IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0269

IN THE MATTER of the Bail Act 1977		
		
and 		
		
IN THE MATTER of an Application for Bail by DAVID CHAMBERS 		

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JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 October 2020	
DATE OF JUDGMENT:	29 October 2020	
DATE OF REASONS	17 November 2020	
CASE MAY BE CITED AS:	Re Chambers	
MEDIUM NEUTRAL CITATION:	[2020] VSC 758	

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CRIMINAL LAW – Bail – 38 year old applicant with no prior convictions - Family violence offending against domestic partner – Reckless conduct endangering life arising from application of pressure to throat of complainant – Laryngeal fracture – Threat to kill – Contravening a family violence intervention order – Serious offending and reasonably strong prosecution case – First time in custody for applicant – Onerous conditions due to COVID-19 and mental state of applicant on remand due to withholding of prescription medication – Custody a particularly aversive and salutary experience in this case – Delay – Relationship now ended and situation in which offending arose no longer in existence – Availability of employment, stable accommodation, and drug support for applicant – Compelling reason established – Unacceptable risk not made out – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr L Richter	James Dowsley & Associates 	
			
For the Respondent 	Mr S Payne	Legal Services Department, Victoria Police 	

HIS HONOUR:
Introduction
1	The applicant applied for bail in respect of charges he faces for alleged offending against his partner. The charges are of:
•	Reckless conduct endangering life (two charges);
•	Aggravated assault of a female (six charges);
•	Contravening a family violence intervention order (‘FVIO’);
•	Recklessly causing injury; and
•	Making a threat to kill. 
2	Having heard the application, I granted bail to the applicant on strict conditions. I indicated that I would publish my reasons for the decision at a future time. These are those reasons.
Procedural history
3	The applicant was arrested and charged with these offences, and remanded in custody, on 15 October 2020. He remained in custody until the application before me. 
4	He made an unsuccessful application for bail at Frankston Magistrates’ Court on 16 October 2020. The learned magistrate considered that a compelling reason had been shown to exist, but refused bail on the basis of an unacceptable risk. 
5	At the time of the hearing of the application, the matters were next scheduled to come before the Frankston Magistrates’ Court for a further mention on 13 November 2020.
Preliminary issue as to applicable test
6	An issue arose as to the appropriate test applicable for a grant of bail in this case. It was the applicant’s position that the ‘compelling reason’ test applied because the applicant faces Schedule 2 charges. The respondent, on the other hand, submitted that the ‘exceptional circumstances’ test applied, because the applicant is accused of a Schedule 2 offence while on summons for another Schedule 2 offence. The charge upon which the applicant was subject to summons at the time of the current offending was a charge of contravening a family violence intervention order (‘FVIO’) concerning his former wife. The charge involved the applicant sending a text message to his former wife in which he requested to see their daughter and offered to take the family out to dinner. It is alleged that this message contravened the FVIO to which the applicant was subject because the applicant was attempting to meet with both affected family members and engaging in conversation unrelated to arrangements for the care of the child. The respondent submitted that this was a charge which came within the description contained in item 18 of Schedule 2 of the Bail Act 1977 (‘the Act’), and was therefore a Schedule 2 offence. This argument relied upon the contention of Mr Payne, for the respondent, that the alleged offence was one ‘in the course of committing which the accused is alleged to have used or threatened to use violence’ because the word ‘violence’ in that phrase should be considered to have the meaning attributed to that word in s 5 of the Family Violence Protection Act 2008. I did not accept that proposition, and therefore, the bail application proceeded on the basis that I was required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail. 
The material before me
7	The application was supported by two affidavits of Stacey Stanley from the office of James Dowsley & Associates and the exhibits to those affidavits, the written outline of Mr Richter, and the oral submissions by Mr Richter before me. The application for bail was opposed by the respondent, whose cause was supported by the affidavit in response by Peter Murphy of Victoria Police, the report and sworn evidence of S/C Brooke Sebek, the written outline of Mr Payne, and Mr Payne’s oral submissions before me. The written and oral submissions of Mr Richter and Mr Payne were of the uniformly high standard I have come to expect of each of them. 
The alleged offending
8	The applicant and the complainant, RH, commenced a domestic relationship around September 2019. They lived together at a residence in Hastings, which is leased by the applicant. The complainant is currently three months’ pregnant with the applicant’s child.
9	At the time of the alleged offending, the applicant was subject to a final 12-month FVIO issued on 20 May 2020, which named the complainant as the affected family member. The conditions of the order prohibited the applicant from, amongst other things, committing family violence against the complainant.
10	On 22 August 2020, the couple began arguing outside their residence. The applicant allegedly entered the house and locked the complainant outside in the rain. She banged on the door and shouted to be let inside. 
11	The applicant is alleged to have exited the house, grabbed the complainant by her hair and thrown her down onto concrete, before pinning her underneath him. As the complainant struggled to get out from under him, he used his hand to cover her mouth and nose, restricting her breathing. He told her, ‘if you promise to shut up, I will let go’, and eventually released her. The complainant gasped loudly for air and the applicant again covered her mouth and nose, preventing her from breathing. He did this a number of times over a period of several minutes.
12	As a result, the complainant lost consciousness for an unknown period, her vision was affected and she lost control of her bladder. The applicant eventually let go. When the complainant regained consciousness, she was unable to feel her hands and legs. The applicant had returned to the house. The complainant eventually stood up and complied with the applicant’s direction to go back inside.
13	A neighbour who overheard shouting from the residence called police and they attended a short time later. The complainant, on the applicant’s direction, hid from police and neither answered the door. The complainant took photographs of her alleged injuries following the incident.
14	On 13 October 2020, the couple were again at home. The applicant allegedly began yelling at the complainant after she refused to engage in sexual intercourse with him. The applicant left the residence for a short period.
15	On the applicant’s return, he allegedly told her to get out of ‘his room’, being their bedroom, and hit her in the mouth with his elbow. The complainant left briefly, then returned to the bedroom with a bowl of cereal. The applicant hit the cereal bowl out of the complainant’s hands and pinned her down onto the bed by her shoulders. The complainant, in an attempt to free herself, bit the applicant on the nose and chin. This caused the applicant to slap her across the right side of her face. He then grabbed her by the hair and threw her to the floor.
16	Once the complainant regained her feet, the applicant demanded she leave the house. As the applicant had taken her phone, the complainant asked him to call her an Uber or taxi, before sitting with him in the lounge room and asking for her phone to be returned.
17	The applicant is alleged to have then grabbed the complainant by the neck using a narrow grip with his right hand. He began strangling her, pinning her to the couch by the throat. He allegedly yelled,  ‘I’ll kill you, I’ll kill Jay’, referring to the complainant’s friend. He allegedly squeezed the complainant’s throat for approximately six seconds as she struggled against him, causing her vision to blur and she feared she would die. She again bit him on the nose. The applicant briefly squeezed her throat harder before letting her go and again throwing her to the ground by her hair. The complainant stated ‘if you want me to have a miscarriage, you will have to keep hitting me’, in response to which the applicant allegedly threatened to kill her and have his family ‘get her’. 
18	The complainant felt unable to leave as she did not have her phone but the applicant pushed her outside and refused to provide her phone. He stated that he was experiencing an asthma attack as a result of the stress she had caused him and returned to the lounge room. 
19	The complainant left the address and waited around the corner, having been told by the applicant that police had been called. Police attended and spoke with the complainant and the applicant. The applicant was arrested and released pending further enquiries. He was re-arrested on 15 October 2020, and participated in a police interview. He denied the incident on 22 August 2020, stating that the couple regularly had verbal arguments but he had never assaulted her. With respect to the events of 13 October 2020, he again denied assaulting the complainant, alleging that she had asked for a kiss and then bit him on the nose and chin. He stated that he had pushed the complainant backwards and they had both fallen from the couch. He was bleeding as a result. He stated that the complainant responded to his request that she leave the residence by throwing her bowl of cereal at him and leaving with his keys, before returning and accusing him of stealing her phone. 
20	The complainant was admitted to Monash Medical Centre the following day, 14 October 2020, and received treatment for a fractured larynx. She also sustained multiple bruises to her neck, arms and legs.  She has made two statements in relation to the present matter, on 13 and 20 October 2020, respectively.
Personal background
21	The applicant is 38 years old. He has a five-year-old daughter who lives with his former wife. That relationship broke down in the context of ongoing family violence and substance abuse issues on the part of the applicant. He is prohibited from contacting his former wife and child, except in limited circumstances, by virtue of a FVIO.
22	Prior to the applicant’s remand, he resided at 24 Michelle Drive in Hastings, which is a rental property. He also operates his own business, ‘Progressive Tree Services Pty Ltd’, which provides tree cutting and vegetation clearing services. That business has employed up to six employees. 
23	The applicant suffers from asthma, which is treated with Symbicort. In 2019 and 2020, he was diagnosed with depression and anxiety which is presently not treated with medication. 
24	He is also said to have substance abuse issues, being a heavy user of Gamma-hydroxybutyrate (‘GHB’), for which he sought support from the South Eastern Consortium of Alcohol and Drug Agencies (‘SECADA’) in July 2020. He participated in phone counselling and completed a withdrawal program in September 2020, prior to his remand.
Criminal history
25	The applicant has no criminal history. However, he has been the subject of a number of reports of family violence against his former wife, who alleges a history of ongoing abuse commencing in September 2015 and continuing until October 2019. While he has not been charged in respect of those reports, an investigation is ongoing. 
26	The present complainant made two prior reports of family violence against her on 15 and 20 May 2020, involving verbal abuse and physical intimidation. A Family Violence Safety Notice was issued as a result of the first report, but no criminal charges were pursued. 
27	As stated, the applicant is presently charged on summons with contravening the FVIO in place in respect of his former wife and daughter. A diversion has been approved in that matter, returning to the Frankston Magistrates’ Court on 25 November 2020. The only recommended condition of the diversion order is a donation of $50 to the Domestic Violence Resource Centre.
The law
28	Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty. 
29	Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
30	Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason. In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances, including, but not limited to, those prescribed in s 3AAA(1) of the Act. 
31	If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. 
32	In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
33	In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:
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.
The applicant’s submissions
34	Mr Richter relied on a combination of matters in proof of the existence of a compelling reason in justification of bail. Those matters were:
(a)	The lack of any criminal history. The applicant is 38 years old and has no prior convictions or findings of guilt. The only other matter before a court is the alleged family violence matter of such little gravity that the applicant had been offered diversion. Any other alleged breaches of FVIOs had not even resulted in criminal charges being laid to date, and should be accorded little weight. 
(b)	The lack of any adverse bail history. The applicant had never been subject to bail before. 
(c)	This was the applicant’s first time in custody. Custody, for him, has been an ‘obviously aversive and salutary experience’.
(d)	Delay. Enquiries with the Magistrates’ Court had indicated that no estimated hearing date could be provided, but it is probable, submitted Mr Richter,  that the applicant’s contested hearing will not take place until 12 months after he went into custody. Whilst conceding that imprisonment may result should the applicant be found guilty, Mr Richter submitted that it would not be a foregone conclusion. In any event, the time in custody on remand would be very likely to exceed the length of any sentence received. 
(e)	Onerous conditions in custody as a result of the implications of the COVID-19 pandemic. The applicant had been in quarantine isolation since going into custody. He suffers from anxiety and depression. Furthermore, since being in custody, he had been denied a prescription medication, Baclofen, prescribed as a result of his attendance at South Eastern Consortium of Alcohol and Drug Agencies (‘SECADA’). Seemingly as a result of that, he had spent his time in custody largely in an altered and confused mental state due to his withdrawal from that drug. This had made his time in custody all the more terrifying, confusing and confronting for him. All of this contributed to magnifying the aversive effect of his prison experience upon him. 
(f)	The applicant runs his own business, which would be likely to fail should he remain in custody. That would have the result, also, of the applicant losing his rental accommodation. Should he be released on bail, he would have stable employment and stable accommodation.
(g)	The availability of a deposit of $1500 by the applicant, and the possibility of a surety of $500 from his mother in Western Australia.
(h)	The case against the applicant is not strong. It depends largely on the word of the complainant, whose credit will be subject to attack. A number of earlier family violence incidents concerning the couple had the applicant as the AFM. As for the laryngeal injury of the complainant, this may be explainable by conduct falling substantially short of what is alleged. 
(i)	The availability of drug support for the applicant. It was a very significant matter, it was submitted, that the applicant self-referred himself for drug treatment through SECADA in July 2020. He clearly is in need of ongoing support which he was not receiving in custody but would be able to receive if granted bail. 
35	The above matters were also relied upon on the question of unacceptable risk. The three risks alleged should best be seen as the risk that the applicant may contact the complainant and harm her. Mr Richter pointed to the circumstances of the alleged offending, namely, the presence of the applicant and the complainant in an unhappy, domestic relationship marred by drug use. That relationship had now ended. The complainant had removed herself from the applicant’s house. Therefore, the particular circumstances in which the alleged offending, and for that matter, the earlier offending alleged against his ex-wife, occurred had now completely changed. A full non-contact FVIO was now in place, which should be distinguished from the lesser form of the order in place at the time of the alleged offending. Furthermore, as noted earlier, the unpleasant time the applicant had spent in custody would have a strongly aversive effect. The applicant would be very conscious of what would await him should he fail to abide by the conditions of bail. 
36	Mr Richter submitted that the imposition of strict conditions of bail, amongst which he proposed a requirement to abide by the terms of the current FVIO, a curfew, continued drug treatment, and a condition limiting the geographical movement of the applicant, could ensure that any risk posed would be controlled such that it would not be unacceptable. 
The respondent’s submissions
37	Mr Payne for the respondent disputed that the combination of matters relied upon by the applicant amounted to a compelling reason in justification of bail, and further submitted that even if a compelling reason was shown, there was an unacceptable risk that the applicant would endanger the public, reoffend, or interfere with a witness. 
38	Mr Payne’s written submissions proceeded through the various matters listed in s 3AAA(1) of the Act. 
39	Commencing with the nature and seriousness of the alleged offending, he submitted that the offending encompassed very serious examples of inherently serious offending. It involved the application of pressure to the neck to the extent that on the first occasion the complainant lost consciousness, and on the second occasion, sustained a fracture to the larynx, all while she was three months pregnant. The death of the complainant was potentially only moments away on two separate occasions. This occurred in the family violence context in breach of a FVIO. The fact of the offending being in breach of an FVIO in place to protect the complainant was a very significant matter. The applicant had demonstrated by his behaviour in the current case, and in connection with his previous partner, a propensity for failing to comply with FVIOs. In response to a query from me, Mr Payne submitted that the fact of the prosecution being in the summary stream did not detract from the seriousness of the allegations. 
40	In dealing with the strength of the case, Mr Payne noted that the applicant had not described the case as week. Mr Payne himself submitted that the case was a strong one. He emphasised the medical and other evidence in support of the account of the complainant. In particular, the laryngeal injury could not be explained by the account the applicant gave to the police.
41	Mr Payne made mention of the fact that the applicant is subject to two FVIOs, one involving his ex-wife, and one involving the complainant. 
42	It was noted that the complainant has stated that she is ‘scared that I am going to wind up dead one day as a result of what David might do to me’. 
43	In respect of s 3AAA(1)(k) and (l), Mr Payne submitted that in light of the seriousness of the offending, and the family violence context in which it occurred, it was inevitable that if the applicant was found guilty, he would receive a term of imprisonment. Furthermore, such term would be likely to be close to or in excess of the time spent on remand if bail was refused. 
44	Mr Payne acknowledged that the effects of the COVID-19 pandemic were required to be taken into account in a consideration of the surrounding circumstances at both steps of the bail test. There was no authority, however, for the proposition that those considerations would, of themselves, amount to exceptional circumstances, or render the risk posed by the applicant acceptable. Care should be taken not to allow the existence of the virus in the community to overwhelm other considerations and prevent a proper analysis of the surrounding circumstances. 
45	Mr Payne questioned the assertion that the applicant’s business was in jeopardy, and discounted the significance of the offer of a small surety in this case. As for the availability of the services of SECADA, these were in place at the time of the alleged offending
46	In conclusion, Mr Payne submitted that exceptional circumstances had not been made out. 
47	In respect of the question of risk, Mr Payne submitted that there would be an unacceptable risk of the applicant endangering the safety or welfare of any person, committing an offence while on bail, or interfering with a witness.
48	On this score, he pointed to the fact that published material had highlighted the concerns raised by allegations of strangling and making threats to kill in the context of family violence. He also made the point that the Court was required to specifically address the issue of family violence concerns pursuant to s 5AAAA of the Act. 
Analysis
49	I have of course had regard to all of the material relied upon by the respective parties in this application, bearing in mind that in the first step of the test for bail, the burden of proof is on the applicant, and that in the second step, the burden of proof is on the respondent. 
50	To my mind, the offending alleged here is very serious. I raised my concerns in that regard with Mr Richter at an early stage of the application. For a man in the context of an ongoing intimate relationship to have allegedly applied pressure to the neck of his pregnant partner not once but twice, the first time rendering her unconscious, and the second time fracturing her larynx, a potentially dangerous and fatal injury, was very concerning. 
51	Notwithstanding the submissions of Mr Richter as to the strength of the case, I considered that the case was of reasonable strength, in view of the objective evidence tending to confirm physical attacks upon the complainant. In particular, I considered the evidence as to laryngeal fracture detected the day after the final alleged attack upon the complainant to be quite telling. 
52	In many other respects, however, I considered the application for bail to rest on quite strong foundations. The applicant is 38 years old and has no prior convictions and no adverse bail history. He has had stable employment and accommodation, which were still available to him. The particular situation in which he allegedly engaged in offending had now ceased, and there was no real evidence to suggest that he would seek to find and further attack the complainant. He had had a quite traumatic period in custody for the reasons highlighted by Mr Richter. I accepted that this would amount to a very strong disincentive to him to seek to contact the complainant, or to do anything else in breach of any conditions of bail. He had taken it upon himself to seek treatment for his drug problem. Such treatment would be available to him should he be granted bail, and he was willing to take advantage of this. Were bail to be refused, the applicant would necessarily spend a significant time awaiting the hearing of the charges. For the foreseeable future, the circumstances of custody would be difficult. 
Conclusion
53	Having carefully considered all of the material, I was satisfied that a compelling reason that justified the grant of bail had been shown to exist. 
54	Going on to the second step in the bail process, I was not satisfied that the risk clearly posed by the applicant, which I considered was essentially that he would in some way contact and possibly again harm the complainant, was an unacceptable one. Very stringent conditions were proposed by Mr Richter and accepted by me as being sufficient to mitigate the risk posed by the applicant so that it was not an unacceptable risk. Those conditions included a curfew, a requirement to comply with the terms of the full FVIO now in place concerning the complainant, a prohibition on the possession or use of drugs backed up by a requirement to submit to testing for drug use at the request of the police, a requirement to undergo drug treatment, and a condition imposing a broad geographical exclusion to further protect the complainant.