Re Troon; Re Thorne [2024] VSC 607 (1 October 2024)

2 Mr Thorne has been charged with 10 offences arising from the events of 9 May 2024 and its aftermath, and Mr Troon has been charged with 11 offences. The offences include home invasion; intentionally cause serious injury; reckless conduct endangering life; aggravated burglary with a firearm; armed robbery; and common law assault.

3 Mr Thorne and Mr Troon applied for bail in this Court.[1] On 24 September 2024 I granted Mr Troon's application for bail, upon conditions, and I refused Mr Thorne's application for bail.

4 On that day I stated that, in Mr Troon's case, I was satisfied that a compelling reason existed to justify the grant of bail and that I was not satisfied that he posed an unacceptable risk of endangering the safety or welfare of others if released on bail.

5 In relation to Mr Thorne, I stated that I was not satisfied that a compelling reason existed to justify the grant of bail and that, even had I been so satisfied, I was satisfied that he posed an unacceptable risk of endangering the safety or welfare of others if released on bail and that he posed an unacceptable risk of not appearing should bail be granted.

6 I indicated that I would provide reasons at a later date. These are my reasons for those orders.

7 Section 4 of the Bail Act 1977 ('the Act') provides that a person accused of an offence and being held in custody in relation to that offence is entitled to be granted bail unless the bail decision maker is required to refuse bail by the Act.

8 Section 4AA(3) of the Act provides that the 'step 1 - show compelling reasons test' applies to a decision about whether to grant bail to a person accused of a sch 2 offence (subject to certain exceptions that are not presently relevant). The compelling reasons test requires a bail decision maker to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[2] The burden of satisfying the bail decision maker that a compelling reason exists rests on the bail applicant.[3] In considering whether a compelling reason exists, the bail decision maker must take into account the surrounding circumstances, including but not limited to those in s 3AAA(1) of the Act.[4]

9 The surrounding circumstances set out in s 3AAA(1) that are relevant in the present applications are as follows:

(a) whether, if the accused is found guilty, it is likely that he or she would be sentenced to a term of imprisonment and, if so, whether the likely period of time on remand would exceed that term of imprisonment;

(b) the nature and seriousness of the alleged offending ...;

(c) the strength of the prosecution case;

(d) the accused's criminal history;

(e) the extent to which the accused has complied with the conditions of any earlier bail order;

(f) whether the accused was subject to a summons in relation to other offending;

(g) whether the accused was subject to a community correction order in respect of other offending;

(h) whether there is family violence intervention order in force in relation to the accused;

(i) the accused's personal circumstances, associations, home environment and background; and

(j) any special vulnerability of the accused.

10 Whilst in a particular case it may be that none of these factors individually constitute a compelling reason, it may be that, when considered cumulatively, they satisfy the compelling reason test. The relevant question is whether, viewed as a whole, the surrounding circumstances can be regarded as compelling so that a grant of bail would be justified.[5]

11 The Act does not define or elaborate on 'compelling reason'. However, the analysis by Beach JA in Re Ceylan[6] has been applied on numerous occasions by this Court and was approved and summarised by the Court of Appeal in Rodgers v The Queen as follows:

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

(b) However, it is not necessary for an applicant to show a reason that is irresistible or exceptional.

(c) A compelling reason is one which is forceful and therefore convincing - a reason which is 'difficult to resist'.[7]

12 If satisfied that a compelling reason exists that justifies the grant of bail, this Court must then apply the 'step 2 - unacceptable risk test'.[8] Bail must be refused if the bail decision maker is satisfied by the respondent that there is, relevantly for present purposes, a risk that the applicant would:

(a) endanger the safety or welfare of any person, whether by committing an offence that has that effect or by any other means; or

(b) fail to surrender into custody in accordance with the conditions of bail; and

(c) and that such a risk is an unacceptable one.[9]

13 In applying the unacceptable risk test, the bail decision maker must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[10] Some risks of offending on bail, even a high risk, may not be unacceptable for the purposes of the Act. The calculus involves an assessment of the probability of the risk eventuating and the likely harm if it does.[11]

14 In determining an application for bail, the bail decision maker is required to have regard to the guiding principles as set out in s 1B(1) of the Act.[12] Of particular relevance in the present context are the following principles in s 1B(1):

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

(b) taking account of the presumption of innocence and the right to liberty ... .

15 As the Court of Appeal observed in FT (a pseudonym) v The King, the question of risk is forward-looking and involves a predictive exercise. It is often based on incomplete material. 'Self-evidently, one factor that will inform that assessment is the behaviour of the person in the past'.[13] That behaviour can include the person's criminal history. It can also include reliance on the charges themselves, even though they have not at the time been proven.[14]

16 In the present case, the parties agreed that the compelling reason test applies to both Mr Troon and Mr Thorne, on the basis that each of them has been charged with several sch 2 offences. I must therefore refuse bail in each case unless I am satisfied that a compelling reason exists to justify the grant of bail.

(a) there is an unacceptable risk that Mr Troon will endanger the safety or welfare of others; and

(b) there is an unacceptable risk that Mr Thorne will endanger the safety or welfare of others and that he will fail to surrender in accordance with the conditions of bail.

18 Thus if I were to be satisfied that Mr Thorne and/or Mr Troon have made good a compelling reason, but I found there to be an unacceptable risk of the relevant kind, then I would be required to refuse bail. If I was not satisfied that there was an unacceptable risk, I would be required to grant bail.

19 On 9 May 2024 Mr Nicol is alleged to have communicated with Mr Thorne by text message to organise for Mr Thorne to bring him some methylamphetamine and a Coles grocery order that Ms Speth had earlier placed online. Separately, Ms Speth had engaged in a series of text messages with Mr Thorne late on 8 May 2024 and early on 9 May 2024 about her concerns about Mr Nicol's behaviour, including saying that he had hit her and that she had a black eye. She had requested that Mr Thorne help her get out of the house. At 3:25 pm Mr Thorne sent Mr Nicol two text messages: 'on my way' and 'leave now'.

20 Mr Thorne and Mr Troon are alleged to have driven to Mr Nicol's home in Clear Lake on 9 May 2024 in a blue dual cab utility shortly after 3:25 pm. The prosecution case is that, when they arrived at the house, they were permitted entry. At that time Ms Speth was asleep in a bedroom. As mentioned previously, Mr Nicol identified one of the men who arrived at the house as 'Gary' and Ms Speth identified the same man as Gary Thorne. The complainants did not identify the second man, who the respondent alleges was Troon.

21 Shortly after they entered the house, Mr Troon is alleged to have said to Mr Thorne 'I will get that' and returned to the ute. Mr Nicol believed Mr Troon was going to get the methylamphetamine. However, it is alleged that Mr Troon retrieved a firearm (a single barrel shotgun) from the ute and then returned to the house. Mr Nicol, upon seeing the gun, forced the door shut with an axe handle. Mr Nicol says that Mr Thorne approached him from behind and he heard Mr Troon shout 'do it, do it now'. Mr Nicol believed that Mr Thorne and Mr Troon were going to kill him and he swung the axe towards Mr Thorne and hit him. Mr Nicol then recalls hearing two gun shots before losing consciousness.

22 Mr Nicol says that, when he came to, he was lying on his back and Mr Troon had him in a choke hold. Mr Nicol had blood coming out of his face and he could not use his right arm. He says that Mr Thorne then struck him with a metal pole from Mr Nicol's gym set and he blacked out again. When he next regained consciousness Mr Nicol says he saw Ms Speth standing over him dressed in black and holding a long black bar in her hands. He says that Ms Speth swung the bar in his direction, but he blocked it with his left hand. Ms Speth continued to swing the bar towards Mr Nicol, who says he was in and out of consciousness.

23 Ms Speth says that she attempted to intervene in the assault of Mr Nicol by Mr Thorne and Mr Troon, but Mr Troon kicked her.

24 After the assault Mr Thorne and Mr Troon are said to have left Mr Nicol's house together and driven away in the ute. However, it is alleged that they returned a short time later, with Mr Thorne in possession of the gun, and took the phones of both the complainants. They then left the property in the ute. Independent witnesses observed a blue twin cab ute on the road outside Mr Nicol's house during the relevant period. A vehicle of that description is owned by Mr Troon's mother and Mr Troon and Mr Thorne had been captured on CCTV using such a vehicle in the weeks prior to the alleged offending. Mobile phone tower data also places Mr Thorne's and Mr Troon's mobile phones in the vicinity of each other and of Mr Nicol's home on 9 May 2024.

25 Mr Thorne and Mr Troon were both arrested on 13 May 2024 at a property in Horsham. At one point in the course of his arrest, Mr Thorne attempted to escape.

26 A blue dual cab ute registered to Mr Troon's mother was parked outside the property where Mr Troon and Mr Thorne were arrested. The ute was seized and DNA samples taken from it. Mr Nicol's and Ms Speth's SIM cards were found at that property. A search of Mr Thorne's and Mr Troon's mobile phones found various text messages, including messages between them that support the prosecution case that Mr Troon was the man with Mr Thorne at the time of the alleged offending.

27 Later that day, police executed a search warrant at Mr Troon's residential address where they found knuckle-dusters (a prohibited weapon) and ammunition that was not stored properly. A Winchester .22 rifle was located inside a car registered to Mr Troon (also not stored properly). A fragment of bullet was retrieved from Mr Nicol's shoulder, and was found to be from a bullet fired from a .22 rifle. Investigators were unable to match the fragment to the firearm seized from Mr Troon but were also unable to rule out that the fragment came from the seized firearm; investigators are awaiting a further ballistics report in relation to the .22 firearm. Investigators are also awaiting the outcome of DNA testing, including on a cap found at Mr Nicol's home that resembled a cap that Mr Troon had earlier been captured wearing on CCTV.

28 Mr Thorne has been charged with 10 offences arising from the above matters:

(a) home invasion;[15]

(b) intentionally cause serious injury;[16]

(c) aggravated burglary (firearm);[17]

(d) reckless conduct endangering life;[18]

(e) armed robbery;[19]

(f) use firearm in contravention of a firearm prohibition order;[20]

(g) possess a firearm in contravention of a firearm prohibition order;[21]

(h) prohibited person in possession of a firearm;[22]

(i) common law assault;[23] and

(j) escape from lawful custody.[24]

29 Mr Troon has been charged with 11 offences arising from the above matters:

(a) home invasion (damage) with firearm;[25]

(b) intentionally cause serious injury;[26]

(c) reckless conduct endangering life;[27]

(d) aggravated burglary (firearm);[28]

(e) armed robbery;[29]

(f) common law assault (two counts);[30]

(g) possess a prohibited weapon without exemption;[31]

(h) fail to store category A and B longarm in manner provided;[32]

(i) fail to store cartridge ammunition for category A and B longarm in manner provided (two counts).[33]

Is there a compelling reason justifying the grant of bail to Mr Troon?

30 The first question for determination is whether Mr Troon has established a compelling reason that justifies the grant of bail. In that regard, Mr Troon relies on the following matters to make out a compelling reason:

(a) he has no prior criminal history;

(b) he has no other matters pending or outstanding;

(c) he was not on bail at the time of the alleged offending;

(d) he is not subject to any family violence intervention orders or similar orders;

(e) the strength of the prosecution case;

(f) the delay in the matter proceeding to trial;

(g) he has strong family support;

(h) he has a stable address at which he can reside if bailed;

(i) he has no drug, alcohol or other issues requiring bail support services;

(j) he runs his own business; and

(k) the presumption of innocence.

No prior criminal history and no matters pending

31 There was no dispute that Mr Troon has no prior criminal history and no matters pending before the courts. This supports his case that there is a compelling reason to grant bail, but does not alone provide a compelling reason.

32 Of course, his lack of prior criminal offending also means that various other matters set out in s 3AAA weigh in his favour: he has not failed to comply with any earlier grant of bail (s 3AAA(1)(d)); and he was not on bail or remand or otherwise awaiting trial for any other offending at the time of the alleged offending in this case (s 3AAA(1)(e)). Nor are there any family violence intervention orders or other similar orders in force in relation to Mr Troon, or any history of such orders ((s 3AAA(1)(f)).

33 I accept that all these matters support Mr Troon's case that there is a compelling reason to grant him bail.

34 Mr Troon submitted that the prosecution case against him is not strong and that the allegations against him are circumstantial. In particular, he noted the following matters:

(a) there are significant questions concerning the reliability of both complainants, whose evidence differs in key respects. Furthermore:

(i) Mr Nicol is an ice addict; and

(ii) the informant gave evidence that Ms Speth is under investigation in relation to her role in the events in question, and may become a co-accused;

(b) Mr Nicol's statement is to the effect that he initiated the violence on 9 May 2024 by striking Mr Thorne with an axe;

(c) the evidence supports the proposition that Ms Speth was a victim of family violence on the part of Mr Nicol, and that she had sought help from Mr Thorne to escape that violence, thus it was possible to characterise the events as an attempt to 'save' Ms Speth that had 'got out of hand';

(d) Mr Troon and Mr Thorne had initially been invited into Mr Nicol's home, thus putting in doubt the home invasion charges;

(e) there was no evidence that Mr Troon (or Mr Thorne) had brought the firearm with them to the property with an intention to use it;

(f) neither of the complainants identified Mr Troon, including in a photoboard; and

(g) there is no DNA or other forensic evidence linking Mr Troon to the offending.

35 In response, the respondent submitted that although the case against Mr Troon is circumstantial, it is not weak. The respondent pointed to the following aspects of the prosecution case:

(a) There is no dispute that Mr Nicol was shot; and no real dispute that he was assaulted. While there may be a dispute about who shot him, and who assaulted him, and who caused what injuries, the prosecution case will likely be put on the basis of complicity, thus these disputes will not loom large in the determination of whether the accused (and/or Ms Speth) are guilty of the alleged offences.

(b) Mr Thorne's identity as one of the men present at Mr Nicol's home on 9 May 2024 is the subject of evidence by both Mr Nicol and Ms Speth, and mobile phone data supported the proposition that his and Mr Troon's phones travelled together to the Clear Lake area at the relevant time, moving away together afterwards, and travelling back to Horsham together, thus assisting in identifying Mr Troon as the second man at Mr Nicol's house.

(c) Mobile phone data also showed relevant messages between Mr Thorne and Mr Troon prior to the alleged offending. In particular, some messages suggested that Mr Troon and Mr Thorne were going to meet at the 'pet cemetery'.

(d) In addition, some text messages between Mr Troon and Mr Thorne after the event might amount to incriminating conduct.

(e) DNA testing of items found at Mr Nicol's address is underway, including on a cap resembling a cap Mr Troon had been wearing in the days before the offending. A statement from ballistics concerning the firearm is also pending.

36 In deciding bail applications it is often neither possible nor appropriate to analyse the prosecution case in detail. Nor is it appropriate for a court at this early stage to make pre‑emptive judgments about the strength of the prosecution case. Rather, it is often necessary for the court to rely on a broad assessment of the matters raised in the informant's report.[34] That is the case here.

37 Insofar as I can make such an assessment in the present case, I am not in a position to conclude that the prosecution case against Mr Troon should be regarded as inherently weak. It seems to me, on the allegations put forward, that the prosecution has an arguable case. I accept that there appear to be triable issues that Mr Troon may raise; however, it seems to me that there is sufficient evidence capable of pointing towards Mr Troon's guilt of at least some of the most serious offences alleged, including the use of the firearm. That is so even accepting the proposition that Mr Thorne and Mr Troon thought that they were 'rescuing' Ms Speth, because that sentiment is unlikely to justify shooting Mr Nicol and then violently assaulting him while he was unconscious (noting that the case is one based on complicity).

38 Mr Troon was remanded in custody on 13 May 2024. He submitted that the time he will spend on remand is likely to be lengthy, namely between 12 and 18 months. He conceded that the likely penalty for offending of this nature would be a term of imprisonment, but he denies the offending. He submitted that this delay is a significant matter, especially for a first-time offender.

39 The respondent did not dispute the length of the likely delay.

40 I accept that there will likely be a delay of between 12 and 18 months before Mr Troon faces trial, during which he will be held on remand if not granted bail. I do not consider that the delay is excessive, but it is nonetheless a significant period for an accused person to spend on remand. Nor do I consider that the probable delay before trial is likely to exceed the sentence that would be likely to be imposed on Mr Troon if the charges are proved. The charges are very serious, and if they are proved following a contested trial, a lengthy custodial sentence is likely. Taken alone, I would not regard the delay in this case as giving rise to a compelling reason to grant bail.

41 Mr Troon is 31 years old. He has two children from two previous relationships, but is not currently in a relationship. He has resided in the Horsham area all his life. The affidavit filed by his solicitor in support of his application stated that he has a history of depression, however no medical report was provided to substantiate that claim.

42 Mr Troon submitted that that he has a good work history, commencing at age 14. Prior to his remand into custody, he was self-employed in his own car detailing business.

43 Mr Troon also submitted that he has strong family support and that he will reside with his mother should he be granted bail. His mother and other members of his family were in court in support of him and I inferred from their presence, and their demeanour in court, that they do, in fact, support him. His mother, at whose address he would be required to reside if granted bail, did not give evidence, but that fact was explained by her role as a potential witness in the proceeding, given that her car is alleged to have been used in the course of the offending.

44 Mr Troon holds a firearms licence, but accepted that an appropriate condition of bail would be that he surrender that licence to police.

45 I accept that Mr Troon's personal circumstances support the conclusion that there is a compelling reason to grant bail. In particular, I take note of his family support, his stable and appropriate residential address and the fact that he runs his own business (which, I infer, he can continue to do if released on bail).

46 In my opinion, Mr Troon demonstrated a compelling reason that justified the grant of bail in his case. My conclusion that he ought to be granted bail is compelled by a combination of matters:

(a) the fact that he has no criminal record;

(b) the support available to him from his family;

(c) the fact that he has a stable and appropriate residence available;

(d) the fact that he can continue his own business if released on bail;

(e) that while the prosecution case is not weak, it is circumstantial in nature in so far as Mr Troon is concerned, and there are triable issues, in particular concerning the reliability of both Mr Nicol and Ms Speth; and

(f) that there will be a significant delay during which Mr Troon will be on remand awaiting trial (although I accept that any delay is unlikely to approach or exceed the likely sentence that would be imposed on him for the offending in question, given the serious nature of the alleged offending).

47 His case, while not irresistible or exceptional, is, in my view, convincing.

Is there an unacceptable risk that Mr Troon will further offend?

48 The respondent submitted that Mr Troon poses a risk to the safety or welfare of others. The basis for this submission was that it is alleged that Mr Troon shot and seriously assaulted Mr Nicol, causing him serious injuries. Mr Nicol has also said that he is concerned for his safety if Mr Troon is released on bail.

49 Mr Troon submitted that any risk that he might endanger the safety or welfare of another person can be mitigated by the imposition of the following bail conditions:

(a) he reside at his mother's home in Dimboola;

(b) he be subject to a curfew;

(c) he is to present himself at the front door of the address where he will reside at the direction of any police officer to confirm compliance with the curfew condition;

(d) he is not to go within 20 kilometres of Clear Lake;

(e) he is to report to Dimboola Police Station;

(f) he is to surrender any firearms licence to police;

(g) he is to not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to Dimboola Police Station within 24 hours of taking or resuming possession of any such service.

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

(i) he is to surrender any passports held to police; and

(j) he is not to contact any witnesses for the prosecution.

50 In response to these proposed conditions, the respondent submitted that the conditions cannot be easily monitored because the Dimboola Police Station is not a 24-hour station and the area in question is remote; therefore the risk of danger to the safety and welfare of others is not appropriately mitigated. Mr Troon submitted that that risk could be dealt with by varying the reporting condition to Horsham Police Station, which is a 24-hour station. In her evidence the informant accepted that it would be better for Mr Troon to report to a 24-hour station, but she said that this did not change her view that Mr Troon posed an unacceptable risk of endangering others.

51 The informant also expressed concern that Mr Troon might have a firearm that has not been seized in the course of the present investigation, given that the bullet fragment retrieved from Mr Nicol's shoulder could not be matched to any of those firearms. I regard this concern as somewhat speculative, given that the investigators were not able to rule out the proposition that the fragment matched one of the firearms.

52 In light of Mr Troon's absence of any history of criminal offending, and bearing in mind the proposed conditions of bail, I consider that there is only a limited risk of Mr Troon offending while on bail (and it was not otherwise said that he posed any danger to others). I do not consider that risk to be an unacceptable risk in the circumstances.

53 For the above reasons, I granted Mr Troon's application for bail, on conditions similar to the conditions set out above.

Is there a compelling reason justifying the grant of bail to Mr Thorne?

54 The first question for determination is whether Mr Thorne has established a compelling reasons that justifies the grant of bail. He relied upon a combination of the following 'surrounding circumstances':

(a) the strength of the prosecution case;

(b) the likely delay before trial;

(c) his personal circumstances;

(d) the availability of a stable residence if bail is granted; and

(e) the potential availability of treatment and support services if bail is granted.

56 Mr Thorne adopted the submissions made by counsel for Mr Troon in relation to the strength of the prosecution case, and made some additional submissions as follows:

(a) Mr Nicol said that Mr Troon had the firearm and discharged it;

(b) there is no evidence that Mr Thorne ever fired a weapon in the course of the incident;

(c) Mr Thorne was only said to have been in possession of the firearm after the assaults had finished;

(d) the only evidence that supports the allegation that Mr Thorne was in possession of a firearm was that of Ms Speth, whose reliability is in issue.

57 In contrast, the respondent submitted the case against Mr Thorne should be regarded as relatively strong, as explained above. The respondent submitted that the two co-accused were acting on a complicity basis, thus issues concerning who had and discharged the firearm were of limited relevance.

58 Again, I am not in a position to conclude that the prosecution case against Mr Thorne should be regarded as inherently weak. It seems to me, on the allegations put forward, that the prosecution has a reasonable case. Unlike the case against Mr Troon, the case against Mr Thorne is not circumstantial in nature: two witnesses place Mr Thorne at Mr Nicol's home and implicate him in the assaults. I accept that there appear to be triable issues that Mr Thorne may raise, again concerning the reliability of Mr Nicol and Ms Speth; however, it seems to me that there is sufficient evidence capable of pointing towards Mr Thorne's guilt of at least some of the most serious offences alleged. Again that is so even if the proposition that Mr Thorne thought that he was 'rescuing' Ms Speth is accepted.

59 Mr Thorne submitted that the likely time of any trial is the second half of 2025, resulting in Mr Thorne spending 12 to 18 months in custody awaiting trial. He submitted that, while this delay does not necessarily exceed a sentence likely to be imposed, it is excessive having regard to the triable issues in the prosecution case. Again, there was no dispute about the likely delay prior to trial. However, the respondent submitted that Mr Thorne was likely to be sentenced to a period of imprisonment well in excess of 18 months' imprisonment.

60 I accept the respondent's submission. In my opinion, there is no real prospect that Mr Thorne's time spent on remand would exceed any sentence imposed if he is found guilty of the alleged offences, or some of them, because any sentence is likely to be well in excess of 18 months. I have reached that conclusion in light of the seriousness of the offending and Mr Thorne's extensive criminal history.

61 Mr Thorne is 26 years old and grew up in the Horsham area. He submitted that he experienced an 'extremely challenging childhood', including being exposed to drug use and family violence from a young age, and that he spent time in foster care. He has been diagnosed with ADHD, anxiety and depression. His medical records also indicate a potential diagnosis of schizophrenia, but no medical evidence was provided in relation to any formal diagnosis. He currently has a partner, Helen Hateley. Ms Hateley gave evidence at the hearing that Mr Thorne could reside with her if he was released on bail; I will return to her evidence below.

62 Mr Thorne also has an extensive criminal history dating back to 2015, including the following serious offences, many involving violence, committed when he was an adult:

(a) recklessly causing injury and recklessly causing serious injury (multiple convictions);

(b) unlawful assault, common law assault and assaulting an emergency worker on duty (multiple convictions);

(c) criminal damage by fire; and

(d) knowingly possessing child pornography.

63 In addition, he has multiple offences relevant to the question whether he is likely to comply with any conditions of bail, including:

(a) committing an indictable offence while on bail (multiple convictions);

(b) failure to comply with reporting obligations (multiple convictions);

(c) contravening a community correction order ('CCO') (multiple convictions);

(d) contravention of a family violence intervention order (multiple convictions) and persistent contravention of a family violence intervention order;

(e) escaping from lawful custody (multiple convictions);

(f) possessing a controlled weapon without excuse (multiple convictions);

(g) prohibited person in possession of a firearm.

64 Mr Thorne is also presently subject to two separate summonses, one in relation to a charge of recklessly causing injury and one in relation to a charge of failing to comply with his reporting obligations.

65 Finally, Mr Thorne is presently subject to a CCO.

66 Mr Thorne's personal circumstances in some respects support his case that there is a compelling reason to grant him bail. However, his criminal record weighs against concluding that he has shown a compelling reason.

The availability of a stable residence if bail is granted

67 Mr Thorne submitted that, in the year prior to his remand, he was experiencing homelessness - he was transient and was either 'couch surfing' with friends or 'sleeping rough'. However, he now has the availability of stable accommodation with his partner, Ms Hateley, who resides in Horsham. Mr Thorne submitted that this was a 'significant departure' from his 'long history of difficulty finding stable accommodation'. Ms Hateley gave evidence at Mr Thorne's initial bail application that he could reside with her at her home in the event that bail was granted. She also gave evidence before me to the same effect.

68 Mr Thorne submitted that Ms Hateley is a person of good character. She does not have a criminal history and has stable employment in the area. She gave sworn evidence that she would contact police if the Mr Thorne was to breach any bail conditions imposed upon him by the court.

69 However, the respondent submitted that Ms Hateley has young children who reside with her at her home. Ms Hateley's evidence was that her minor children who reside with her are eight and 14 years of age. The respondent submitted that Mr Thorne is a registered sex offender (which was not in dispute) as a consequence of his knowingly possessing child pornography and, for that reason, and having regard also to the rest of Mr Thorne's criminal history, Ms Hateley's address is unsuitable.

70 Mr Thorne is fortunate to have the support of his partner, Ms Hateley. However, notwithstanding her evidence about her willingness to have Mr Thorne reside with her, I do not consider that it is appropriate for this Court to impose a bail condition that requires a registered sex offender, where the offending in question involved the possession of child pornography, to reside at an address where minor children are also residing.

71 No alternative address was offered in relation to Mr Thorne's place of residence, if he were to be released on bail.

The potential availability of treatment and support services if bail is granted

72 Mr Thorne initially submitted that support under the Court Integrated Service Program ('CISP') would be available to him if he were released on bail. In response, the respondent submitted that Mr Thorne has not been found suitable for CISP, and that he has been found in breach of all CCOs imposed on him previously.

73 In any event, Mr Thorne filed a further report provided by the CISP Remand Outreach Program ('CROP') that recommended Mr Thorne for 'brief intervention case management'. That was described as follows:

An episode of brief intervention case management is available to accused persons with matters being heard at non-CISP locations. The participant will receive one-month post release phone support through the CROP. The brief intervention case management episode will allow for follow up of the referrals and/or supports arranged on behalf of Mr Thorne. A final report will be completed at the end of the one-month period to outline Mr Thorne's engagement with services arranged.

74 This very limited form of support does not, in my opinion, provide a compelling reason to grant bail to Mr Thorne.

75 Mr Thorne also submitted that he has the 'possibility of engaging with the Australian National Disability Service' ('ANDS') if released on bail. A letter provided by ANDS stated that it was 'providing Support coordination service to Mr Thorne ... assisting him to connect with NDIS providers, community, mainstream and other government services'. The letter stated that ANDS had made referrals to a 'behaviour practitioner and occupational therapist with positive outcome' (which appears to mean that the practitioners involved accepted the referral). The letter described the services that ANDS would provide to Mr Thorne as follows:

Once released as requested by Mr Thorne, ANDS would be connecting him with suitable accommodation providers, support worker services for community access and other services in accordance with NDIS fundings for easier transition to the community.

Upon his release to the community the support coordinator' team could assist Mr Thorne with the requested services such as arranging support staff as a source of transportation from prison to the allocated residence, support staff for attending appointments as well as access to social and community, connection to relief services such as salvation army for food and clothing vouchers, request to the allocated clinicians to assist with free travel pass from Public Transport Victoria application and assistance with short term accommodation and connection with public housing applications for long term accommodation.

76 Again, this limited form of support does not provide a compelling reason to grant bail to Mr Thorne.

77 In my opinion, Mr Thorne did not demonstrate a compelling reason that justified the grant of bail in his case. These are very serious charges, and Mr Thorne has a troubling criminal history. His strongest argument was that of delay, with the result that he is likely to spend more than 12 months on remand awaiting trial. However, as noted above, I consider that any delay is unlikely to approach or exceed the likely sentence that would be imposed on Mr Thorne for the offending in question, given the serious nature of it and his extensive criminal history. I have taken into account the fact that there are some aspects of the prosecution case that might be subject to challenge; but as explained above, I do not consider the prosecution case to be inherently weak. Nor do his personal circumstances persuade me that there is a compelling reason to justify the grant of bail.

78 Ultimately, even considering all the matters put on Mr Thorne's behalf cumulatively, I am not satisfied that there is a compelling reason to grant bail to Mr Thorne.

Is there an unacceptable risk that Mr Thorne will further offend or fail to appear?

79 If, contrary to my conclusion above, I had concluded that there is a compelling reason to justify the grant of bail to Mr Thorne, I would nonetheless have concluded that Mr Thorne poses an unacceptable risk of endangering the safety or welfare of others by reason of the risk that he will commit further offences while on bail and that he poses an unacceptable risk of failing to surrender in accordance with the conditions of bail.

80 In relation to these matters, Mr Thorne submitted the Court must have regard to all of the surrounding circumstances, and in particular to the delay and the strength of the prosecution case. In that regard, Mr Thorne referred to the decisions of the Court of Appeal in HA (a pseudonym) v The Queen[35] and Zayneh v The King.[36]

81 He referred to the following matters as relevant to the assessment of risk:

(a) that he would be able to access support from CROP and the ANDS;

(b) that he would be bailed to stable accommodation with Ms Hateley;

(c) that neither the ANDS support nor the prospect of stable accommodation were available at the time that Mr Thorne was remanded and that they represent a significant change in circumstances;

(d) that no firearm was located at Mr Thorne's residence during the execution of the search warrants, that the only firearm seized was from the residence of the co-accused, and that there is no evidence of any further ability to access firearms;

(e) that Mr Thorne was not on bail at the time the offences are alleged to have been committed; and

(f) that the charges subject to the two pending summonses can be distinguished.

82 Mr Thorne also submitted that any perceived or potential risk can be mitigated by the following proposed bail conditions:

(a) that he reside at a fixed residential address, namely Ms Hateley's home in Horsham;

(b) that he be subject to a curfew from 10pm to 6am;

(c) that he present at the front door of the premises during curfew hours;

(d) that he report (as the Court requires) between 6am and 8pm at Horsham Police Station;

(e) that he not contact, directly or indirectly, Mr Troon;

(f) that he not contact, directly or indirectly, any witnesses for the prosecution except the informant;

(g) that he provide the informant with the phone number and IMEI number of any mobile phone he possesses or uses within 24 hours of first having access to that phone;

(h) that he surrender his passport and not apply for any other travel documents;

(i) that he not leave Victoria;

(j) that he not attend points of international departure;

(k) that he not attend Clear Lake;

(l) that he not use a drug of dependence;

(m) that he follow all lawful directions of CROP;

(n) that he be subject to judicial monitoring; and

(o) such other conditions as the Court deems appropriate.

83 The respondent contended that the proposed residential address is unsuitable, for the reasons set out above. More generally, the respondent contended that Mr Thorne's criminal history - in particular, his flouting of many court orders - made it clear that he poses an unacceptable risk of re-offending, with a corresponding risk of endangering others.

84 I am satisfied on the basis of the material before me that Mr Thorne poses an unacceptable risk of endangering the safety or welfare of others. The basis for that conclusion is that there is a significant risk that Mr Thorne will commit further offences while on bail. I reached that conclusion in light of Mr Thorne's extensive criminal history, in particular, which is summarised above and includes matters involving violence. His criminal record also reveals that earlier convictions and court orders have not deterred Mr Thorne from violent criminal offending. Furthermore, the risk is, in my opinion, an unacceptable risk given the nature of both the present alleged offending and his prior offending. In that regard, I consider the probability of the risk eventuating to be reasonably high, and the likely harm if it does eventuate to be significant.

85 I do not accept Mr Thorne's response to the respondent's submissions on unacceptable risk. His submissions significantly downplayed his criminal history, which, as I have said, is extensive and involves violent offending and frequent breaches of court orders. His submissions also over-emphasised the supports that would be available to him in the community. The CROP support is limited to one month and relies upon Mr Thorne thereafter voluntarily engaging with programs to which he is referred. The ANDS support is directed to supports relevant to Mr Thorne's disabilities, but not directly to the likelihood of further criminal offending. I accept that such supports could go some way to reducing the likelihood of further offending, but they do not reduce the risk to such a level that I regard it as an acceptable risk. As noted above, I also do not accept that Mr Thorne's proposed place of residence with Ms Hateley is available to him, given that she has young children living with her.

86 I am also satisfied that there is a risk that Mr Thorne would not surrender in accordance with the conditions of his bail, if bail were granted. The basis for that conclusion is that Mr Thorne has prior criminal convictions for breaching CCOs and reporting obligations and for escaping lawful custody, and that he attempted to escape in the course of his arrest for the present offending. Again, I consider that risk to be an unacceptable risk, in light of his history.

87 I do not consider that either of these risks would be sufficiently mitigated by the bail conditions proposed by Mr Thorne. Importantly, Mr Thorne's proposed residential address is unsuitable and no alternative address was identified. As noted, the CROP intervention would be limited in nature; and the supports available to him under the ANDS are also relatively limited. Furthermore, Mr Thorne's history in relation to compliance with CCOs and reporting conditions causes me to conclude that there is real likelihood that Mr Thorne would not comply with the proposed bail conditions.

88 For the above reasons, I refused Mr Thorne's application for bail.

[1] Both accused had previously applied for bail at the Horsham Magistrates' Court, where bail was refused.

[5] Re Ashton (2020) 283 A Crim R 1, 6-7 [36] (Elliot J); [2020] VSC 231.

[6] [2018] VSC 361.

[7] [2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA).

[11] FT (a pseudonym) v The King [2024] VSCA 90, [96] (Beach, McLeish and Niall JJA) ('FT').

[12] Namely, maximising the safety of the community and persons affected by crime to the greatest extent possible; taking account of the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in bail decision making; and promoting public understanding of bail practices and procedures.

[13] FT [2024] VSCA 90, [79].

[14] FT [2024] VSCA 90, [79].

[15] Contrary to s 77A of the Crimes Act 1958.

[16] Contrary to s 16 of the Crimes Act 1958.

[17] Contrary to s 77 of the Crimes Act 1958.

[18] Contrary to s 22 of the Crimes Act 1958.

[19] Contrary to s 75A of the Crimes Act 1958.

[20] Contrary to s 112B of the Firearms Act 1996.

[21] Contrary to s 112B of the Firearms Act 1996.

[22] Contrary to s 5(1) of the Firearms Act 1996.

[24] Contrary to s 49E of the Summary Offences Act 1966.

[25] Contrary to s 77A of the Crimes Act 1958.

[26] Contrary to s 16 of the Crimes Act 1958.

[27] Contrary to s 22 of the Crimes Act 1958.

[28] Contrary to s 77 of the Crimes Act 1958.

[29] Contrary to s 75A of the Crimes Act 1958.

[31] Contrary to s 5AA of the Control of Weapons Act 1990.

[32] Contrary to s 150(2) of the Firearms Act 1996.

[33] Contrary to s 121(1A) of the Firearms Act 1996.

[34] Re Eyles [2024] VSC 477, [60] (Champion J).

[35] [2021] VSCA 64, [6] (Maxwell P and Kaye JA).

[36] [2023] VSCA 331, [6]-[7] (Walker, Taylor and Boyce JJA).