Applicant Charged with Contravention of FVIOs Applied for Bail

Re Kudric [2021] VSC 442 (28 July 2021)

The applicant with six charges of contravening a family violence and more filed an application for bail.  The Court, in determining whether the applicant should be granted bail, looked for exceptional circumstances as well as the absence of unacceptable risk. 

Facts:

On 16 April 2021, an interim FVIO was imposed against Jovan Kudric (‘the applicant') in the Shepparton Magistrates’ Court naming his former partner and her three children as affected family members.  In her application for the interim order, the AFM disclosed repeated incidents of verbal abuse perpetrated by the applicant against her, as well as an incident on 7 February 2021 when the applicant allegedly grabbed her by both arms, causing bruising after the breakdown of their relationship in early 2021.

The applicant seeks a grant of bail in this Court.  The applicant is charged by Constable Marko Mitic (‘the Mitic charges’) which includes recklessly causing injury, persistently contravening a family violence intervention order (‘FVIO’), and contravening a FVIO (four charges).  He was released on police bail with conditions including that he abide by the conditions of the FVIO.  He was then charged by First Constable Hayden Marsh (‘the Marsh charges’) which includes  intentionally damaging property, contravening a FVIO (two charges), committing an indictable offence whilst on bail, contravening a conduct condition of bail (two charges), and possessing a controlled weapon.  He was refused bail on the basis that he had failed to show exceptional circumstances justifying the grant of bail, and there was an unacceptable risk that he would commit an offence while on bail or endanger the safety and welfare of any person.  His grant of bail for the Mitic charges was also revoked.

Issues:

I. Whether or not the applicant failed to show exceptional circumstances justifying the grant of bail. 

II. Whether or not there was an unacceptable risk that he would commit an offence while on bail. 

Applicable law:

Bail Act 1977 (Vic) 3AAA(1) -  a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter

Bail Act 1977 (Vic) s 4E(1)(a) - provides that bail must be refused if the bail decision maker is satisfied that the unacceptable risk test is passed. 

Bail Act 1977 (Vic) s 5AAAA(2) - requires the Court to 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 bail conditions or the making of a FVIO.

Analysis:

The applicant has no criminal history and has not come to the attention of the police from 2014 until the alleged offences in this case.  It is submitted that he complied with the first grant of bail.  Assuming the applicant is found guilty of the offence, given the lack of physical violence directed towards the primary victim, it is by no means certain that he will be sentenced to a term of imprisonment. 

The respondent submitted that the applicant did not comply with the conditions of bail for the Mitic charges by continuing to remain in the Shepparton area, sleeping in his car.  The respondent contends further that while conceding that the applicant has no criminal history, the applicant has previously received a diversion for charges of unlawful assault, criminal damage and being drunk in a public place. 

However, as to the respondent's submission that the applicant's presents an unacceptable risk that he would commit an offence while on bail, the imposition of strong conditions on a grant of bail to the applicant can ameliorate the risk to an acceptable level. 

Conclusion:

The applicant is required to provide written verification by presenting to the Court ‘letters of attendance’ or letters demonstrating there are arrangements for attendances in place at the Men’s Referral Service, Life Supports, and a Mental Health Care Plan.  The Court ordered to grant the applicant's bail provided that during the bail period, the applicant will not enter the City of Shepparton and have no contact by any means whatsoever with the AFM or the three children.