Applicant Charged with False Imprisonment and More Applies for Bail
Re Gentile (No 2) [2021] VSC 781 (26 November 2021)
The applicant was charged with false imprisonment, persistent contravention of intervention order, contravene intervention order in several ways, threat to kill, threat to inflict serious injury, intentionally cause injury, commit an indictable offence whilst on bail and contravention of a conduct condition of bail.
The applicant argues new facts or circumstances to justify the grant of bail. The Court, in deciding whether to favor the applicant, determined whether there was an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail.
Facts:
Victoria Police received three reports of family violence perpetrated by the applicant against Ms Powell.
On 1 September 2018 Ms Powell, who was then 14 weeks pregnant, contacted police to report a five year history of family violence in her relationship with the applicant and which had escalated during her pregnancy.
Ms Powell indicated that the applicant had been both verbally and physically aggressive. On two occasions he punched her to the head and body to the point of unconsciousness. Since she had become pregnant he had made regular threats to kill her and burn her mother’s house down.
Neither during the hearing that preceded the previous bail decision nor during the hearing of this application did the applicant submit that these reports were untruthful or inaccurate. The applicant is currently the respondent to two full no-contact interim FVIOs. The first protects Ms Powell and IP and the second protects his sister. The application for bail is supported by an affidavit of the applicant’s solicitor, Adrian Dessi affirmed on 3 November, which addresses the statutory ‘surrounding circumstances’ of the application.
The first was the availability of the residential rehabilitation program at Habitat Therapeutics. Mr Tatlock, the Director of Habitat Therapeutics, said that the facility is very strict and forensic clients are held to a high level of behaviour.
The second matter of emphasis was the recalibration in the assessment of delay consequent upon the refusal of summary jurisdiction for the Metaxas-Belt matters. While a date for a plea hearing in the County Court will be attained earlier than a date for a trial, the applicant’s counsel maintained the submission that there is a ‘likely and real’ prospect that should the applicant not be admitted to bail, then he would remain in custody for a longer period than any sentence he may have to serve.
Ultimately the applicant submitted that the matters previously relied upon, in combination with the new additional matters, combine to demonstrate exceptional circumstances.
Issue:
I. Whether or not there is an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail.
II. Whether or not there are exceptional circumstances that exist justifying grant of bail.
Applicable law:
Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA - pursuant to such provisions the Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.
Bail Act 1977 s 18 - permits an accused who has been refused bail and is in custody pending the hearing or trial of a charge to make a further application for bail.
Bail Act 1977 s 18AA - requires such an accused to satisfy the court that new facts or circumstances have arisen since the refusal of bail before the court may hear the application.
Re Foxwell (No 2) [2014] VSC 145 - where the Court need not determine whether new facts or circumstances must be demonstrated before a further application for bail can be made in this Court given s 18AA(2) of the Act.
Re Gentile [2021] VSC 467 - relied upon when it was submitted that the applicant ‘needs to address his serious drug abuse and mental health issues via residential rehabilitation’.
Analysis:
The applicant told Mr Tatlock that he is ‘not violent’ and was only previously violent in the context of drug abuse. However, there is a connection between the applicant’s drug abuse and offending behaviour, the evidence of family violence is longstanding and cannot be explained simply by a drug binge in 2020 consequent upon the end of his relationship with Ms Powell and his loss of routine due to lack of work.
While rehabilitative work with respect to the applicant’s drug issues and ‘anger management’ is clearly warranted, there also needs to be considerable work done by and with the applicant as to his attitudes and assumptions about acceptable behaviour towards women (and its effect on his child).
In submissions prior to the previous bail decision, to which the respondent refers and relies upon, it was submitted that the applicant ‘needs to address his serious drug abuse and mental health issues via residential rehabilitation’. The applicant's acceptance into the Habitat Therapeutics program goes some way to addressing one of the core issues of his offending. However, the proposed 90 day rehabilitation at Habitat Therapeutics, which would be the applicant’s first time in rehabilitation, followed by residence at his grandmother’s house does not sufficiently mitigate the risk he poses in this regard.
Conclusion:
The Court concluded that the applicant’s productive use of his time in custody through ATLAS, his family and personal supports and the availability of stable accommodation and employment after completion of rehabilitation, unite to demonstrate exceptional circumstances. However, the Court is of the view that the applicant is an unacceptable risk of endangering the safety and welfare of Ms Powell and committing an offence whilst on bail. Hence, the application for bail should be refused.
