IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0283

IN THE MATTER of the Bail Act 1977		
		
and  		
		
IN THE MATTER of an Application for Bail by RAMANAN RAJASEKAR		

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JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 November 2020	
DATE OF JUDGMENT:	18 November 2020	
CASE MAY BE CITED AS:	Re Rajasekar	
MEDIUM NEUTRAL CITATION:	[2020] VSC 774	

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CRIMINAL LAW – Bail – 37 year old man of Sri Lankan/Tamil origin with alcohol problem -  Some prior convictions including breaches of bail and community correction orders  - Arson endangering life – Applicant allegedly set fire to house after disagreement with co-tenants about money – Threats allegedly made in past to set fire to house – Specific threats attributed to applicant shortly before fire – Admission allegedly made afterwards – On community correction order at time of alleged offending - Seriousness of offending – Strength of prosecution case – Delay – COVID-19 considerations – Vulnerable state of applicant in custody – Availability of CISP support – Compelling reason not made out – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E. 

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr M Radzaj	Victoria Legal Aid	
			
For the Respondent	Ms H Baxter	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
Introduction
1	The applicant applies for bail on charges he faces of arson, arson endangering life, reckless conduct endangering life, and assault (common law). The offences were allegedly committed on 16 January 2020. The applicant was arrested, charged and remanded in custody on 18 January 2020. He has been in custody since that time, having brought three unsuccessful applications for bail in the Melbourne Magistrates’ Court, the first two of them unrepresented, and the last of them, on 19 October 2020, represented. On that final bail application, bail was refused by the learned Magistrate on the basis that a compelling reason had not been shown, and also because it was determined that the applicant posed an unacceptable risk. 
2	The charges are next listed for a contested committal on 3 and 4 February 2021. The likely trial date will be sometime in 2022.
3	It is agreed between the parties that bail must be refused in this case unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail. This is because the charges faced by the applicant come within Schedule 2 to the Bail Act 1977 (‘the Act’) because he is accused of an indictable offence, namely arson, during the period of a community correction order (‘CCO’) made for another indictable offence of intentionally damaging property. 
CCO to which the applicant was subject at the time of the current offending
4	On 22 December 2019, the applicant was convicted of charges of failing to answer bail, unlawful assault, criminal damage, resisting a police officer, refusing to accompany police for breath analysis, and unlicensed driving. On the first four charges, he was placed on a CCO for 12 months with a work requirement and a condition that he undergo assessment and treatment (including testing) for alcohol abuse and dependency.
5	The applicant failed to report to Dandenong Community Correctional Services as required within two working days of the order commencing. He attended without notice on 2 January 2020. An appointment was made for the applicant to attend for induction on 8 January 2020. He attended late and in an intoxicated state, so induction did not take place. A further appointment was made for 14 January 2020. Again, he attended under the influence of alcohol. He was breathalysed and returned a reading of 0.132%. Again induction did not go ahead. The applicant was subject to this CCO at the time of the current alleged offending. He was remanded on the current matters before his next appointment. 
6	In view of the applicant’s poor compliance with the CCO, and allegations of further offending in the present matter, breach proceedings were commenced, it being recommended in a report dated 31 January 2020 that the CCO be cancelled and that the applicant be re-sentenced on the original offending. On 19 February 2020, the applicant was charged with contravening the CCO.
The alleged offending
7	At the time of the alleged offending, the applicant was residing in a sharehouse in Keysborough with four others, being Ravi Subramanim, Vinayagan Thurasami, Krishnakumar Parasuraman and Ithayaraj Santhirasekaram. According to Mr  Subramanim, the applicant had made numerous previous threats to set fire to the house if he was made to leave.
8	On the evening of 15 January and into the early hours of 16 January 2020, the applicant was out with friends and consumed a significant amount of alcohol.
9	At 4.15 am, after arriving home, the applicant was in the kitchen with Mr Subramanim when Mr Subramanim requested payment for outstanding rent and bills.  This led to a verbal argument between the two, during the course of which it is alleged that the applicant said, ‘I don’t need to give money, I set fire to this place’; ‘Too much talking, I kill you’; and ‘Where are the lighters? Take your bills and I will set fire’. This argument was overheard, at least in part, by Mr Thurasami who subsequently left the house with Mr Subramanim.
10	Sometime afterwards, Mr Parasuraman, an asthmatic, awoke to the smell of smoke.  He exited his bedroom and observed the hallway and kitchen areas engulfed in flames. He called out in distress. After hearing Mr Parasuraman’s cries, Mr Santhirasekaram similarly exited his bedroom and observed a significant amount of smoke in the house as the fire spread rapidly. He then saw the applicant and Mr Parasuraman exiting the house via the front door and himself fled the house via the rear door.
11	Once outside, Mr Santhirasekaram went to the front of the house and asked the applicant about the fire.  It is alleged that the applicant responded, ‘I did, I burned the house’.
12	Members of the Country Fire Authority (‘CFA’) arrived sometime afterwards, at which time they observed a male running from the scene. This was captured on CCTV, with the male noted to be wearing a zip-up hooded jumper over a horizontally-striped shirt.
13	The CFA extinguished the fire and requested police attendance.  A crime scene was established.
14	At 10.35 am, arson chemists Rachel Noble and Nicole Bond attended the scene to conduct a forensic examination.  The seat of the fire was determined to be the kitchen, with the position of a gas bottle valve suggesting that it was open or partially open at the time of the fire. While the exact cause of the fire could not be determined, deliberate action could not be excluded.  Relevantly, it could not be excluded that the gas bottle valve was deliberately opened to agitate the fire.  
15	On 18 January 2020, the applicant was arrested by protective services officers at Noble Park Railway Station. He was wearing a grey zip-up hooded jumper over a horizontally-striped polo shirt.  
The law
16	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. 
17	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.
18	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. 
19	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. 
20	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
21	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.
Personal background
22	The applicant is a 37 year old man of Sri Lankan Tamil background with permanent Australian residency. He arrived in Australia by boat as a refugee in 2009 and spent six months detained on Christmas Island before being processed and moving to Melbourne. The applicant has no familial connections in Australia, with his parents and two younger siblings remaining living in Sri Lanka. The applicant evidently struggles with alcoholism and untreated mental health issues, against a background of largely undisclosed trauma related to his exposure to the civil war in Sri Lanka. The applicant has some employment history, including factory work and various labouring and gardening jobs, although was unemployed in the months leading up to the alleged offending.
Criminal history
23	The applicant has a criminal record commencing in 2014, which includes convictions and findings of guilt for numerous driving offences, as well as dishonesty offences, possessing a controlled weapon, unlawful assault, property damage and resisting police. It also records a contravention of a CCO in 2016, and two charges of failing to answer bail in 2019.
Applicant’s submissions
24	Mr Radzaj, for the applicant, relied upon a combination of matters detailed in his written and oral submissions in proof of a compelling reason and in resisting the respondent’s contention as to unacceptable risk. These were as follows:
(a)	The nature and seriousness of the alleged offending. For reasons outlined in the written submissions, it was asserted that this case of arson is not at the serious end of offending, lying more in the mid-range.
(b)	The strength of the prosecution case. Mr Radzaj submitted that there were discrepancies between the accounts of eye witnesses. No witness observed the applicant start the fire, and witnesses disagreed about whether he was present shortly after the fire or not. There was no evidence to suggest he deliberately opened the valve of the gas bottle referred to by the arson chemist, Ms Noble. Furthermore, a source of ignition could not be determined.
(c)	Delay. It is likely the applicant would spend 2 to 2 ½ years on remand awaiting trial. This means, submitted Mr Radzaj, that he may spend more time on remand than he would be ordered to serve as a sentence should he be found guilty. 
(d)	Onerous conditions in custody due to COVID-19. The circumstances of the applicant’s period of remand are more difficult as a result of measures taken within the prison system to prevent the introduction and spread of COVID-19. There are restrictions on personal visits, and on educational and other programs. There is uncertainty as to the length of time that these restrictions will remain. 
(e)	Vulnerability of the applicant. He is vulnerable in custody due to his poor mental health. He has been diagnosed with depression, anxiety, and post-traumatic stress disorder. The ways in which he is vulnerable interact and cumulate, submitted Mr Radzaj. His vulnerabilities and also the language barrier he faces make custody more onerous for him. 
(f)	Criminal history. The applicant does not have a lengthy criminal history. 
(g)	Availability of stable accommodation. The applicant has an offer of accommodation with a friend of his.
(h)	Availability of bail supports. The applicant has been recommended for Court Integrated Services Program assistance. A CROP report dated 10 November 2020 was relied upon in this regard. 
25	On the question of risk, Mr Radzaj submitted that the Court should have regard to the fact that in the two days following the fire and before his arrest, the applicant made no attempt to flee or interfere with witnesses. Nor was there an allegation that he had ever sought to interfere with prosecution witnesses, or ever offended whilst on bail. 
26	Furthermore, he has achieved abstinence from drinking for his time on remand, and is strongly motivated to maintain sobriety. 
27	He would have access to CISP support, and there is a plan in place. He would have stable accommodation. 
28	There would be bail conditions which could be imposed which would further mitigate risk. 
29	Taking all of the circumstances into account, the risk posed by the applicant could be mitigated so as not to be unacceptable. 
Respondent’s submissions
30	Ms Baxter, for the respondent, through her written and oral submissions, asserted that a compelling reason had not been shown, and in the alternative, that there was an unacceptable risk that if released on bail, the applicant would endanger the safety or welfare of any person, commit an offence while on bail, or interfere with witnesses. 
31	She submitted that contrary to the applicant’s submissions, the prosecution case is a very strong one. The statement of the arson chemist must be viewed in context. Shortly before the fire, the applicant was overheard saying that he would set fire to the place, and afterwards, he admitted that he had done so. The credibility of witnesses was a matter for later determination, but for now, the case should be seen as a strong one. 
32	In respect of the seriousness of the offending, Ms Baxter submitted that this is a serious instance of arson. The allegation is that the fire was deliberately lit while other occupants were in the premises. 
33	As for the delay, it is likely to be lengthy, but it must be remembered, submitted Ms Baxter, that the applicant is charged with offending which bears a maximum penalty of 15 years’ imprisonment. 
34	Ms Baxter conceded that the applicant has a limited criminal history, but noted that it does demonstrate a propensity to commit offences whilst intoxicated, and a tendency to do so whilst subject to court orders.
35	In respect of the asserted special vulnerability of the applicant, Ms Baxter pointed out that the report relied upon is quite dated, and concerned an assessment of the applicant upon his acceptance into custody. There was no updated report, and no explanation given as to why he should not be able to receive treatment in custody. 
36	Insofar as the CISP report noted the applicant’s mental health to be stable, it was submitted that that conflicted with the other report. In addition, it was submitted that the applicant’s apparent lack of insight into his mental health is a risk factor. 
37	As for the availability of bail services through CISP, Ms Baxter submitted that this would be insufficient to provide adequate support for the applicant in view of his entrenched alcohol problem. The Forensicare report indicates that the applicant is unwilling to open up about his problems, flags his risk of future treatment non-compliance, and notes the risk of relapse he also poses in view of his serious alcohol problem. Also, the report indicates he remains a risk of harm to himself and others. 
38	The CISP report suggests that the applicant continues to present with limited insight. Furthermore, future appointments with CISP would be by telephone only, with the applicant’s language difficulties providing an additional barrier to effective treatment and supervision. 
39	Finally, on the question of a compelling reason, although it is highly relevant also on the question of risk, Ms Baxter submitted that the applicant has demonstrated non-compliance with court-imposed orders. He has been made subject to CCOs twice, and both times, he has patently breached those orders. 
40	On the question of unacceptable risk, Ms Baxter set out a number of matters in her written submissions which she submitted should lead the Court to the view that the applicant poses an unacceptable risk if released on bail. 
Analysis
41	I should make it clear that the desirability as I saw it of this decision being announced in timely fashion means that it has been prepared without the possibility of resort to a transcript of the hearing. 
42	Two of the central planks of the submissions of Mr Radzaj for the applicant concerned the nature and seriousness of the alleged offending, and the strength of the prosecution case. On the first score, it was submitted that the arson charged was not a serious example of that crime, and on the second, that the prosecution case was not a strong one for a number of reasons. I feel moved to say at the outset that I cannot accept either of those submissions. 
43	The central crime alleged against the applicant is the deliberate setting fire to a home in which he knew others were present, late at night, committed through motives of anger and frustration following a disagreement about money. Other occupants of the premises needed to flee for their lives as the fire engulfed the house. Their safety was undoubtedly endangered. The house was largely destroyed, as I understand it, with the cost of the damage estimated to be $500,000. In his report, the informant, Senior Constable Munro, stated:
The offences for which the accused has been charged are significant and specifically endangered other persons. The offences show that the accused has shown a reckless disregard for the community and poses a real danger when intoxicated. That the accused has set fire to an occupied premises, knowing it to be occupied following a dispute over monies shows a lack of regard for the safety of those occupants. 
44	It seems to me that I must view the offending alleged as constituting a serious example of the crime of arson endangering life, an offence which is punishable by a maximum penalty of 15 years’ imprisonment. 
45	As for the strength of the case, acknowledging that this prosecution is still in its early days, and that it would be neither appropriate nor possible for me to assess the credit of the prosecution witnesses, as things stand now, the threatening and specific words attributed to the applicant shortly before the fire, the direct admission attributed to him after the fire, his flight from the scene, and his subsequent lie (on the prosecution case) as to where he was when the fire occurred, would all dictate that the prosecution case here cannot be sensibly viewed as being anything less than a strong one. 
46	The likely delay is an important matter to which I have had regard, but it seems to me that such delay is unlikely to exceed the period of the term of imprisonment that would be imposed should the applicant be found guilty. 
47	I take into account, also, the onerous nature of conditions on remand at the moment, and the likelihood that some aspects of those changed conditions will persist for some time to come. This is but one of the many matters to which I have had regard in considering the surrounding circumstances of this case. 
48	I accept that the applicant is in a vulnerable state. Indeed, it would be impossible not to have considerable sympathy for his plight. I am very concerned, however about the prospects of his being able to remain free of alcohol were he to be granted bail and were there to be a condition enforcing abstinence. Notwithstanding the fact that he has been alcohol free for ten months, I consider that the very limited life he would have should he be released on bail and the entrenched problem he has had with alcohol for many years would make it exceedingly difficult for him to remain abstinent. I am concerned that it would be simply setting him up to fail. And were he to do so, disaster might follow, in light of the apparent connection between his excessive alcohol consumption and his criminal offending. The nature of the offending alleged against him in this case, along with his criminal history, would suggest that were he to again surrender to the excessive consumption of alcohol, there would be a real risk of the community being endangered.
49	Another thing which makes it difficult to have confidence in the future conduct of the applicant is the fact that he has a criminal history indicative of an inclination to ignore the orders of courts, in connection with sentences passed upon him, or grants of bail made to him. To top it off, the current offending is alleged to have occurred little more than three weeks after he was made subject to a CCO, an order which in other ways, it seems, he saw fit to almost entirely ignore. He surely knew that the court imposing that order was extending another opportunity to him. He spurned that opportunity. It may well be that his reason for that should be viewed less as a complete unwillingness by the applicant to abide by a court order, and more as the product of the ravages of alcohol upon the life of a troubled man. Whatever is the true position, it would be very difficult to approach any grant of bail to the applicant with the necessarily degree of confidence that he would be likely to make a go of it.
50	Insofar as the support of CISP is held out as something which may, along with other things, be sufficient to ensure ongoing compliance with bail, unfortunately, the applicant has not shown himself in the past to be amenable to accepting help from those who would offer it. Furthermore, as things are at present, the assistance provided by CISP would, I expect, be limited to telephone contact, a poor substitute for the real face-to-face supervision which would have been available to him under his previous CCO.
51	Having considered all of the submissions made on behalf of the applicant, and contemplated the overall circumstances of this case, I am wholly unpersuaded that he has proven the existence of a compelling reason which would justify the grant of bail to him. On the contrary, sadly, I have no doubt that the appropriate course is for bail to be refused, and for the applicant to remain in custody pending the hearing of the serious charges he faces. 
52	For completeness, I can indicate that even had I been of a different view on the first step of the bail process, I would have readily concluded that the applicant would pose an unacceptable risk of endangering the safety of the community, committing an offence while on bail, or interfering with witnesses. For that reason, also, I would have refused bail. 
Conclusion
53	For the reasons I have stated, this application for bail must be refused.