Domotor v The Queen

[2015] VSC 100

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0185

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by Steven DOMOTOR

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2015
DATE OF JUDGEMENT:	19 March 2015
CASE MAY BE CITED AS:	Domotor v R
MEDIUM NEUTRAL CITATION:	[2015] VSC 100

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CRIMINAL LAW – Bail – Exceptional circumstances – Not an unacceptable risk – Terminally ill applicant – Charged with murder – Bail granted - Bail Act 1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Hevey	Office of Public Prosecutions
For the Accused	Mr A Jackson	Slades & Parsons Lawyers

HIS HONOUR:

1. Steven Domotor is charged with murdering Rocky Makstassy on 21 March 2014.  He was arrested and charged with that offence on 22 March 2014 and has been in custody ever since.

1. This morning Mr Domotor made an application for bail. After hearing evidence from a medical oncologist about Mr Domotor’s medical condition – in particular that he has an aggressive brain tumour and a life expectancy of about six months -  I found that Mr Domotor had established exceptional circumstance and that he was an acceptable risk if released on bail.  I granted him bail on the condition that he attend a special hearing scheduled for 13 April 2015 (should it proceed), reside with his wife at their home in West Melton and not contact certain prosecution witnesses.  I said I would provide more detailed reasons later. These are my reasons.

1. The medical oncologist who gave evidence this morning, Dr Anthony Dowling from St Vincent’s Hospital, confirmed that in April 2014 and again in February 2015, Mr Domotor underwent brain surgery for what Dr Dowling agreed was an aggressive brain tumour.  He opined that it is highly likely that the tumour will recur. As well as indicating that Mr Domotor’s life expectancy was now about six months (backdated to the return of the tumour in February this year) , Dr Dowling opined that Mr Domotor only had a 5% chance of lasting till Christmas.

1. Dr Dowling also gave evidence that Mr Domotor has required a walking frame since January 2015 and that his mobility is very limited and will deteriorate further in the coming months.  This is relevant to the risk of Mr Domotor reoffending if released on bail, which I regard as minimal.

1. Dr Dowling gave evidence that if released on bail, Mr Domotor will be able to utilize community palliative care.  Dr Dowling indicated that the palliative care resources available to prisoners are more limited.

1. Having heard Dr Dowling’s evidence, I expressed the provisional view that exceptional circumstances were made out and that the risk of Mr Domotor reoffending if released on bail was not unacceptable. The prosecution agreed. They indicated that they did not oppose bail.

1. I note for completeness sake that there is an issue as to whether Mr Domotor is unfit to plead.  Expert reports commissioned by both the prosecution and defence opine that he is unfit. Currently,  that issue is to be the subject of an Investigation on 13 April 2015 with a special hearing to follow immediately thereafter if Mr Domotor is found unfit to plead.

1. I also note that an application for a discontinuance is under consideration by the prosecution. I was told by prosecuting counsel this morning that the evidence given by Dr Dowling today about Mr Domotor’s prognosis will be taken into account.