Applicant Seeks Bail for 24 Charges

Re Kelly [2022] VSC 232 (12 May 2022)

The applicant was charged with contraventions of family violence intervention order, breaches of bail, driving whilst disqualified and other offences.  The applicant applied for bail on 24 charges laid by Detective Senior Constable Benjamin Ryan on 14 February 2022.  The Court, in determining whether or not bail should be granted, assessed whether the exceptional circumstances exist. 

Facts:

The applicant applied for bail on a 24 charges laid by Detective Senior Constable Benjamin Ryan on 14 February 2022 (‘Second Ryan matter’).  The charges involved contraventions of family violence intervention order, breaches of bail, driving whilst disqualified and other offences.  The applicant was charged by summons on 14 October 2020 with a number of offences allegedly committed on 15 August 2020 when he was intercepted by police driving in Wangaratta.  He was a disqualified driver at the time.

He provided an oral fluid sample which was found to be positive to methylamphetamine (‘MA’).  When asked his reasons for drug driving, the applicant said, ‘I don’t have one’. As for his reason for driving whilst disqualified, he stated that he had picked his car up from around the corner and was taking it home for repairs. The applicant’s vehicle was impounded for 30 days pursuant to the Road Safety Act provision. 

On 20 October 2020, the applicant was observed by police to exit his workplace in Benalla in a white Mazda utility.  He was intercepted driving north on the Hume Freeway at Winton.  He was found to have an open stubby of beer, which he admitted having been drinking while driving.  He underwent an oral fluid test which was positive to MA. He was disqualified at the time.  He was charged by summons with driving whilst disqualified, drug driving and other offences.

On 9 December 2020, the applicant was intercepted by police while driving in Wangaratta.  He underwent an oral fluid test which was positive to MA.  He was a disqualified driver at the time.  He was charged by summons on 5 May 2021.

On 4 June 2021, police executed a search warrant at the applicant’s home in Wangaratta.  They located 12 cannabis plants in a hydroponic set-up, some MA, and three imitation firearms.  They sought access to the applicant’s mobile phone, which he refused.  The applicant was charged with offences on 4 June 2021 and remanded in custody.  He was released on bail on 7 June 2021 with conditions including a curfew and that he not drive a motor vehicle.  These incidents were followed through by similar incidents. 

On 14 February 2022 at 11.50am, police observed the applicant driving his vehicle on Greta Road, Wangaratta.  They intercepted the vehicle and arrested the applicant for contravening a conduct condition of bail. Police searched the car and located a small quantity of MA in his wallet.  When the drugs were shown to the applicant, he stated, ‘I forgot that was in there’.  The applicant’s vehicle was impounded.

Issue:

Whether or not exceptional circumstances exist that justify the grant of bail.

Applicable law:

Bail Act 1977 s 4D - provides that a bail decision maker must apply the unacceptable risk test if—

        (a)     at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or

        (b)     at step 1 (section 4C) the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail for a person.

Bail Act 1977 s 4E - provides that a bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—

        (a)     there is a risk that the accused would, if released on bail—

              (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; and

        (b)     the risk is an unacceptable risk.

Bail Act 1977 s 5AAAA - provides that a bail decision maker considering the release on bail of an accused must make inquiries of the prosecutor as to whether there is in force—

        (a)     a family violence intervention order made against the accused; or

        (b)     a family violence safety notice issued against the accused; or

        (c)     a recognised DVO made against the accused.

DPP v Muhaidat [2004] VSC 17 (‘Muhaidat’) - provides that "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."

Re Sipser [2019] VSC 362 - provides that ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.

Re Brown [2019] VSC 751 (Lasry J) - where it is plain that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.

El Nasher v DPP [2020] VSCA 144 - provides that there are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. 

Analysis:

The applicant commenced using cannabis on a daily basis from 2016, and MA at least five days a week from about 2018.  The applicant reported to Ms Jackson that his drug use ceased in 2019 following the assault, although he has been found since that time to have MA in his system while driving and during the course of his community correction order (‘CCO’) in 2020.  The applicant’s criminal history commenced when he was dealt with by the Children’s Court for assault in company in 2000.  There were then two appearances in the Magistrates’ Court for assault and street offences in 2001.

After a long gap, the history resumed in January 2018.  The applicant was fined for assault, driving an unregistered motor vehicle and driving at a speed dangerous.  On 24 January 2020, he was convicted of driving whilst disqualified, persistent contravention of a FVIO, committing an indictable offence whilst on bail, handling stolen goods, and other offences.  He was placed on a 9 month CCO with conditions as to assessment and treatment for drug abuse and mental health issues.

He is 39 and his criminal history ‘commenced in earnest in 2018’, in the context of his life, to a large degree, having fallen apart following the assault upon him in.  In spite of his criminal history, he has never been imprisoned before.  The contraventions of the FVIO charged against the applicant are by no means at the more serious end of such offending, these are repeated and flagrant contraventions of conditions the applicant knew full well applied to him, and should not be disregarded, in circumstances where he had a number of prior convictions for intervention order contraventions, and had, within a matter of days before his alleged offending, been reminded of the need to comply with the FVIO and conditions of bail imposed on 8 February 2022. 

Conclusion:

The Court is unpersuaded that exceptional circumstances exist that justify the grant of bail.  The application for bail is refused.