant and Gardiner told the complainant to get out, grabbed his arm and walked him to the front door. They were both still holding their firearms. The applicant had his arm around the complainant's neck, preventing him from going anywhere.

13 Once inside, Gardiner and the complainant went to his bedroom, where they discussed the money Gardiner said he was owed. The complainant suggested that if they let him go, he could come up with the money in 24 hours. Throughout the discussion, Gardiner was sitting on the end of the bed with his firearm.

14 They all left the house, with the applicant holding the complainant's arm and escorting him out. He had the firearm pushed against the complainant's hip. Gardiner gave directions to an ATM in Chelsea where the complainant withdrew $1,000.00. Gardiner snatched the money from him when he returned to the car. They drove to a carpark in Chelsea where Gardiner demanded that the complainant make an online loan application. The complainant and Gardiner agreed on $15,000.00 total payment and the complainant got pre‑approval for $14,000.00. Gardiner then decided he wanted $19,000.00 as he wanted to pay $4,000.00 to the applicant. The complainant increased the loan amount and the loan was rejected.

15 They then began driving to Ringwood. Gardiner divided the $1,000.00 between himself, the applicant and Matic. Gardiner suggested that the complainant get the outstanding money from some friends. The complainant then contacted his friend, JC, who sent him $5,000.00. The money was sent to the applicant's PayID. JC began tracking the complainant via the 'find my friends' application and contacted Triple Zero. After receiving the money, the applicant said he did not want to drive all the way to Ringwood, so Gardiner booked a rideshare for the applicant, who was then collected from a nearby boulevard. The others continued driving, after which the car was intercepted by police and the co‑accused were arrested.

16 The complainant, PN, advertised his white BMW Hatch for sale on Facebook Marketplace. On 19 July 2024, the applicant contacted the complainant via Facebook requesting to inspect the vehicle that day. The applicant was driven to the complainant's house in Springvale by an unknown person in an Isuzu D‑Max. That person remained in the vehicle during the incident.

17 The applicant inspected the BMW and then requested to test drive it. He provided the complainant with a text image of a NSW driver's licence in the name of Cyril Gabriel. The image on the licence depicted the applicant. The licence was later found by investigators to be fraudulent.

18 The complainant accompanied the applicant on the test drive, sitting in the passenger seat. While travelling along a road in Springvale, the applicant produced a black handgun, pointed it at the complainant, cocked the slide on the firearm and demanded the vehicle key fob. The complainant thought the gun was a 'gel blaster' due to the sound it made (a 'gel blaster' is an imitation firearm which can be lawfully purchased online). The complainant gave the applicant the fob. The applicant then dropped the complainant several houses away from the complainant's address and continued driving past the unknown person. He honked as he drove past and the unknown person drove off, following the applicant.

19 Investigators obtained CCTV footage of the incident which depicts the applicant wearing black clothing, carrying a torch and speaking to the complainant outside the vehicle just prior to the incident. The applicant can be identified by a distinctive tattoo on the left side of his neck which is visible on the CCTV. The applicant can be seen driving the vehicle with the complainant in the passenger seat. Later, the vehicle can be seen driving past the address at a fast rate of speed with the Isuzu D‑Max following.

20 On 20 July 2024 investigators were notified that a white BMW Hatch was travelling on the Monash Freeway, Dandenong. The driver, alleged to be the applicant, cut another vehicle off and the driver of that vehicle sounded their horn. The applicant slowed next to the complainant's vehicle and pointed a black handgun towards the driver.

21 Investigators were able to establish that the applicant's phone was tracking in the same direction where the BMW was observed. The BMW had two different false registration plates attached to the front and rear. Police observed the BMW to turn off the freeway, and the police airwing then followed the vehicle. The BMW stopped at a service station, where an unknown female exited the vehicle and filled it with approximately $57.00 of petrol. The applicant and unknown female drove off without paying. Police airwing continued to track the vehicle to a nearby shopping centre. CCTV footage shows the applicant and the unknown female leaving the BMW and entering the shopping centre before leaving in a different vehicle. The stolen BMW was recovered. No firearm was located.

22 On the morning of 21 July 2024, the applicant contacted the complainant, KL, via Facebook Marketplace enquiring about a 2008 Black BMW which was advertised for sale. He used an account in the name of Pippaz Lucas. They made arrangements for the applicant to view the vehicle at an address in Noble Park.

23 At 10:30am, the applicant arrived at the address with an unknown female. The applicant provided the complainant with a fraudulent driver's licence in the name of Allie Maksour and requested to test drive the vehicle. The applicant drove away in the complainant's vehicle and did not return. He did not answer the complainant's calls or text messages.

24 At 2:30pm on 21 July 2024, the applicant was arrested at his home address for an unrelated matter. A search warrant was executed and the following items were found: a black imitation 'gel blaster' handgun; PN's BMW key; and KL's BMW key. The black BMW stolen from KL was located 250 metres from the address.

25 The applicant was interviewed in relation to the Whelan and Patounas matters. He answered 'no comment' to the majority of questions. He said he was at home on the morning of 21 July 2024. He said he had purchased the 'gel blaster' online but never used it. He said he used to sell drugs to DF, and the money transfer was for a debt owed in relation to a sale of drugs. He had never met DF and it was all done over the phone.

26 The applicant was charged with the Whelan and Patounas matters, and remanded into custody. At the time of the alleged offending, the applicant was on a drug alcohol and drug treatment order ('DATO').

27 The applicant was refused bail on the Whelan and Patounas matters on 15 October 2024 in the Melbourne Magistrates' Court.

28 The Patounas matter is listed for a contested committal with co‑accused Gardiner and Matic on 5 December 2024. The Whelan matter is listed for a contested committal on 6 February 2025. The Waldron matter is listed for a committal case conference on 20 December 2024.

29 Matic was granted bail on 3 October 2024. She has one minor prior conviction for a driving matter from 2017. Gardiner was also granted bail on 3 October 2024 and has no prior convictions. Mantel was on a community correction order at the time of the alleged offending and has not applied for bail.

Informant Brown matters (charged on summons 24 June 2024)

31 It is alleged that on 11 July 2023, the applicant, who was unlicensed, was observed by police to be driving a stolen vehicle with two passengers. The police activated their lights and sirens, and the applicant drove away at a fast rate of speed. He crossed a stop line without stopping and turned right against a red traffic arrow. Police airwing observed the vehicle stop in a driveway, at which point the applicant and his two passengers exited the vehicle and tried to flee. The applicant was located inside a residence. False number plates were found on the vehicle and the registration had expired. The applicant was arrested and released pending further inquiries. He was subsequently charged with dealing with property suspected of being proceeds of crime; driving a motor vehicle when directed to stop; driving whilst disqualified; proceeding through a red traffic light; fraudulently alter registration label; and use unregistered motor vehicle on highway.

32 The matter is next listed on 4 December 2024 for mention.

Informant Stephenson matters (charged on summons 7 November 2024)

33 It is alleged that on 14 July 2024 the applicant and three unknown co‑offenders arrived at an address in Bayswater in a white Commodore bearing false registration plates. The applicant and an unknown female approached the front door and spoke with the complainant, DG. DG's son, CG, had previously advised his father that some people might come to the home, and if this occurred he should call Triple Zero immediately.

34 The applicant and complainant spoke through a locked security door. The applicant told the complainant that CG had said he could 'come over and pick up some stuff'. The complainant told the applicant to wait while he fetched his phone to confirm this.

35 The applicant and the female gained access to the house by forcing open the rear sliding door and entering via the living room. The applicant told the complainant he did not want to harm him, he just wanted to collect some things. He grabbed hold of the complainant's clothing and made him walk upstairs to CG's bedroom. The applicant and the female searched the bedroom and left the house through the front door with various items belonging to CG. The complainant observed the offenders flee via the rear of his property after police arrived. The white Commodore was abandoned in the driveway.

36 Police arrested the applicant nearby. He was in possession of a false NSW driver's licence in the name of Cyril Gabriel and a small firework. He was charged with aggravated burglary, unlawful assault, theft, possess unauthorised explosives and possess false documents. The matter is next listed for mention at the Ringwood Magistrates' Court on 25 February 2025.

Informant Davidson (charged on summons 16 September 2024)

37 On 17 February 2024, the applicant was on remand at Ravenhall Correctional Centre. It is alleged the applicant accused the complainant, a fellow prisoner, of 'lagging him in' to his case manager. The applicant struck the complainant to the face, causing him to fall and black out for a short time. Soon afterwards, the applicant apologised for the assault. The complainant suffered a fractured jaw which required surgery. The applicant was charged with intentionally causing injury, recklessly causing injury and unlawful assault.

38 The matter is listed on 4 December 2024 for mention.

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

40 In considering whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances' including, but not limited to, those found in s 3AAA(1) of the Act.

41 If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the unacceptable risk test.[3] Bail must 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 an unacceptable risk.[4] In considering whether any relevant risk is unacceptable, the Court must again have regard to 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.[5]

42 The applicant is 24 years old. He has one sister, six half‑sisters and one half‑brother. At age three, his parents divorced and he moved to Queensland to live with his mother. There were ongoing custody disputes and around age eight or nine, his father and grandmother took over his care. The applicant was expelled from Grade One due to behavioural issues. At age 16 he was placed on a youth supervision order and agreed, as a condition of the order, to return to Queensland to live with his mother. He returned to Victoria in breach of the order, as he felt Victoria was his home and he needed to care for his father. The applicant was sentenced to detention in a Youth Justice Centre when he was 16 years old. He completed Year 10 at Parkville College. He has worked in various trades including plastering, concreting and construction. His longest period of sustained employment was 12 months.

43 When the applicant was aged 14, his premature baby sister died. The applicant was holding his sister when she died and his mother feels he has never addressed his misguided guilt around her death. Around this time, his father was abusing drugs and the applicant and his father were evicted from his grandmother's property. It was also around this time that the applicant commenced using cannabis. He did not like cannabis and moved to using methylamphetamine and his use grew rapidly. At the time of the charged offences he was abusing in excess of one gram of methylamphetamine a day.

44 When the applicant was aged approximately 19, he moved in with his then partner, stopped using drugs and was employed. The couple had one child, now aged four. The relationship broke down after the applicant's grandmother died in 2021 and he discovered his partner was unfaithful. He did not cope well with the relationship breakdown and relapsed into drug use. He reportedly attempted suicide on several occasions. The applicant is now in another relationship with Stephanie Hawkins. They have been together for two years, and the applicant has a three‑year‑old step‑daughter and a five‑month‑old son.

45 The applicant is supported by his mother, his siblings, his partner and his partner's family. His partner has offered to provide a $5,000.00 surety, and his mother will pay for residential drug rehabilitation.

46 The applicant has a lengthy criminal history dating back to May 2016 when he was aged 15. Between the ages of 15 and 17, he was dealt with in the Children's Court for numerous offences including theft, burglary, aggravated burglary, attempted armed robbery, possessing a controlled weapon, assault and resisting an emergency worker while on duty. He received a range of increasingly serious sentencing dispositions, including two overlapping 12‑month periods of detention in a Youth Justice Centre.

47 The applicant first appeared in the Magistrates' Court aged 21, and received an adjourned undertaking for offences including dangerous driving while pursued by police, possess methylamphetamine and drive whilst disqualified. In September 2022, he received a 12‑month community correction order for driving while suspended, dealing with proceeds of crime, possessing a controlled weapon and possessing drugs of dependence. He received a second 12‑month community correction order in June 2023 for similar offending, together with theft of a motor vehicle and committing an indictable offence whilst on bail.

48 On 21 February 2024, the applicant was dealt with for multiple offences including three charges of committing an indictable offence whilst on bail; driving while suspended; possessing and trafficking methylamphetamine; being a prohibited person in possession of a firearm; and numerous driving offences. He was placed on a 16‑month DATO to be served in the community. The order was varied on 4 July 2024 and the applicant received 7 days' imprisonment, after which he was released back on the DATO.

Psychological report of Dr Aaron Cunningham dated 30 October 2024

49 Dr Cunningham assessed the applicant on 22 October 2024. He also spoke with the applicant's mother. The applicant faced significant childhood disadvantage and trauma. His father, a merchant seaman, used drugs and engaged in anti‑social behaviour, normalising such behaviour at a young age. The traumatic death of his sister coincided with the commencement of the applicant's drug abuse, and he sought acceptance from anti‑social peers who used drugs. Dr Cunningham opines that the applicant's main risk factors are his drug abuse and association with anti‑social peers.

50 The applicant presents with unresolved childhood trauma and struggles to regulate his emotional state and tolerate distress. These factors contribute to his drug abuse, which he uses as a form of escape. Psychological testing showed the applicant has 'significant elevation' of demoralisation, anti‑social behaviour, ideas of persecution and low positive emotions. He also has 'significant elevation' of suicidal ideation, self‑doubt, stress/worry, anxiety and anger proneness. He is not currently suicidal, but in 2024 he began engaging in self‑harm when drug affected.

51 Testing places the applicant in the average range of intellectual functioning. He is a moderate to high risk of future violent offending, and the risk is high if he relapses into drug abuse. If granted bail, Dr Cunningham suggests that the applicant would benefit from engaging in in‑patient drug rehabilitation. It would control his community based risk and provide him with the opportunity for rehabilitation. The applicant is reportedly motivated to engage with treatment.

52 The Cottage, a residential drug rehabilitation facility located in Shepparton, has assessed the applicant as suitable for their program. A bed is available on Monday, 2 December 2024, should he be granted bail. The program is a 12‑week program delivered in three phases. The first phase is the most restrictive and includes no personal phone, no visitors, twice‑weekly urine testing, and mandatory attendance at meetings and workshops. The subsequent phases are less restrictive, and residents may be granted unsupervised offsite day leave if they are 'eligible'. Twice‑weekly urine testing continues throughout all phases of the program.

53 Mr Aaron Gilhooley, general manager of The Cottage, gave evidence on the application. He is aware of the applicant's poor compliance with his DATO, and that does cause him some concern. He conceded that The Cottage is not a secure facility. There are physical checks conducted throughout the day, the first at 7:00am and the last around 11:00pm, but a person could abscond at night. That has occurred on two or three occasions during the six years he has worked there. There have also been approximately 10 or 11 instances of a person been 'signed out' during the day and not returning. Such a breach is usually detected the same day. Any breaches of bail are immediately reported to the police, and he would ensure that occurred in the case of the applicant.

54 The applicant's partner gave evidence on his behalf. She is prepared to provide a surety of $5,000.00 and gave an undertaking to the Court that she would immediately report any breaches of bail by the applicant to the informant. She said the applicant is aware he has missed most of his baby son's life, and wants to be a good father.

55 The applicant relies on the following matters, in combination, to show exceptional circumstances exist that justify the grant of bail:

(a) The applicant has been accepted into The Cottage in Shepparton for a period of residential drug treatment and rehabilitation. He is motivated to attend and engage. The applicant has never attended residential rehabilitation previously.

(b) The applicant suffers from poor mental health and unresolved trauma. He has vulnerabilities which may make custody more burdensome, and which would be best addressed through intensive rehabilitation.

(c) The applicant has the support of his partner and his mother. The applicant's mother has paid a deposit to secure the applicant's position at The Cottage, should he be granted bail.

(d) The applicant's partner will provide a $5,000.00 bail guarantee. While this is not a substantial amount, it is not insignificant. Ms Hawkins has never given evidence on the applicant's behalf before, and has undertaken to report any breaches of bail.

56 The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of endangering the safety and welfare of any person, whether by committing an offence that has that effect or by any other means. It is submitted that the unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of strict bail conditions. The proposed conditions include residing at The Cottage; complying with all lawful directions of The Cottage; engaging in treatment and rehabilitation programs; not contacting witnesses for the prosecution; and not possessing any drugs of dependence or weapons.

57 Bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail, and is an unacceptable risk of endangering the safety and welfare of any person, whether by committing an offence that has that effect or by any other means.

58 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters:

(a) The Cottage program is only available for a period of 12 weeks. There are otherwise no suggested means to support the applicant with complying with his bail conditions once the program at The Cottage ends.

(b) Releasing the applicant to The Cottage on bail would not sufficiently reduce the unacceptable risk. The applicant was undergoing a drug treatment order at the time of the offending and had numerous compliance issues. He was sanctioned on two occasions, and admitted to consistently using methylamphetamine throughout the order. On 14 July 2024, the applicant was subject to a custodial sanction for breach of curfew.

(c) Community Corrections have applied to cancel the applicant's DATO on the grounds that continuation of the order is not likely to reduce the applicant's risk of reoffending, or prevent his relapse into substance use. This underscores that court ordered treatment is insufficient to mitigate the applicant's risk of reoffending or resuming substance abuse. The cancellation application has been adjourned to 4 December 2024 pending the outcome of this bail application.

(d) The respondent submits that the applicant is an unacceptable risk of endangering the safety or welfare of any person, whether by committing an offence that has that effect or by any other means on the following grounds:

(i) The applicant has demonstrated a propensity to engage in dangerous and violent offending which significantly impacts members of the community. He is alleged to have possessed and brandished a firearm in the course of committing most of the alleged offences;

(ii) The applicant has shown a propensity to drive stolen motor vehicles while not holding a valid licence, which poses a significant risk to other road users;

(iii) The applicant has breached numerous court orders, including his DATO, which he was on at the time of the alleged offending. This shows he has little regard for court orders or conditions. He is an unacceptable risk of committing further offences, which presents an unacceptable risk to the public given the seriousness of the offences the applicant has continued to commit; and

(iv) The applicant has a history of committing further offences whilst on bail.

59 The informant sought the views of the complainants PN, DF and AF. They are all opposed to the grant of bail.

60 The respondent accepts the applicant's partner is genuine, but she has no level of control or influence over his drug use and criminal behaviour. She tried, on occasion but without success, to get him to comply with his DATO. It is unlikely she would be any more effective in assisting the applicant to comply with his bail.

61 The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[6]

62 If the applicant is found guilty of the more serious charges, he faces a term of imprisonment. Aggravated carjacking is a category 1 offence under the Sentencing Act 1991 (Vic),[7] and a minimum non‑parole period of three years' imprisonment must be imposed unless a 'special reason' is established.[8] The time the applicant would spend on remand is unlikely to exceed any ultimate sentence, particularly if the applicant is convicted on the most serious charges.

63 I acknowledge the applicant is presumed innocent and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. The charge of aggravated carjacking has a maximum penalty of 25 years' imprisonment. In my view, these are reasonably serious examples of that offence: they were committed in company and involved the use of firearms. Kidnapping is also a serious offence, and again the offending involved the use of firearms and was committed in company.

64 On the material I have, which is necessarily limited on applications such as these, the prosecution case on all charges appears strong. There may be triable issues, but there is nothing about the overall strength of the prosecution case that assists the applicant to establish exceptional circumstances.

65 The applicant's criminal history also does not assist him. It is true he has never been sentenced to a term of adult imprisonment, but he has a history of breaching court orders and was on a DATO at the time of this offending. Indeed, he returned to Drug Court on 4 July 2024, received seven days' imprisonment, and allegedly committed the Patounas offences on the morning of 11 July 2024 which must have been very close to, if not the day of, his release from custody.

66 The proposed bail guarantee is a very modest sum and not a factor that meaningfully contributes to establishing exceptional circumstances. The applicant was living with his partner, the bail guarantor, at the time of the alleged offending. His son was born on 15 June 2024, yet the applicant continued using drugs and committed these alleged offences. I accept the applicant is currently motivated by his young son and a desire to be a good father. I also accept his partner is genuine and sincerely wants to assist the applicant. However, I am doubtful she has any real influence over him if he chooses to resume using drugs. The support of the applicant's mother and partner are positive factors; however, they are not of great weight in all the circumstances.

67 There is one factor of substantial weight here: the availability of residential drug rehabilitation. The applicant has a long standing drug abuse problem which underlies his offending. He has never attended residential rehabilitation previously. His ability to remain drug and offence free between the ages of approximately 18 and 20 corresponds with an absence of court appearances. Residential rehabilitation is onerous. The requirements are stringent, and the applicant will effectively have no option but to participate in treatment and remain drug‑free. The applicant speaks daily with his mother, and she told Dr Cunningham that the applicant is committed to engaging with drug rehabilitation. His partner gave similar evidence. Such treatment will likely promote his recovery and reduce his risk of further offending.

68 The psychological vulnerabilities of the applicant as outlined in the report of Dr Cunningham are also of some relevance. According to Dr Cunningham, the applicant has had a disadvantaged childhood and early exposure to trauma. While there is no clear diagnosis, Dr Cunningham opined the applicant displayed a number of valid symptoms including anxiety, suicidal ideation, self‑doubt and worry, low positive emotions and anti‑social tendencies. He is currently isolated in prison due to the alleged assault on a fellow prisoner (the Davidson matter). The applicant is exercising regularly and hopeful for his future. Ceasing drug use and undergoing drug rehabilitation treatment would improve his mental health, which in turn would improve his overall prospects for rehabilitation.

69 I am satisfied based on a combination of factors, most significantly the availability of residential drug treatment, that the applicant has established exceptional circumstances justifying the grant of bail.

70 The risk of the applicant relapsing into drug use and reoffending is real. That much was not really disputed. The key question is 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.

71 I accept that the applicant has a poor record of complying with court orders, including orders focused on his rehabilitation. His progress on the DATO was poor, and it may be said that he has largely squandered the opportunity that order gave him. However, the applicant remained in the community and in the Dandenong area during that time. He was mixing with anti‑social peers and continuing to use methylamphetamine. Residing at a supervised treatment facility such as The Cottage would go a very considerable way to reducing those risks, and in turn, the risk that the applicant would endanger the safety and welfare of any person. In my view, residential treatment mitigates risk in a way that community‑based treatment is unable to do. A condition imposing residential treatment would severely restrict the applicant's freedom of movement and association, and physically place him well away from the Dandenong area. Such a condition also places the applicant a very considerable distance from the complainants in these matters.[9]

72 It is not necessary to address the other conditions that will be imposed. Those conditions will assist to mitigate risk, but absent the availability of structured and supervised residential drug rehabilitation, I would have concluded that the applicant posed an unacceptable risk in the way alleged by the respondent.

73 The applicant conceded that bail, if granted, should not extend beyond the applicant's attendance at The Cottage. That concession was well made. I do not propose to make a condition that allows for the applicant to reside anywhere other than The Cottage. The applicant will need to apply to vary his bail once he nears the end of the program and seeks to leave that facility. I anticipate that if he completes the program successfully, bail will be varied and continued, if that is sought. However, given the applicant's entrenched drug problem and the seriousness of the alleged offending, it is appropriate that a court consider whether bail should continue at the end of the residential program.

[1] Bail Act 1977 (Vic) sch 1 item 5 ('the Act').

[2] Ibid s 4AA(1).

[3] Ibid ss 4A(4), 4D(a).

[4] Ibid s 4E(1)-(2).

[5] Ibid s 4E(3).

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

[7] Sentencing Act 1991 (Vic) s 3 (definition of 'category 1 offence').

[8] Ibid s 10AD.

[9] The Act s 3AAA(j) requires the Court to take into account any known view or likely view of an alleged victim of the offending on the grant of bail, amount of bail or conditions of bail. I accept that a condition requiring the applicant to reside at The Cottage would be unlikely to change the complainants' view that bail should not be granted. However, if bail were granted, a condition that sees the applicant confined to residential rehabilitation in the Shepparton area would be unlikely to be opposed.