IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0092
IN THE MATTER of applications for bail and variation of bail		
		
Between:		
		
KANE TURNER (aka JUSTIN WILLIAMS)	Applicant	
		
-and-		
		
LEADING SENIOR CONSTABLE KEITH LILL	Respondent	

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JUDGE:	Croucher J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4 May 2021	
DATE OF ORDERS:	4 May 2021	
DATE OF PUBLICATION OF REASONS:	14 May 2021	
CASE MAY BE CITED AS:	Turner v Lill (No 2)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 255	
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CRIMINAL LAW — Applications for bail and to vary existing bail — Applicant bailed on dishonesty charges to Odyssey House (“OH”) in December 2020 — Three months later, applicant told police he was leaving for new address — Police advised must be approved first — Applicant left before address approved but later handed himself in to police — Charged with breaching conduct condition of bail by leaving OH — Denied bail in Magistrates’ Court — Whether exceptional circumstances justifying bail — Whether unacceptable risk of offending or failing to appear, if bailed — Whether charge misconceived — Whether condition to reside at OH is a “conduct condition to attend and participate in bail support services” — Whether OH’s support for applicant’s discharge is a defence — Applicant spent 62 days on remand — Maximum penalty for offence charged is three months’ gaol yet five months’ delay between arrest and hearing of charge — Applicant recommended for Court Integrated Services Program — Applicant’s parents offered accommodation and support — Bail and variation ultimately unopposed — Charge foredoomed to failure — Exceptional circumstances established — No unacceptable risk of offending or failing to appear, if bailed — Bail granted, on conditions — Existing bail varied to same conditions — Bail Act 1977 (Vic), ss 3AAA, 4AA, 4A, 4D & 4E.
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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr A Patton	Criminal Lawyers Geelong	
			
For the Respondent	Mr M Sontag	Victoria Police, Legal Practice Group	

HIS HONOUR:
Overview
1	On 4 May 2021, I granted an application by Kane Turner for bail on a charge that he breached a condition of a previous bail I had fixed last year.  At the same time, I granted his application to vary the order for bail that he was alleged to have breached.  I gave detailed ex tempore reasons for those decisions, but said that I would publish written reasons at a later time.  These are those reasons.
Background
Previous charges and bail
2	On 18 September 2020, Mr Turner was arrested and charged with numerous dishonesty offences, including using counterfeit money, and some driving and bail offences.  He also faced, and still faces, other outstanding charges of a similar nature.
3	On 30 November 2020, I heard Mr Turner’s application for bail.  In his twenties, Mr Turner led a relatively conventional life, with a good job as a tradesman.  For the seven years or so prior to his arrest, however, he struggled with a cycle of drug addiction, criminal offending, and community-based dispositions or imprisonment.  On that occasion, there was before me persuasive evidence that the key to breaking that cycle was to be rid of his drug addiction, and that a stint in Odyssey House’s residential rehabilitation programme offered him that opportunity.   
4	In the result, I found that the relevant legal hurdles were cleared and ordered that Mr Turner be released on bail on his own undertaking with the following conditions:
(a)	Mr Turner is to reside at Odyssey House for at least four months from 10:00 a.m. on 2 December 2020 (i.e. to at least 2 April 2021) or for as long as Odyssey House considers it necessary that he remain in their residential rehabilitation programme.
(b)	Following his release from Odyssey House, Mr Turner is to reside at an address considered suitable by Mr Turner and the informant … and, failing agreement, to be determined by the Magistrates’ Court.
(c)	Mr Turner must complete, and comply with the conditions of, the residential rehabilitation programme at Odyssey House to the satisfaction of Odyssey House.
(d)	Mr Turner is not to leave Odyssey House between 10:00 p.m. and 5:00 a.m. other than in an emergency.
(e)	Mr Turner is not to drive a motor vehicle.
(f)	Mr Turner is to appear at the Magistrates’ Court at Geelong on 15 December 2020 at 9:30 a.m. and thereafter as directed by that court.
Charge of contravening conduct condition of bail
5	After spending three months at Odyssey House, on 2 March 2021, Mr Turner requested to leave.  While he had remained free of illicit drugs during his time there, it appears that he struggled with the group therapy component of the programme.  He wished to seek individual community-based treatment instead and to live elsewhere for that purpose.  In an affidavit filed on behalf of the prosecution, there was evidence, to which I shall return, that Mr Turner was supported in that endeavour by Odyssey House and was discharged.
6	Before he left, Mr Turner informed police that he wished to vary his bail to live at an address in Geelong.  He was told by police that a suitability check would need to be conducted before that could occur, and that he would be breaching his bail if he resided at an address that was not deemed suitable.  He left Odyssey House before the check was conducted and headed to the Geelong address.
7	The next morning (on 3 March 2021), police went to that address, but Mr Turner was not there.  A friend who was present at that address rang him and conveyed a message that he must attend the police station, which he did.
8	Once at the police station, he was arrested and interviewed.  When asked why he left Odyssey House, Mr Turner said, “They were going to kick me out.”  When asked if he knew his conditions of bail, he said, “Yeah, I know I’m breaching my bail.”
9	The informant, Leading Senior Constable Keith Lill, charged Mr Turner with an offence against s 30A(1) of the Bail Act 1977 (Vic) (“the Bail Act”), particularised in this way:
The accused at Geelong on [3 March 2021] having been granted bail did without reasonable excuse contravene any conduct condition namely to reside at Odyssey House rehabilitation centre … by leaving and travelling to Geelong.
Bail application before Magistrates’ Court
10	On 10 March 2021, Mr Turner applied for bail in the Magistrates’ Court at Geelong.  The application was opposed.  Evidence was led from Dean Lloyd as to the availability of accommodation and the level of supervision he could provide to Mr Turner.  The magistrate, however, refused bail, finding that Mr Turner presented an unacceptable risk of offending whilst on bail.
The parties’ initial positions in this Court
11	Initially, in helpful written submissions filed by Mr Albore on behalf of the informant ahead of the hearing, it was indicated that bail was opposed.  In short, it was submitted, first, that it was not open to find that Mr Turner had established the existence of exceptional circumstances justifying bail; and, second, even if exceptional circumstances were established, the prosecution had established an unacceptable risk that, if released, Mr Turner would commit an offence or fail to appear.  This was especially so, it was said, given Mr Turner’s criminal record and his premature departure from Odyssey House.
12	Mr Patton, who appeared for Mr Turner in this Court, also filed helpful written submissions ahead of the hearing.  In those submissions, he relied on a combination of matters to establish exceptional circumstances, including the following:
a)	First, given that he was arrested on 3 March 2021 and the present matter was scheduled to be heard on 4 August 2021, it was plain that, if he were not bailed, Mr Turner would spend more time in custody than he would if convicted and sentenced to the maximum penalty for the offence charged (which is three months’ imprisonment).
b)	Secondly, Mr Turner was accepted into the Court Integrated Services Program (“CISP”), through which he could receive individualised drug and mental health treatment while on bail and living in the community.
c)	Thirdly, Mr Turner’s parents had offered him accommodation at their home, as well as their support, including offering to take him to CISP appointments.  Previously, they had not been prepared to accommodate him, but his three-month drug-free stint at Odyssey House altered their thinking.
13	As to unacceptable risk, Mr Patton submitted that the imposition of suitable bail conditions, along with the structured supervision and treatment that CISP would provide, would render any such risk acceptable.
14	Were bail granted, submitted Mr Patton, the same conditions should be applied to Mr Turner’s existing bail.  Equally, he indicated that, were bail refused, Mr Turner would abandon the application to vary his existing bail.
The prosecution’s change of heart
15	At the outset of the hearing, however, I raised two particular concerns about the merits of the charge against Mr Turner.  As to the first, for reasons I shall give shortly, I expressed the view that it appeared that the charge under s 30A(1) of the Bail Act was foredoomed to failure.  My second concern was that, even if I were wrong about the first point, there was evidence before me suggesting that Mr Turner may have a good defence to the charge or a reasonable excuse.
16	My ultimate concern was that, if either or both of these points were tenable, then that conclusion must impact either conclusively or substantially on whether exceptional circumstances had been established and, in consequence, on whether bail might be granted, especially as this was the only charge on which Mr Turner was being held.
17	After these points were raised with counsel, I stood the applications down at the request of Mr Sontag, who appeared for the informant in this Court, so that he could dash over to the prosecutors’ chambers and obtain considered instructions.
18	Upon the resumption, Mr Sontag indicated that bail was no longer opposed.  He explained that, while consideration would be given to whether a more suitable charge might be available, his submission was that it would not be appropriate to seek to do so on the hop, and that, in the circumstances of this case, it might well have amounted to an abuse of process to delay the matter any longer anyway.  That submission was, in my view, correct.  He also indicated that the application to vary bail was no longer opposed.
19	Unsurprisingly, Mr Patton made no submission to the contrary.
20	All of that said, and as important as Mr Sontag’s responsible concessions were, it was still for me to determine whether exceptional circumstances were established, whether there was an absence of satisfaction that, if bailed, Mr Turner would present an unacceptable risk of offending or failing to appear, whether bail should be granted and whether the existing bail should be varied.  I now turn to address those questions, albeit more briefly than I might had there been no concessions.
Exceptional circumstances
Surrounding circumstances
21	Pursuant to s 4A(3) of the Bail Act, in considering whether exceptional circumstances exist, the decision maker must take into account the “surrounding circumstances”.  Pursuant to s 3AAA(1), where that task is undertaken, the decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following:
(a)	the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)	the strength of the prosecution case;
(c)	the accused’s criminal history;
(d)	the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)	whether, at the time of the alleged offending, the accused— 
(i)	was on bail for another offence; or 
(ii)	was subject to a summons to answer to a charge for another offence; or 
(iii)	was at large awaiting trial for another offence; 
(iv)	was released under a parole order; or
(v)	was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)	whether there is in force [a family violence intervention order or similar order made against the accused;]
(g)	the accused’s personal circumstances, associations, home environment and background;
(h)	any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness; and
(i)	the availability of treatment or bail support services; 
(j)	any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)	the length of time the accused is likely to spend in custody if bail is refused;
(l)	the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
Strength of prosecution case
Odyssey House residential condition attracts s 30A(2) of the Bail Act
22	In my view, if there is a good argument that the only charge on which an accused is being held in custody is foredoomed to failure, that fact, in and of itself, amounts to exceptional circumstances and necessitates bail.
23	As it happens, it seemed to me unarguably correct that the charge laid against Mr Turner was foredoomed to failure.  This was because the charge alleged a breach of a conduct condition of bail — namely, to “reside at Odyssey House rehabilitation centre” — by leaving those premises in circumstances where s 30A(2) provides that sub-section (1) “does not apply to contravention of a conduct condition requiring the accused to attend and participate in bail support services” and Odyssey House, on the face of it, appeared to be a bail support service.
24	In s 3 of the Bail Act, “bail support service” is defined as meaning:
a service provided to assist an accused to comply with his or her bail undertaking (whether or not that type of service is also provided to persons other than an accused on bail) including, but not limited to—
(a)	bail support programs; 
(b)	medical treatment; 
(c)	counselling services or treatment services for substance abuse or other behaviour which may lead to commission of offences; 
(d)	counselling, treatment, support or assistance services for one or more of the following—
(i)	a mental illness; 
(ii)	an intellectual disability;
(iii)	an acquired brain injury; 
(iv)	autism spectrum disorder; 
(v)	a neurological impairment, including, but not limited to, dementia; 
(e)	services to help resolve homelessness.  
25	Plainly, it is more than reasonably arguable that Odyssey House falls within either paragraph (a) or paragraph (c), or both, of the foregoing definition.  I should have thought that the services offered by Odyssey House, which provides “counselling services or treatment services for substance abuse or other behaviour”, constitute the very essence of a “bail support program”.  Indeed, among the reasons why I was prepared to bail Mr Turner to Odyssey House in the first place was my satisfaction, on the evidence, that his substance abuse led to his offending and that counselling or treatment services of the type provided in that organisation’s rehabilitation programme were directed at increasing his chances of recovery and reducing his risk of re-offending.
26	Thus, I was satisfied that the present charge was hopelessly flawed, and that that factor alone gave rise to exceptional circumstances justifying bail.
Potential defence or reasonable excuse
27	My second concern about the merits of the charge was that, even if I might have been wrong about the first point, there was evidence before me suggesting that Mr Turner may have a good defence to the charge or a reasonable excuse.
28	In particular, there was in the affidavit material filed an email to the informant from a senior drug and alcohol therapist at Odyssey House to the effect that Mr Turner was “discharge[d]” from the programme and “was supported [by Odyssey House] to exit treatment as he wished to seek [community-based treatment]”.  In view of that evidence, it seemed to me to be at least arguable that, by leaving, Mr Turner either had not contravened the condition “to reside at Odyssey House … for as long as Odyssey House consider[ed] it necessary that he remain in their residential rehabilitation programme” or that he otherwise had a reasonable excuse.
29	Even if it was not as powerful a point as the former, it was, in my view, still a consideration that rendered the prosecution case so weak that, in view of the fact that it was the only charge holding him, exceptional circumstances justifying bail were established.
Other factors
30	Even if I was wrong in my assessment of the weight to be given to the foregoing factors, I was satisfied that those factors, taken in combination with the others mentioned by Mr Patton, and the concession of Mr Sontag, amounted to exceptional circumstances justifying bail.  I shall mention only a few of those other matters (or groups of matters) here.
31	First, Mr Turner had already spent 62 days in custody on a charge for an offence that carried a maximum penalty of three months’ imprisonment, yet the delay between arrest and the next hearing date was in the order of five months.  Thus, even in the extraordinarily unlikely event that Mr Turner were convicted and given the maximum penalty, he still would have been held in custody for two months beyond the length of that sentence.  Further, in my view, given the circumstances in which the offence was alleged to have been committed, it was difficult to see how a prison sentence would be warranted upon conviction.
32	Secondly, that Mr Turner was accepted into CISP was a very important consideration.  This meant that he could build on the rehabilitative gains that he made in his three months at Odyssey House.
33	Thirdly, it was also important that Mr Turner was able to live with, and receive the support of, his parents.  This type of support gave me more confidence that Mr Turner had a reasonable chance of complying with CISP’s directives, increasing his prospects of reform and reducing his risk of recidivism.
34	Finally, Mr Sontag’s concessions were made only after consulting others in the prosecutions team.  These concessions were made against a background of more detailed submissions which had emphasised Mr Turner’s criminal history, his departure from Odyssey House without police sanctioning his proposed new address, and other features adverse to his applications.  It is comforting to a judge to have such well-considered assistance from a prosecutor.
Conclusion
35	For these reasons, I was satisfied that exceptional circumstances justifying bail were established.
Unacceptable risk
36	As for unacceptable risk, as I said in the course of argument, I think that Mr Turner was in a similar — albeit not identical — position to that which obtained before me last November.  Yes, of course, there was a risk that he would re-offend if bailed.  His criminal history showed that.  The nature of his drug-related affliction and some other factors in his personal life also made that so.  Added to that was the reality that he did leave Odyssey House after three months, when the hope was that he would be there for at least four months and, perhaps in the minds of some, up to twelve months.
37	On the other hand, the fact that he did spend three months at Odyssey House shows a degree of abstinence and commitment that Mr Turner had not been able to show in recent years.  He did attempt to contact the informant via his solicitor to tell him that he intended to leave and he ultimately handed himself in immediately upon request.  As I also pointed out for another purpose, there is evidence that he was “supported to exit treatment as he wished to seek treatment that was community based”.  Further, his parents provided him with a residence and were more supportive than they had been in former times.
38	I was also satisfied that the conditions of bail that were agreed by the parties would tend to ameliorate the risks that Mr Turner posed.
39	So, for all those reasons, while there was plainly a risk that, if bailed, Mr Turner might fail to appear or commit an offence, I was not satisfied that the level of risk was unacceptable.  
Order granting bail
40	Accordingly, I admitted Mr Turner to bail upon his own undertaking and with the following conditions:
(a)	Mr Turner is to reside with his parents … at … (“his residence”).
(b)	Mr Turner is not to leave his residence between 10:00 p.m. and 5:00 a.m. other than in an emergency.
(c)	Mr Turner is to participate in the Court Integrated Services Programme (“CISP”), including attendance at any bail support services as directed by CISP.
(d)	Mr Turner is not to drive a motor vehicle.
(e)	Mr Turner is to appear at the Magistrates’ Court at Geelong on 4 August 2021 at 9:30 a.m. and thereafter as directed by that court.
Application to vary bail
41	In those circumstances, there was no reason to do other than grant Mr Turner’s application to vary his existing bail so that it contained the same conditions as the fresh bail.  So I did.
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