Director of Public Prosecutions v Stewart

[2004] VSC 405

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1493 of 2004

IN THE MATTER of an application for bail by CLIVE COLIN STEWART

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JUDGE:	Morris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2004
DATE OF JUDGMENT:	11 October 2004
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2004] VSC 405

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.J. Pickering	Crown
For the Applicant	Mr J.D. Williams	Mr Stewart

HIS HONOUR:

1. Clive Colin Stewart is charged with two offences of armed robbery, which were said to occur on 31 August 2004.  Following his arrest, shortly after that date, he has been held in custody.  He applied to the Magistrates’ Court for bail which was refused.  He now applies to this Court for bail.

1. The nature of the charge is such that it falls within s 4(4)(c) of the Bail Act 1977. The effect of this is that the Court is required to refuse bail unless the accused person shows cause why his detention in custody is not justified. Further, if I do grant bail by reason of that provision I must include in the Order a statement of reasons for making the Order. The reasons I now give are part of the Order.

1. I am satisfied that Mr Stewart has shown cause why his detention in custody is not justified.

1. Mr Williams, who appeared for Mr Stewart, pointed to five factors in support of his contention that cause was shown.

1. The first factor is that Mr Stewart has just turned 18 years.  This is a relevant factor.

1. The second factor is that he suffers from intellectual disability, possibly affected by a habit of “chroming”.  I think his intellectual capacity is a relevant consideration.

1. The third factor is that his grandmother is offering her house in Deer Park as a place of residence.  On the material before me, she will provide love and care to Mr Stewart to the best of her ability.  This is relevant, even though Mr Stewart lived at this address when the matters, the subject of the charges, occurred.

1. The fourth factor which was advanced was that these offences occurred during the period of transition between services being provided to Mr Stewart as a person under 18 and adult services being provided to him on the basis of his disability.  I am not sure whether that is an argument that is particularly powerful in the circumstances.  But one thing is clear.  Mr Stewart’s future depends on two things.  First, it depends on the amount of love and care he is given.  Second, it depends upon his own attitude.  Unless he adopts an attitude where he wants to lift himself out of the mire, the chances are he will not succeed.  Much of the effort that needs to go into this case no doubt will be directed at empowering Mr Stewart to make decisions himself that are in his long term interest.

1. The fifth factor that was referred to is the existence of various support networks that are willing to assist Mr Stewart if he is granted bail.  I think this is significant in showing cause.  I am satisfied on the evidence that he will get support from his grandparents, but also from the disability worker with the Department of Human Services.  He will also receive support from an organisation called West Care and from an aboriginal cooperative designed to deal with substance abuse.

1. I appreciate that under s 4(2)(d) of the Bail Act I must refuse bail if I am satisfied that there is an unacceptable risk that the accused person, if released on bail, would, amongst other things, commit an offence whilst on bail or endanger the safety or welfare of members of the public.  Having regard to the support which is proposed I am not satisfied that there is an unacceptable risk of any of those things, notwithstanding that there is obviously a risk.

1. What is an unacceptable risk must be considered in the context of the conditions to which bail will be subject if bail is granted.  In this case the conditions I propose will require a great deal of support from other people, which will be freely given.  I think with that support there is a sufficient prospect of reducing the risk to one that is acceptable rather than unacceptable.

1. The final factor that I regard as relevant is the fact that, if Mr Stewart is convicted of the offences which he is charged with, there is a prospect that the penalty might be less than the amount of time that he would need to be kept in gaol between the time he was arrested and the hearing of the charge.  The matter is listed for a committal in the Magistrates’ Court in November; and, presumably, if he is committed would proceed in the County Court a considerable period thereafter.  This factor together with the other factors I have mentioned are in my opinion sufficient that cause has been shown.