Re Wills [2024] VSC 168 (9 April 2024)

2 On 26 February 2024, the applicant made an application for bail to the Frankston Magistrates' Court. The application was refused on the ground that the applicant had failed to show a compelling reason justifying his release on bail, and further on the ground that, if released, the applicant would be an unacceptable risk of endangering the safety or welfare of another person, and of interfering with a witness or otherwise obstructing the course of justice.

3 On 15 March 2024, the applicant made a further application for bail to the Frankston Magistrates' Court. The application was refused on the basis that he had not demonstrated the existence of any new facts or circumstances.

4 The applicant now applies to this Court for bail.

5 The charges against the applicant allege offending by him against AM,[1] with whom he had been in a relationship for a period of some nine months. During that period, they resided together at premises in [redacted]. The offences occurred on 16 January 2024. They constitute the first family violence incident between the applicant and AM.

6 The incidents which gave rise to the charges commenced late on 15 January 2024. At approximately 11:30 pm, AM and the applicant had a verbal argument, which escalated and became quite heated. In the course of the argument, the applicant took possession of AM's telephone, and threatened to call her parents to disclose to them that she was a sex worker. AM seized the telephone and called the police. The applicant then took possession of the telephone and alleged to the police that the complainant had assaulted him. AM then attempted to leave the premises. The applicant followed her outside, picked her up and carried her back inside. AM again left the address and waited outside for the police to arrive. The applicant followed her outside and called out to her, before returning inside. He then walked in and out of the premises.

7 When the police arrived, AM told them about what had occurred. She said that the applicant had thrown her to the ground, and that he was trying to kill himself all the time. The police spoke to the applicant, who admitted that he had followed AM outside and picked her up in a bear hug. He said that he was not thinking clearly. He agreed that he had been verbally abusive towards AM, and he said that he was a drug addict and was self-medicating. The applicant was arrested and conveyed to the Frankston Police Station.

8 The foregoing incident was the subject of one charge of false imprisonment, one charge of aggravated assault of a female, one charge of unlawful assault and one charge of common law assault.

9 After he was conveyed to the Frankston Police Station, the applicant, when interviewed, stated that he had been using Xanax and that he had been verbally abusive to AM. He again admitted that he had picked AM up and taken her inside when she had attempted to leave. He said that he had done so because he did not want AM to become emotional.

10 The police successfully applied for a Family Violence Safety Notice, which had exclusion conditions listing the address of the premises in [redacted] Frankston. The applicant was then released on summons. The police contacted AM and advised her that they had arranged that they would be attending shortly at the [redacted] address, while the applicant collected his personal possessions.

11 The applicant was collected from the Frankston Police Station at 4:43 am by his father, Ashleigh Wills. Shortly after leaving the police station, the applicant began raging and threatening to jump out of the moving vehicle. He threw documents out of the vehicle, and then opened the front passenger door and leapt from it, landing on the roadway. Mr Wills stopped the vehicle and went to assist the applicant. As he was picking up items off the roadway, the applicant ran past Mr Wills, entered the vehicle, and drove away.

12 The applicant drove south on Fletcher Road, reaching a top speed of 100kph (the speed limit being 60kph), turned into Cranbourne Road, along which he reached a top speed of 118kph (the speed limit again being 60kph), turned right into McMahons Road against a red traffic arrow, drove south along McMahons Road and crossed railway lines while the red lights were flashing at the crossing as the boom gates were still raising. He continued south as McMahons Road became the Frankston-Flinders Road, reaching a top speed of 112kph (the speed limit being 70kph). He then turned left into Heatherhill Road, driving on the wrong side of the road, reaching a top speed of 95kph (the speed limit being 50kph). The applicant then turned into [redacted] and pulled up outside the premises at which he had been residing with AM.

13 The conduct of the applicant, in driving the vehicle in that manner, is the subject of three charges, namely, entering an intersection against a red traffic arrow, entering a level crossing when devices operating indicated that the vehicle must stop, and driving at a dangerous speed.

14 Having arrived at the premises at [redacted], the applicant exited the vehicle, leaving the engine running. It was at this point that the second part of the incident between the applicant and AM took place.

15 The applicant made his way to the front door of the premises, smashed a window to the living area, and entered the home. That conduct is the subject of the charge of criminal damage. At the time, AM was in the bedroom. After she heard the glass breaking, she saw the applicant, who asked her for medical attention, because he had cut his arm breaking the window. AM screamed, and escaped through the front door. The applicant followed her, dragged her back to the vehicle and attempted to open the passenger side door. That conduct is the subject of a charge of false imprisonment. The applicant was unable to open the door to the vehicle. He then forced AM towards the home, placing her in a headlock, with his arm around her neck, while she was screaming for help. Once inside the premises, the applicant dragged AM around the home by her neck. He threw her to the ground and slapped her at least twice. In doing so, he was trying to remove her telephone from her possession.

16 That part of the incident is the subject of six charges, namely: reckless conduct endangering serious injury, contravene Family Violence Safety Notice (two charges), aggravated assault of a female, unlawful assault, and common law assault.

17 AM then managed to run outside. She was followed by the applicant, who entered his father's vehicle. The applicant drove the vehicle forward, performed a U-turn, and parked again outside the house. AM returned to the front door, and the applicant approached her. He then continued to physically assault her, in the course of which he seized her telephone and ran back to his father's vehicle. That part of the incident is the subject of a charge of theft.

18 AM then ran outside, following the applicant, and climbed onto the bonnet of the vehicle in order to try to stop the applicant from driving off with her telephone. The applicant drove over a distance of 130 metres, while AM was on the bonnet, before she was dislodged from it. He first accelerated for about 50 metres, then suddenly braked in an attempt to dislodge her. He then sped up, turned right around the roundabout on [redacted], accelerated north on [redacted], and swerved to the left and to the right in order to try to dislodge AM, who was then screaming. He accelerated past a large truck, and braked heavily, again unsuccessfully attempting to dislodge AM. The applicant then accelerated again, and veered to the right and to the left, finally dislodging AM, who fell into the gutter. As a consequence, AM suffered grazes to her torso and right arm, and lost half of a toenail.

19 The applicant's conduct, in driving the vehicle in that manner, was the subject of three charges, namely, reckless conduct endangering serious injury, recklessly causing injury, and driving in a manner that was dangerous.

20 After AM fell from the bonnet, the applicant stopped the vehicle and walked towards her. At the same time, a local resident exited her house and went to assist AM. The applicant then ran back to his vehicle and drove away from the scene. A short time later, police arrived at the scene. The police contacted AM's telephone, and the applicant answered it. He said that he was sorry, but AM had jumped on his vehicle and fallen off, and that she was around the corner, hurt, with a neighbour. The police then located AM.

21 At 7:50 am, the applicant was arrested at his sister's address in Frankston. He was conveyed to the Frankston Police Station, where he participated in an interview, in which he exercised his right not to answer questions. He was then remanded in custody.

22 The matter is due to return to the Frankston Magistrates' Court on 12 April next for a further mention.

23 The applicant is subject to two charges alleging offences that fall within Schedule 2 of the Bail Act 1977, namely, charges of contravening a Family Violence Safety Notice contrary to s 37A of the Family Violence Protection Act 2008, those contraventions having been preceded by the use or threat of violence, by the applicant, in the first part of the incident.[2] Accordingly, s 4AA(3) of the Bail Act 1977, requires that the applicant demonstrate a compelling reason that justifies the grant of bail. Section 4D and s 4E provide that if the court is satisfied of the existence of such a compelling reason, the prosecutor bears the onus of establishing the existence of an unacceptable risk as defined in s 4E(1)(a) of the Act.

24 In that respect, the applicant is currently subject to a Family Violence Intervention Order and a Family Violence Safety Notice. Accordingly, s 5AAAA requires that, in such a case, the Court must consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence, and whether that risk could be mitigated by the imposition of a condition or the making of a further Family Violence Intervention Order.

25 Section 3AAA and s 4C(3) of the Act provide that, in considering whether a compelling reason exists for a grant of bail, and s 4E(3) provides that, in determining whether there is a relevant unacceptable risk, the Court must take into account surrounding circumstances. They include (inter alia): the nature and seriousness of the offending; the strength of the prosecution case; the applicant's criminal history; whether there is in force a Family Violence Intervention Order or Family Violence Safety Notice issued or made against the applicant; the applicant's personal circumstances; the availability of treatment or bail support services; the length of time the applicant is likely to spend in custody if bail is refused; the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged; and whether, if the applicant were found guilty of the offences with which he is charged, and, if he were sentenced to a term of imprisonment, it is likely that the time the applicant would spend remanded in custody, if bail is refused, would exceed that term of imprisonment.

1. In Re Ceylan,[3] Beach JA defined the phrase 'compelling reason' as follows:

While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional. Such a requirement would place the bar at too high a level in a scheme where the exceptional circumstances test exists as the most onerous test under the Act. While the word "irresistible" was used with reference to "compelling reasons" in Plaintiff M64/2015, that was in the particular context of the statutory scheme then under consideration - a scheme which did not contain another test that was intended to be more onerous in different circumstances. While again one should guard against substituting the statutory language, in terms of resistibility, "compelling reason" in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.[4]

1. In Rodgers v The Queen,[5] the Court of Appeal endorsed that analysis by Beach JA and summarised it in the following terms:

There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:

(1) For an applicant for bail required 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.

(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.

(3) A compelling reason is one which is forceful and therefore convincing - a reason which is 'difficult to resist'.[6]

28 The applicant is 28 years of age. When he was of a young age, his parents separated, and he was raised by his father and his grandmother. He has three older siblings.

29 As a teenager, the applicant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Despite that diagnosis, he was apparently a good student at school. He left school half way through Year 10, and then successfully completed a carpentry apprenticeship. The applicant has worked as a carpenter for over ten years, and he has never been unemployed for any period exceeding three months. He has been self-employed since mid 2022.

30 The applicant commenced using cannabis at the age of 15 years, and subsequently he commenced to use methamphetamine at the age of 19 years. His use of the latter substance became quite regular by the age of 24 years. It appears that he had resorted to the consumption of illicit substances in order to self-medicate his ADHD. In addition, the applicant also occasionally used Gamma Hydroxybutyrate (GHB), cocaine and unprescribed Xanax.

31 The applicant does not have any previous convictions. However, he has been the subject of three Family Violence Reports, which, in turn, have resulted in two Family Violence Intervention Orders against him.

32 The first report was on 14 February 2022. On that date, Victoria Police received Family Violence Reports concerning the applicant. The complainant was the applicant's brother, Brett Wills. It was reported that the applicant had sent numerous threatening massages to his brother via social media, which included a threat to kill him.

33 Subsequently, on 18 February 2022, Victoria Police received two separate Family Violence Reports concerning the applicant.

34 The first report was made by the applicant's father that the applicant had made threats to bash the female partner of Brett Wills, and that he was, at that time, travelling in the direction of her address in order to do that. The Magistrates' Court granted an order against the applicant on 23 February 2022, which expired 12 months later. The applicant was also charged with two counts of threat to kill and use a carriage service to harass. Those matters were struck out by the Frankston Magistrates' Court on 5 September 2023.

35 The second report, on 18 February 2022, was by the applicant's stepmother, who informed police that the applicant had, in the past, intimidated her by standing over her and verbally abusing her. The Magistrates' Court granted a full interim order against the applicant on 10 May 2022, which was subsequently varied to a limited interim order on 17 March 2023. The order was finalised on 23 June 2023.

36 The applicant has previously engaged in Alcohol and Other Drug treatment programs. In April 2019, he attended Teen Challenge in Kyabram for a period of four months. Subsequently, in April 2022, he attended Shalom House, in the State of Western Australia, for a six week period. It appears that, although each of those programs achieved some temporary remission from the applicant's addiction, he subsequently relapsed. When he was assessed for the CISP (Court Integrated Services Program) in respect of the present case, the applicant told Ms Devlin, the assessment and referral practitioner who interviewed him, that he had been abstinent for a period of one month preceding the offending, but he had relapsed on the day of the offending.

37 In addition, the applicant attended Mr Phillip Milligan, a clinical psychologist, for a program of ten sessions between July and November 2021. In his report, Mr Milligan noted that the applicant originally presented with significant concern over his addiction to methamphetamine and also cannabis. Mr Milligan noted that the applicant also possibly had been suffering from ADHD and that he had been using methamphetamine in an endeavour to improve his capacity to concentrate. The treatment that Mr Milligan afforded the applicant was by way of 'motivational interviewing; solution focused therapy; CBT'. Mr Milligan considered that the applicant had gained an understanding of his problem, but that daily self-organisation continued to be difficult for him because the problem had been so protracted. The applicant then had a strong motivation to improve, and Mr Milligan considered that he required further counselling sessions to assist with his mental health problem.

38 In that context, the applicant's father provided a reference originally to the Magistrates' Court, which was part of the material relied on in this application. In the reference, Mr Wills noted that in the period leading to the incidents that are the subject of the charge, the applicant had twice previously attempted to commit suicide.

39 The first attempt was on 28 December 2023. On that date, the applicant had contacted Mr Wills in a distressed state. When Mr Wills arrived at the applicant's premises, he found the applicant unconscious in a vehicle with the engine running and the garage doors closed. The applicant was conveyed to Frankston Hospital and released later on that day.

40 The second attempt occurred only two days before the incidents, which are the subject of the current charges against the applicant. On that date (Sunday, 14 January 2024), the applicant was apparently preparing to hang himself when a friend visited him unannounced and was able to prevent the applicant from proceeding with that plan. On that occasion, the applicant informed Mr Wills that he wanted to return to rehabilitation at Teen Challenge. On the following day (15 January 2024), the applicant contacted Teen Challenge and was informed that he could have a bed available to him in about two weeks' time, if he could obtain Centrelink benefits for the treatment.

41 The applicant's mother, Michelle Wills, has sworn an affidavit in support of the application for bail, and she also gave evidence on the hearing of the application. In the affidavit, Michelle Wills noted that the applicant has strong relations with all his family, and they are aware of his current circumstances. His family continue to remain supportive of him. If the applicant is released on bail, Ms Wills and her partner, Robert Ennis, would assist him to obtain suitable employment in agricultural work or carpentry. The applicant would reside at her address in [redacted]. He would not have access to a motor vehicle, as she would lock the keys to her vehicle and Robert Ennis's vehicle in a safe when they are not being used. Ms Wills also stated that the applicant has informed her that he has no intention of reconciling with AM.

42 In evidence, Ms Wills described the circumstances in which the applicant would reside with her in [redacted], if he were released on bail. She explained that Robert Ennis works long hours in his business as a fitter and turner, and, accordingly, his vehicle would not be available to the applicant. She confirmed that if she is not using her vehicle, she would keep the keys to it locked in a safe. Ms Wills, herself, is in remission from a bout of treatment for cancer. She is not working and stays at home. In her evidence, she said that if the applicant were released on bail, and if he breached any of the conditions of the bail, she would immediately report that matter to the informant. In cross-examination, Ms Wills confirmed that, notwithstanding her medical condition, she would be able to drive the applicant to and from any appointment that he would have with the CISP case manager in Frankston. She also said that the applicant has previously lived with her, and she has a good understanding of how to cope with his changes of temperament, which are caused by his ADHD condition.

43 Since his arrest, the applicant has been held at Marngoneet Corrections Centre. During his time on remand, he has attended personal development courses, which include: identification of values, priorities and strengths; behaviours, stress and negative self-talk; goal setting; and mindfulness and positively engaging with the community. He has also gained qualifications in Cleaning Operations. In addition, the applicant has engaged in, and completed, the prison-based program in Healthy and Respectful Relationships, and he has completed three of the ten Peace Program modules. The report of Ms Devlin notes that the applicant has been able to maintain abstinence from all substances while in custody, and that the applicant is highly motivated to undertake alcohol and other drug counselling and treatment. While the applicant has been in custody, he has recently engaged in telephone sessions with a psychologist, Mr Paul Grech. If he is granted CISP bail, the applicant would be assisted to re-engage with Mr Grech.

44 The applicant was assessed by Dr Aaron Cunningham, a psychologist, on 28 March. Dr Cunningham concluded that the results of the mental state assessment, conducted by him, were not consistent with the presence of any mental illness. The applicant reported some childhood disadvantage, arising from the absence of his mother during that period of his life. As a consequence, he has continued to experience feelings of abandonment by her. Dr Cunningham noted that, although the applicant has a longstanding condition of ADHD, nevertheless, he has been able to maintain stable employment. Dr Cunningham also noted that the applicant has resorted to regular use of methylamphetamine and other substances as a form of self-medication for his ADHD.

45 In conclusion, Dr Cunningham considered that if the applicant is granted bail, he would benefit from returning to the stability of employment and accommodation with his mother. He would also benefit from drug and alcohol counselling to address his methylamphetamine abuse, and from psychiatric review of his need to resort to stimulant-based medication. If he is able to remain abstinent from drug abuse, and stability in his employment and accommodation, his prospects of rehabilitation would improve.

46 Ms Devlin has prepared three CISP reports. Ms Devlin recommends the following program be implemented if the applicant should be granted bail:

(1) The applicant reside with his mother at her home in [redacted], which is approximately two and a half hours' drive from Frankston where AM resides.

(2) The applicant should attend a further assessment with an accredited worker in relation to his substance abuse and/or alcohol issues.

(3) The applicant should attend a general practitioner mental health review. If the applicant is granted bail, he would be assisted by CISP to arrange an appointment with a local practitioner of his choosing.

(4) The applicant would be encouraged to contact Men's Referral Service to arrange an intake assessment appointment.

(5) The applicant would have a first appointment with a designated CISP case manager.

47 Ms Devlin gave evidence on the hearing of the bail application, which was primarily directed to clarifying how it was intended that the proposed program would be implemented. Ms Devlin explained that, if the applicant were granted bail, an initial assessment of his substance abuse would be undertaken by the Australian Community Support Organisation (ACSO). That assessment may not be available for a period of seven to ten days. After the assessment is undertaken, the applicant would then be referred to the services most convenient and available to him for treatment.

48 Secondly, it would be proposed that CISP would arrange an appointment for the applicant to attend a psychiatrist, in order to have an assessment and, if appropriate, a prescription for medication in respect of his ADHD. Thirdly, CISP would direct the applicant to a general practitioner of his own choosing, for the preparation of a mental health treatment plan which, it is anticipated, would involve the applicant being referred for ongoing sessions with a psychologist. Fourthly, Ms Devlin explained that the applicant would also be assisted to make an appointment with the Men's Referral Service.

49 In cross-examination, Ms Devlin confirmed that, if the applicant were referred to ACSO, there may be a delay of some seven to ten days before an appointment would be available for him. Depending on the assessment by ACSO, there may be further delay before the applicant is able to access appropriate treatment by a service provider to address his substance abuse issues. Ms Devlin did confirm that there are drug treatment services available in the area in which it is proposed that the applicant would reside if released on bail. She also explained that, after the completion of a mental health treatment plan, it would be necessary that the applicant have an appointment with an appropriate service provider, and that there may be some period of delay in arranging such an appointment.

50 As I have noted, the charges against the applicant are due to return to Frankston Magistrates' Court on 12 April next for a further mention.

51 On the hearing of the application, the informant, Detective Acting Sergeant John Cluning, gave evidence as to the status of the charges. The proceeding has not yet been listed for a summary case conference. The complainant has still not provided a statement to police. In a recent conversation with the informant, she said at that point that she did not want to make a statement, that she has thought about the matter a lot, and that she wants to move on with her life. She also said that she did not think that the applicant would breach bail conditions, because he has found gaol to be an unpleasant experience.

52 Acting Sergeant Cluning further confirmed that, at present, no statement has been provided by any witness, other than Ashleigh Wills. His statement is of short compass, identifying CCTV footage and vehicle footage from his motor vehicle, and also confirming that, when he got out of his vehicle to assist the applicant to pick up papers, the applicant drove off without him. Acting Sergeant Cluning also confirmed that as yet, a summary case conference has not been held, and that it will not proceed until the complainant has determined whether or not she will make a statement to the police.

53 In support of the application, counsel for the applicant submitted that there are compelling reasons for granting the applicant bail. In particular, it was submitted that the compelling reasons are constituted by a combination of a number of considerations, including the following:

(1) The applicant's lack of previous criminal history.

(3) The proposal that the applicant will reside at an address, which is a significant distance from that of AM.

(4) The availability to the applicant of support services, including the CISP program.

(5) The potential for delay in resolution of the charges. In that respect, counsel noted that the progress of the case has stalled, pending the attempts by the prosecution to obtain the statement from AM. In those circumstances, there may be a delay of several months before the matter is able to proceed to a hearing. It was submitted that, in view of the applicant's background and lack of any criminal record, it is probable that he would ultimately receive a sentence that is directed to his rehabilitation.

(6) The applicant, if released, would have good prospects of employment as a carpenter.

(7) The applicant, while in custody, has completed a number of programs directed to his rehabilitation.

54 Further, it was submitted that if the applicant were released on bail, there would not be an unacceptable risk that he would endanger the safety and welfare of another person, and, in particular, AM. Counsel noted that the previous allegations, that the applicant had threatened the partner of his brother, were not proven, and the charges were ultimately struck out. Further, the applicant has not breached either of the Family Violence Intervention Orders that have previously been made against him. Counsel contended that, if the applicant were released on bail, appropriate conditions could be imposed. Those conditions would include: residing in [redacted] with his mother; the imposition of a curfew; the applicant not drive a motor vehicle or attend Frankston unless for legal or other associated appointments; and the applicant abstain from the consumption of any alcohol or drug of dependence and submit to weekly testing for the first two months of his bail.

55 On behalf of the respondent, it was submitted that the circumstances relied on by the applicant do not constitute a compelling reason that justifies the grant of bail to the applicant.

56 It was further submitted that, if the applicant has established such a compelling reason, there would be an unacceptable risk, first, of the applicant endangering the safety or welfare of another person, and, secondly, of him interfering with a witness or otherwise obstructing the course of justice.

57 In support of that submission, counsel noted that the applicant is currently subject to two Family Violence Intervention Orders, one of which relates to his stepmother. In that respect, it was submitted that the conduct, displayed by the applicant towards his family members on previous occasions, demonstrates that he has a dangerous tendency to act impulsively and in a threatening manner to those who care about him. Further, the most recent intervention order relates to the complainant, AM. Although the applicant was served with a Family Violence Safety Notice, he almost immediately breached the conditions of the Notice and engaged in reckless behaviour, forcing his way into the prohibited address, assaulting AM, taking her telephone from her, and then engaging in dangerous driving, while the complainant was holding onto the bonnet of the vehicle.

58 By reference to the surrounding circumstances prescribed in s 3AAA, the respondent noted that the applicant's offending was serious. Although AM has yet to make a formal statement to police, it was submitted that there is, nevertheless, sufficient evidence, by way of audio and CCTV footage, to prove a significant portion of the charges. It was further noted that, while the applicant does enjoy the support of his family, nevertheless, that support has not prevented him from engaging in the manner alleged in this case. Although the applicant has been diagnosed with ADHD, he has not made sufficient or sustained attempts to treat that condition, but, instead, he has resorted to self-medication by using illicit substances including methamphetamine.

59 The respondent submitted that the proposed plan by CISP is not sufficient to allay the risk of the applicant endangering the welfare of family members. In particular, the plan does not outline when the assessment in relation to substance abuse will be conducted. It was submitted, in that respect, that that assessment should occur while the applicant is in custody, and a thorough proposed treatment regime provided to the Court. It was further noted that, while the proposed plan by CISP refers to the attendance of the applicant at a general practitioner of his choosing, again, nothing has been put in place to ensure that he receive appropriate mental health treatment. Further, it was submitted, the development of any mental health plan would involve some delay, during which the applicant would have no professional mental health support. Finally, the respondent noted that the first proposed meeting with CISP is to occur in Frankston, which is where AM is located, and where, presumably, the applicant has been sourcing illicit substances to support his drug addiction.

60 The respondent further submitted that it is unlikely that the applicant's mother, or any other member of his family, would be able to restrain the applicant from further re-offending if he sought to do so. In particular, it was noted that in the offending that is the subject of the charges, the applicant found a way to get away from his father, and to drive back to the premises in [redacted] Frankston, where he committed the principal offences against AM.

61 Taking those matters into account, it was submitted, therefore, that, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the welfare of AM and other family members, and interfere with a witness or otherwise obstruct the course of justice.

62 The first question is whether the applicant has established the requisite compelling reasons for the grant of bail to him.

63 In that respect, there are a number of relevant considerations, which support a conclusion that such reasons have been demonstrated to exist in the present case.

64 First, the applicant is 28 years of age. He has no previous criminal convictions. Notwithstanding his somewhat disturbed childhood, and his ADHD, he has successfully completed an apprenticeship in carpentry, and has subsequently been regularly engaged in gainful employment. Since 2022, he has been self-employed in that capacity.

65 If the applicant were released on bail, he would have available appropriate family support to assist him to comply with the terms of the bail. His mother, Ms Wills, was an impressive witness. She is clearly dedicated to ensuring that the applicant have every opportunity to abide by his bail conditions. Ms Wills also appears to demonstrate a good understanding of the difficulties that the applicant has experienced arising from a combination of his ADHD and his substance abuse.

66 In that respect, it is also relevant that the applicant will have available appropriate support services, supervised by the CISP program. It is unfortunate that a program has not yet been developed, which would ensure that if the applicant were granted bail, he would, without delay, have available to him the treatment, which he requires, in order to address both is ADHD and his substance abuse issues. Nevertheless, the evidence of Ms Devlin demonstrates that the issues confronting the applicant are familiar to the CISP case managers, and that the requisite support services would, in due course, be available to him.

67 An important, if not the most significant, consideration in this respect is the potential delay in the resolution of the charges against the applicant. At present, only Ashleigh Wills has made a statement to police. Most significantly, AM has not indicated any willingness to cooperate with the prosecution in that respect. It is understandable why AM may be reticent to do so, for a number of reasons. Nevertheless, the evidence given on the application by Acting Sergeant Cluning makes it clear that it is quite uncertain as to if, and when, AM would be prepared to make a statement to the prosecution and to give evidence in accordance with that statement in court. As a consequence, the present criminal proceedings against the applicant are, to all intents and purposes, in a state of limbo.

68 The applicant has already spent some twelve weeks on remand. If he were to plead guilty to the charges against him in the near future, nevertheless, it would be anticipated there would be some delay in the hearing of the plea and passing of sentence in relation to them. It is not possible to postulate the likely sentence that would be passed on the applicant, if he were to plead guilty to, or be convicted of, the charges against him. However, for present purposes, it is sufficient to conclude that there is a realistic possibility, if not probability, that if the applicant were not granted bail, he may well spend a significant period of time on remand, which would exceed the term of any custodial sentence imposed on him.

69 Further, it is relevant that the applicant, while in custody, has been able to abstain from the abuse of illicit substances, and he has completed a number of programs that have been directed to his rehabilitation. The applicant's time in custody has not been without its difficulties, particularly in view of his ADHD. Nevertheless, the fact that he has been able to use his time in custody constructively and positively does add to the potential for the programs, to be organised by CISP, to succeed.

70 Taking the foregoing matters into account, I am persuaded that the combined effect of them is that there are compelling reasons for the applicant's release on bail, in the sense that those reasons are forceful and convincing.

71 The critical issue is whether, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of another person, and, in particular, AM or any other member of his family.

72 The resolution of that issue is by no means clear cut. Certainly, the applicant does not have any previous convictions. However, the conduct that is alleged against him in the present case was, in essence, quite serious. In particular, his conduct, in driving his motor vehicle in an erratic fashion for more than 100 metres, while AM was clinging to the bonnet of it, is a matter of particular concern. The applicant's behaviour, as alleged by the prosecution, was quite erratic and unrestrained at the time.

73 In addition, the applicant has a longstanding problem with his addiction to methylamphetamine. Although he does not have any previous convictions, there have been a number of incidents that involved the applicant threatening or intimidating members of his family while apparently affected by illicit substances. The fact that he attempted to commit suicide twice in the short period preceding the incidents that gave rise to the present charges is a further indication of the propensity of the applicant to behave in an irresponsible and erratic manner when affected by drugs.

74 Each of those matters are of particular concern. On the other hand, as I have noted, the applicant has taken advantage of his time in custody, in order to undertake a number of constructive programs, as well as to abstain from the use of methylamphetamine. The CISP program is well-established and, in the present case, would assist the applicant to obtain appropriate treatment both for his substance abuse issues and for his ADHD. In addition, the family support that is available to the applicant would nevertheless provide an additional measure of security against the applicant engaging in the kind of conduct which gave rise to the current charges against him.

75 The proposal that the applicant reside at an address, which is more than two hours' drive from Frankston, and a condition on bail that the applicant only attend the Frankston area for the purposes of treatment, and in the company of his mother or another adult, would provide further assurance against the applicant re-offending. In addition, the fact that the applicant, if released, would have available to him a trade, in which he has already established himself, would provide an extra layer of assurance.

76 It must be acknowledged that, notwithstanding those considerations, if the applicant were released on bail, there would be a risk that he might again engage in the kind of conduct, which is the subject of the current charges against him. However, in the circumstances, I am not persuaded that that risk is unacceptable.

77 In reaching that conclusion, I have taken into account the 'surrounding circumstances' prescribed by s 3AAA of the Bail Act.[7] At the risk of repetition, they include that the applicant has no previous convictions, he has good family support, he has appropriate treatment available to him, and there is a reasonable possibility, if not likelihood, that if the applicant were not released on bail, the time that he would spend remanded in custody would exceed any term of imprisonment that may be imposed upon him, particularly taking into account the potential delay in the resolution of the charges against the applicant. Further, in that respect, it is relevant that appropriate conditions may be imposed on the applicant, which would further offset the degree of risk of the applicant engaging in such conduct, were he to be released on bail.

78 Accordingly, I have concluded that the applicant should be granted bail, on appropriate conditions, which would include the following:

(1) The applicant attend Frankston Magistrates' Court on 12 April 2024 at 9:30 am and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

(3) The applicant remain at the premises at [redacted] between the hours of 9:00 pm and 6:00 am.

(4) The applicant present at the front door of the residence at [redacted] during curfew hours if called upon by a member of Victoria Police to do so.

(5) Within 24 hours of his release on bail, the applicant contact the Court Integrated Services Program (CISP) Case Manager, Ms Nicci Reid, at Frankston CISP office, Frankston Magistrates' Court, 15 Fletcher Road, Frankston, and thereafter comply with all lawful directions of any officer of CISP and attend all appointments as directed by CISP.

(a) contact or attempt to contact AM by any means;

(b) approach or remain within 10 metres of AM.

(7) The applicant abide by all conditions of the Family Violence Safety Notice served on him and dated 16 January 2024.

(8) The applicant not attend within 10 kilometres of the township of Frankston, except for the purposes of attending a meeting with the CISP Case Manager or attending any service provider to which he is directed by the CISP Case Manager or for the purposes of any appointment with his solicitor, and, in such a case, the applicant be accompanied by his mother, Michelle Wills.

(9) The applicant not drive any motor vehicle or motorcycle.

(10) The applicant not consume any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.

(11) The applicant is not to leave the State of Victoria.

(12) The applicant is not to attend any points of international departure.

(13) The applicant is to report to the Officer in Charge at the Sale Police Station every Monday and Friday between the hours of 9:00 am and 6:00 pm.

79 In her evidence, Ms Devlin suggested that I might direct that if the CISP case manager becomes aware of any breach by the applicant of any of the conditions of bail, the case manager must forthwith report such breach to the Informant, Detective Acting Sergeant John Cluning. As CISP is not a party to this application, I doubt whether I may make such a direction. Nevertheless, I would expect the CISP case manager would promptly advise the Informant if the applicant does in any respect fail to adhere to the conditions of bail I have set out above.

[2] See Bail Act 1977 Schedule 2 cl 18 (b).

[3] [2018] VSC 361.

[5] [2019] VSCA 214.

[6] Ibid [43] (Beach, Kaye and Ashley JJA).