Application for bail by SP - [2022] VSC 626

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0249

IN THE MATTER of the Bail Act 1977	Crown
v
IN THE MATTER of an Application for Bail by SP	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2022
DATE OF RULING:	17 October 2022
CASE MAY BE CITED AS:	Application for bail by SP
MEDIUM NEUTRAL CITATION:	[2022] VSC 626

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CRIMINAL LAW – Bail – Applicant charged with traffick methamphetamine (commercial quantity or alternatively traffickable quantity) – Aboriginal applicant – Mental health issues – Partner shortly due to give birth – Couple experienced loss of previous baby in 2021 – Unclear whether seized substance found meets threshold for commercial quantity – Drug Poisons and Controlled Substances Act 1981 (Vic) ss 71AA and schedule eleven – Exceptional circumstances shown – Whether unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3AAA(1), 4E(1) and 3A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Stephanie Joosten	Kurnai Legal Practice
For the Respondent	Ms Toni Stokes	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant, SP, is a 29 year old Aboriginal man. On 22 September 2022 he was charged and remanded for several offences alleged to have occurred on 22 September 2022, including:

(a) Charge 1: Trafficking a commercial quantity of methylamphetamine pursuant to s 71AA of the Drug Poisons and Controlled Substances Act 1981 (Vic) (‘the Act’).

(b) Charge 2: Trafficking a drug of dependence (methylamphetamine) pursuant to s 71AC of the Act.

(c) Court 3: Possessing a drug of dependence (methylamphetamine) pursuant to s 73 of the Act.

(d) Charge 4: Trafficking a drug of dependence (cannabis) pursuant to s 71AC of the Act.

(e) Charge 5: Possessing a drug of dependence (cannabis) pursuant to s 73 of the Act.

(f) Charge 6: Deal with proceeds of crime pursuant to s 194(2) of the Crimes Act 1958 (Vic) (‘the Crimes Act’).

(g) Charge 7 and 8: Two counts of possessing a prohibited weapon pursuant to s 5AA of the Crimes Act, being a butter knife and a laser pointer.

The applicant is subject to a Firearms Prohibition Order (FPO) which was served on him on 23 February 2022. On 22 September 2022, police attended the applicant’s home in Morwell to conduct an FPO compliance search. Police found the following items during the search:

(a) 10 x envelopes containing a substance believed to be methylamphetamine, weighing a total of 90 grams;

(b) 10 x zip lock bags containing a substance believed to be cannabis – the amount of cannabis has not been particularised;

(c) Butterfly knife;

(d) Two notebooks alleged to be 'tick books';

(e) A black laser pointer; and

(f) $2,295 in cash.

The matters are listed for contest mention on 16 December 2022.

The applicant was remanded on 22 September 2022 and was refused bail in the Latrobe Valley Magistrates’ Court on 26 September 2022 before Magistrate Burns on the basis that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application for bail by SP

Details

AGLC: Application for bail by SP [2022] VSC 626
Case: [2022] VSC 626
Decision Date: 17 October 2022

CaseChat Overview and Summary

The applicant, SP, sought bail in the Magistrates’ Court of Victoria in relation to charges of trafficking methamphetamine. The primary dispute centred around the nature of the alleged offence, specifically whether the quantity of methamphetamine seized met the threshold for a commercial quantity, and the personal circumstances of the applicant, including their Aboriginal heritage, mental health issues, and the impending birth of a child. The court was tasked with determining whether the applicant met the criteria for bail under the Bail Act 1977 and whether granting bail would pose an unacceptable risk to the community.

The key legal issues before the court included the interpretation of the definition of a commercial quantity of methamphetamine under the Drug Poisons and Controlled Substances Act 1981 (Vic) and the consideration of exceptional circumstances for granting bail. The court had to balance the seriousness of the charge against the applicant’s personal circumstances and the potential impact on their immediate family. The court also needed to assess whether the risk of the applicant reoffending or failing to appear in court outweighed the applicant's right to liberty, taking into account the Bail Act 1977 provisions.

The court found that the evidence was unclear regarding whether the quantity of methamphetamine met the threshold for a commercial quantity. Considering the exceptional circumstances of the case, including the applicant's mental health issues, their Aboriginal heritage, and the imminent birth of a child, the court concluded that there were substantial grounds to believe that the applicant would not reoffend. The personal and family circumstances provided a compelling reason to grant bail. The court determined that the risk to the community was not unacceptable and that the applicant’s right to liberty should be respected. Consequently, the court granted bail under the provisions of the Bail Act 1977, with certain conditions to ensure the applicant’s appearance in court.

The final orders of the court included the applicant being released on bail with conditions, such as reporting to a bail supervisor, adhering to a curfew, and refraining from consuming drugs or alcohol. The applicant was also required to reside at a specified address and to notify the police of any change in residence. The court scheduled a hearing date for the next court appearance to address the substantive charges.

Orders