Re Velluto [2020] VSC 188 (20 April 2020)

1 Anthony Velluto, the applicant, applies for bail in respect of a number of charges he faces in respect of offences of dishonesty and other offending. There are two separate groups of charges laid by separate informants, Detective Senior Constable Westlake, and First Constable Jory. There are charges of theft of and from motor vehicles, many charges of handling stolen goods, drug offences, and offences under the Bail Act 1977 ('the Act').

2 The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing a Schedule 2 offence whilst on bail for another Schedule 2 offence.

3 The applicant has been in custody since his arrest for the Informant Jory matters on 20 January 2020. He was refused bail in the Melbourne Magistrates' Court on 25 March 2020, on the basis that he had failed to demonstrate the existence of exceptional circumstances. In addition, he was found to be an unacceptable risk of committing an offence while on bail and failing to surrender into custody in accordance with conditions of bail.

4 Both the Westlake and Jory matters are next listed in the Melbourne Magistrates' Court for contest mention on 28 April 2020.

5 The applicant also faces charges for outstanding matters on which he was previously released on bail or charged under summons. These matters were laid by Senior Constable McDonald and Constable Terzi.

6 In March 2019, police commenced an investigation into a factory located at 12B Bailey Avenue, Keilor East, suspected of being utilised in vehicle theft activities.

7 On 2 July 2019, police executed a search warrant at the factory premises while the applicant was present. A grey Mitsubishi Lancer that appeared to be undergoing repairs was seized. Forensic examinations revealed that the vehicle's identification number had been altered and that its correct identification number matched that of a Mitsubishi that was reported stolen from Roxburgh Park on 28 April 2016.

8 On 11 November 2019, a grey Volkswagen Amarok was reported stolen from Frankston. It is alleged that the vehicle was captured on CCTV arriving at 12B Bailey Avenue, Keilor East at 7.05am in convoy with a black Holden utility driven by the applicant, before it was driven away from the factory at 11.32am, with the applicant following in a silver Mercedes coupe. It is alleged that the CCTV footage depicts the Volkswagen leaving the factory premises with its roof racks and side awning having been removed. The Volkswagen was allegedly captured on CCTV footage being parked a short time later in Webber Parade, Keilor East, before its unidentified driver was captured leaving the scene in the Mercedes coupe driven by the applicant.

9 Police located the stolen Volkswagen at 12.55pm and executed a further search warrant at the Bailey Avenue factory at 4.28pm where roof racks, awning, a damaged Volkswagen Amarok tail light, an air compressor that had previously been reported stolen, and five vials of peptides were located. It is alleged that the applicant was present at the time of the search but concealed himself to avoid detection. He was allegedly captured on CCTV footage throwing a small dog out of a window located on the top floor of the factory at 8.16pm, before leaving the premises via the same window.

10 A warrant to arrest the applicant was issued on 3 January 2020.

11 At approximately 10.17am on 20 January 2020, the applicant was located on Wodonga-Yackandandah Road, Baranduda, sleeping in the front seat of a still-running white Mitsubishi Lancer bearing both Victorian and New South Wales number plates. Inside the car, police located a packet of prescription medication, Amoxicillin, in the name of Patricia Giampaolo, and a clear plastic tub containing approximately 20 ml of gamma-hydroxybutyrate (GHB). Three more number plates were located in the boot of the vehicle. Inquiries revealed that the Mitsubishi Lancer and all number plates found in and on the car had been reported stolen.

12 At the time of the alleged offending, the applicant was on bail for contravening the conditions of a community correction order ('CCO') and for charges in the informant McDonald matter and had purportedly been non-compliant with the residential and reporting conditions of the latter grant of bail on multiple occasions.

13 The applicant was arrested and remanded in custody. He gave a 'no comment' interview in relation to the alleged offending.

14 The applicant is a 36 year-old male. He has a history of substance use from the age of 15, which escalated following the death of his mother when he was 21 years old. At the age of 25, the relationship with his then partner broke down just months after the birth of his son, contributing further to his regression into substance use and involvement with the criminal justice system. While the applicant has sustained some periods of abstinence, these have typically been undermined by relapse due to life stressors. The applicant has a history of accommodation instability and was living intermittently with his former partner prior to his remand.

15 Since being in custody, the applicant has made good use of his time. He is fortunate to have a job working in the kitchen at the Melbourne Assessment Prison, a protected position in these difficult times, of which I will say more later.

16 The applicant has a criminal history dating back to 2005, commencing when he was 21 years old. The focus of his criminal history has seemingly been upon offences of dishonesty but his history also includes offences involving driving, property damage, violence, reckless conduct, drugs, weapons and firearms. In addition, the applicant's history is littered with multiple breaches of community based dispositions, suspended sentences and other court orders. He has a conviction for failing to answer bail in 2012 and convictions for contravening family violence intervention orders.

17 Section 1B of the Bail Act 1977 ('the Act') sets out the guiding principles of the Act and reads in part as follows:

(1) The Parliament recognises the importance of -

(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;

...

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

18 Section 4 of the Act makes plain the fact that there is generally to be a presumption in favour of the granting of bail. In a number of situation set out in the Act, however, that presumption is displaced by the requirement that the applicant establish the existence of either exceptional circumstances or a compelling reason that would justify a grant of bail.

19 Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless 'satisfied that exceptional circumstances exist that justify the grant of bail'.

20 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.

21 If satisfied of the existence of exceptional circumstances, the Court is required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

i. endanger the safety or welfare of any person; or

ii. commit an offence while on bail; or

iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or

iv. fail to surrender into custody in accordance with the conditions of bail.

22 The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court is required to take into account the surrounding circumstances pursuant to s 3AAA. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

23 The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[1] stated the relevant principles as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[2]

24 Further, in the recent matter of Re Brown,[3] Lasry J noted:

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• 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.
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[4]

25 Mr Rofe for the applicant relied on the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail:

i. Delay. In this regard, Mr Rofe relied on what he described as three subsets of delay. First, there was the present uncertainty introduced to the criminal justice system as a result of the COVID-19 pandemic. He noted what I said on the matter a short time ago in the case of Re Tong.[5] Mr Rofe submitted that it was likely that the contested hearing would not proceed until at least October or November 2020. Secondly, there was the fact that some parts of the prosecution brief are outstanding. Thirdly, there was the fact that the present nature of incarceration is onerous and oppressive, with the cessation of prison visits, the introduction of quarantine protocols, restrictions on movements within the prison, the reduction of time out of cells with the prospect of lockdowns, and other matters.

ii. The likely sentence to be passed should the applicant be found guilty. The applicant had already served 87 days in custody at the time of the hearing. Mr Rofe conceded that with his criminal history, the applicant would most likely receive a term of imprisonment, but submitted that the length of pre-sentence remand would likely exceed any sentence he is ordered to serve. When it eventually comes to the question of sentence, submitted Mr Rofe, while some of the purposes to be served by the sentence would likely be reflected in a term of incarceration, rehabilitation would remain an important consideration in the applicant's case.

iii. The strength/weakness of the prosecution case. Mr Rofe stopped short of asserting that the prosecution case was weak, but submitted that there were outstanding issues to be resolved, and that the strength of the case would be better able to be assessed when all materials have been served.

iv. The potential for rehabilitation. On this score, Mr Rofe pointed to periods during his criminal history in which the applicant has refrained from offending, and the fact that his criminality has been connected with his drug use. He has made some efforts to deal with that issue, and it is unsurprising that rehabilitation is not linear and is a 'rocky road'. He has demonstrated some insight into the factors that have led to his drug use, including emotional responses to grief and other events in his life. He has completed a number of courses while in custody and has engaged in worthwhile employment in the kitchen at the prison. He has been assessed as being suitable for supervision under the Court Integrated Services Program (CISP). Furthermore, he has the support of his family, his father and brother actually being present in Court to show that support. At the moment, the applicant knows there is much on the line, and his incentive to abide by bail conditions should be strong.

v. The availability of stringent bail conditions. Mr Rofe provided a list of ten conditions which he submitted would be such as to impose strict controls over the conduct of the applicant. A place of residence with a friend Christian Gaylard was put forward in place of two other possible options suggested in the affidavit material which had been considered to be unsuitable by the respondent.

26 Mr Rofe then relied on the same combination of matters in resisting the respondent's contention of an unacceptable risk in this case. In relation to the risk that the applicant may commit further offences if released on bail, he submitted that this risk can be reduced to an acceptable level through the imposition of appropriate conditions, including that the applicant complies with the directions of CISP. Further, Mr Rofe contended that the applicant has only once been convicted of failing to appear on bail. He submitted that the availability of accommodation and the support of family and CISP would mitigate his risk of failing to appear, and that he has a strong incentive to attend to test the prosecution case in the informant Westlake matter. Finally, Mr Rofe submitted that the acceptability of these risks must be considered in light of delays stemming from COVID-19 and the more burdensome conditions of remand the pandemic has produced.

27 The respondent opposed bail on the basis that the applicant has failed to demonstrate exceptional circumstances justifying the grant of bail, and in addition, is an unacceptable risk of:

(a) endangering the safety or welfare of any person;

(b) committing an offence while on bail; and

(c) failing to surrender into custody in accordance with the conditions of bail.

28 Mr Kibel submitted that the offending in this case, albeit that it is to be dealt with in the summary stream, is serious. It principally involved a series of indictable offences concerning allegations of theft of relatively high value motor vehicles.

29 In relation to the question of the strength of the prosecution case, that, along with other matters, was addressed in detail in the respondent's report exhibited to the affidavit in opposition. Mr Kibel took the Court through a number of aspects of the case, and submitted that overall, the case is a very strong one.

30 Mr Kibel conceded that while the alleged offending did not occur within the period of the applicant's most recent CCO, there are breach proceedings on foot relating to multiple failures to attend supervision appointments and complete community work under that CCO. Corrections Victoria seeks cancellation of the CCO and resentencing of the applicant on the related charges.

31 In respect of the last disposition received by the applicant, which was of 51 days imprisonment and a CCO, that was for a serious matter involving the applicant's possession of a sawn-off shotgun and ammunition. The sentence he received in the circumstances of his prior convictions reveals that the sentence had very much a rehabilitative focus. Although the applicant did attend some drug counselling as part of the CCO, the indications really are, from the CCO report, that he basically ignored the order.

32 Mr Kibel noted that the applicant was on bail for the McDonald matters at the time of the offending. In addition, whilst the CCO had reached its end by the time of the offending, breach proceedings had already been commenced. A warrant had been issued for the arrest of the applicant, and he had been bailed in respect of the proceedings. That bail was in place at the time of his offending. Also, he was subject to a summons for other offending.

33 Mr Kibel acknowledged, in respect of the favourable CISP report, that the CISP program is a valid and well respected one, but to be effective, it requires willingness to participate. The program to which the applicant was subject under the recent CCO was a much more structure one with the full backing of a court order. The applicant was afforded the opportunity to participate and benefit from the order, but failed to do so.

34 In respect of the time the applicant has already spent on remand, that is significant, and there would inevitably be a lengthier delay than usual due to the implications of the COVID-19 pandemic. However, given the serious nature of the offending and the previous sentences imposed upon the applicant, the period of time he would spend on remand if bail was refused would be unlikely to exceed the likely sentence.

35 As for the applicant's history on bail, he was on bail for the McDonald matters on 12 December 2019. The respondent Westlake attended at the premises where the applicant was required to reside the following week intending to speak to the applicant. He was not present, and had apparently only spent one night there up to that point, in breach of his conditions of bail. Furthermore, he had failed to report as required.

36 The respondent made the following submissions in relation to unacceptable risk in the report exhibited to the affidavit in opposition:

(a) Endangering the safety or welfare of any person. The respondent noted that the applicant has on several occasions been found behind the wheel of a vehicle while severely affected by illicit substances.

(b) Committing an offence while on bail. The respondent noted that the applicant is alleged to have committed indictable offences whilst on bail in both the informant McDonald and Jory matters and is alleged to have failed on multiple occasions to comply with reporting and residential conditions of bail in the informant McDonald matter.

(c) Failing to surrender into custody in accordance with the conditions of bail. The respondent pointed out that the applicant has a prior conviction for failing to answer bail and was located on 20 January 2020 close to the New South Wales border whilst subject to an undertaking of bail. The respondent holds concerns that on that date the applicant may have been attempting to abscond interstate.

37 I am required to have regard to the non-exhaustive list of matters set out in s 3AAA of the Act when I consider the question of whether exceptional circumstances have been established. The first matter on the list is the seriousness of the offending. On that score, I accept that in spite of the fact that this matter remains in the summary stream, the offending is none the less serious for the reasons advanced by Mr Kibel. This is especially so in light of the numerous prior convictions of the applicant for crimes of dishonesty. Mr Rofe submitted of his client that, 'Drugs are his problem. It's quite clearly the problem here'. That may be so, but it cannot be ignored that, on the evidence of his criminal record at least, the applicant also has a significant problem with dishonesty, and other forms of criminality. In light of his criminal history, his alleged offending in this instance has a serious enough look to it.

38 In terms of the strength of the prosecution case, it is hard to view it as being anything other than strong. For some of the offending, he was caught 'red handed', so to speak. For the Westlake matters, the circumstantial case pointing to his guilt has, at this stage at least, a compelling enough look to it.

39 Turning to the third consideration on the list, the criminal history of the applicant does him no favours at all where bail is concerned. That history shows his involvement in a wide range of offending over the years, especially concerning crimes of dishonesty. He has received numerous opportunities by courts to benefit from community based sentences, or other dispositions not involving immediate imprisonment. Some of these sentences have addressed the drug abuse which has been considered to be at the root of his offending. On almost every occasion, he has breached these dispositions and shown that any faith or confidence shown in him to turn his life around has not been justified.

40 A good example is to be seen in the most recent sentence the applicant received on 30 May 2018 for serious offences including being a prohibited person in possession of a firearm and handling stolen goods. In spite of his prior convictions, he was given a sentence which might be viewed as being quite lenient. The explanation no doubt is to be found in his drug use which must have assumed great importance in the mix. On top of the 51 days of imprisonment which was imposed, reflecting the period of pre-sentence detention, he was placed on a 12 month CCO with conditions clearly designed to foster his rehabilitation by attending to his drug and psychological problems.

41 The response by the applicant to this opportunity he was given so recently by a court was telling, as revealed in the breach report of his case manager Ms Denielle McKenna on 2 November 2019. Although the applicant did engage in treatment for his drug abuse, his level of compliance is summed up thus by the author in the report:

Mr Velluto is a 36-year-old male whom (sic) was afforded the opportunity to address his offending behaviours within the community.

As outlined in the above report, his engagement throughout the order is deemed unsatisfactory. He would often fail to attend appointments or have periods of disengagement. He absconded from contact with CCS after last attending an appointment on 5 December 2018. He failed to complete any unpaid community work hours...

42 The next matter on the list of considerations is the extent to which the applicant has complied with conditions of earlier grants of bail. As mentioned earlier, he has a prior conviction for failing to answer bail. In recent times, he has ignored conduct conditions of an undertaking of bail to which he was subject. He currently faces a number of charges of committing indictable offences whilst on bail.

43 A further matter of great significance in the resolution of this application is the fact that the applicant was actually on two grants of bail and subject to a summons at the time of his alleged offending.

44 All-in-all, it would not be unreasonable to conclude that the prospects of his actually being willing and able to comply with the sort of stringent conditions of bail proposed by Mr Rofe are quite bleak.

45 Turning to the personal circumstances of the applicant, he is fortunate to have the support of his father and other family members. Their support and encouragement may be an important factor in his being eventually able to muster the courage to do something positive about the personal demons which beset him, including his reliance upon illicit drugs.

46 On that score, the availability of the supports offered by CISP is a positive thing, but in reality, the central change which needs to occur before the applicant can turn his life around, something that is by no means a forlorn hope, is one to do with the his own attitude. He said to me during the application that he is 'over gaol' and never wants to 'live this lifestyle again'. It is to be hoped that that is the case, and that he will be able to devote himself to ensuring that that becomes the reality.

47 The delay to the resolution of the charges faced by the applicant, and the onerous circumstances under which he will spend that time should he not be granted bail, are significant matters for my consideration. These are unprecedented times in the lifetime of most people in our community. I repeat what I said in the case of Re Tong, to which I was referred by Mr Rofe during the application:

It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[6]

48 In respect of the relativity between the amount of time he is likely to spend on remand if bail is refused and the likely sentence he would receive, I do not consider that the remand period is likely to exceed the sentence likely to be passed. I do not rule out the possibility of a magistrate extending further leniency to the applicant, but in light of his prior criminal history, the failure of community-based dispositions to achieve the desired result, and the seriousness of his offending in this case, it may well be that a magistrate will see no option other than the imposition of a significant term of imprisonment to properly reflect the purposes of sentence in his case.

49 During the application there was a considerable focus placed on the importance of rehabilitation in his case. That is entirely understandable and appropriate. If and when he comes to be sentenced in respect of the current offending, no doubt, that purpose of sentence will assume prominence as it has in the past. The applicant is 36 years old and by no means beyond hope.

50 For now, however, where bail is being considered, it must be noted that if, during his recent period in custody, he has commenced upon the path to rehabilitation, he is only a very short distance along that path, with much still to achieve.

51 Having considered all of the circumstances of this case, I am not satisfied that exceptional circumstances exist that would justify a grant of bail in this case.

52 I can also say, for completeness, that even had I been satisfied of the existence of exceptional circumstances, I would have considered that there would have been an unacceptable risk, were he to be released on bail, that he would endanger the safety of the public, commit an offence on bail, or fail to answer his bail.

53 For the reasons stated above, the application for bail must be refused.

[1] [2004] VSC 17.

[2] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[3] [2019] VSC 751.

[4] Ibid [65]-[66] (citations omitted).

[5] [2020] VSC 141.