R v Hapeta
[2012] VSC 387
•22 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0179 of 2010
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by CASEY LEE HAPETA
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2012 | |
DATE OF JUDGMENT: | 22 August 2012 | |
CASE MAY BE CITED AS: | R v Hapeta | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 387 | |
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CRIMINAL LAW – Bail application – Suspended sentence restored – Application for bail pending appeal – Bail opposed on the ground of unacceptable risk of committing an offence whilst on bail – Short period between application and the hearing of the appeal – Finding of risk of offending but not an unacceptable risk – Bail granted – s 4(2)(d) Bail Act 1977 – s 83AR of the Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | M Zammit | Office of Public Prosecutions |
| For the Applicant | T Marsh | Victorian Legal Aid |
HIS HONOUR:
Casy Lee Hapeta applies for bail pending appeal. On 16 September 2011, the applicant was sentenced to a term of three months’ imprisonment. That sentence was wholly suspended for twelve months. That sentence was imposed on the applicant for driving on 28 March 2011 whilst his licence was suspended and for twice failing to answer bail.
On 10 August 2012, the applicant again appeared in court and was convicted of driving on 20 February 2012 whilst his licence was suspended and sentenced to two months’ imprisonment. He was also convicted on 10 August 2012 of driving on 10 March 2012 whilst his licence was suspended and sentenced to two months’ imprisonment.
On 10 August, he was also charged with and pleaded guilty to breaching the suspended sentence of three months’ imprisonment order that had been imposed on 16 September 2011. The learned magistrate restored the suspended sentence of three months’ imprisonment and ordered that the terms of imprisonment imposed for the other two offences be served concurrently with the restored three months’ imprisonment. The applicant applied for bail from the learned magistrate under s 265 of the Criminal Procedure Act 2009. The magistrate refused the application.
Section 264 in effect provides that the Bail Act 1977 is enlivened when such an application for bail is made pending appeal. My jurisdiction is enlivened, therefore, to consider an application for bail by the applicant.
The application for bail is opposed by the Crown on the basis that there is an unacceptable risk that the applicant, if released on bail, would commit an offence whilst on bail.
The Bail Act 1977 provides that any person accused of an offence and being held in custody in relation to the offence shall be granted bail subject to exceptions provided in the Act.[1] In this case I am to interpret that provision as applying, insofar as necessary, to a person who has been convicted of an offence and has appealed.
[1]See Bail Act 1977 (Vic) s 4(1).
The Act provides, however, that a court shall refuse bail “if the court is satisfied … that there is an unacceptable risk that the accused if released on bail … would commit an offence whilst on bail.”[2]
[2]Bail Act 1977 (Vic) s 4(2)(d)(i).
The Crown relies upon the history of the convictions of driving offences incurred by the applicant over the last eight years. (The Crown did not rely upon earlier driving convictions before the Children’s Court.) On 17 May 2004, the applicant was driving whilst unlicensed and was subsequently convicted of that offence. On 19 September 2004, the applicant was driving whilst unlicensed and was subsequently convicted for that offence. On 28 November 2004, the applicant was driving whilst his licence was disqualified and subsequently convicted for that offence. On 14 April 2005, the applicant was driving while his authorisation to drive had been suspended. He was subsequently convicted of that offence. On 12 August 2006, the applicant was driving whilst unlicensed and subsequently convicted of that offence. On 5 June 2007, the applicant was driving whilst unlicensed and subsequently convicted. On 28 June 2007, the applicant was driving whilst unlicensed and subsequently convicted of that offence. On 28 March 2011, the applicant was driving whilst his licence was suspended and subsequently convicted of that offence. On 20 February of this year, he was driving when his licence was suspended and subsequently convicted of that offence. Some 20 days later, on 10 March 2012, he was driving whilst his licence was suspended; he was apprehend and subsequently convicted.
The applicant’s driving record is outrageous and shows a blatant disregard for the road safety laws that govern the safe use of vehicles on the road.
In order to deny bail I must be satisfied that there is an unacceptable risk that the applicant, if released on bail, would commit an offence whilst on bail. I must take into account that the period of bail that we are addressing is from today, 22 August 2012, to 6 September 2012, which is some 15 days, a little more than a fortnight.
Mr Marsh of counsel, who appears for the applicant, has rightly said that in assessing whether there is an unacceptable risk of the applicant committing an offence whilst on bail I must have regard to the considerations referred to in s 4(3) of the Bail Act.
The first consideration is the nature and the seriousness of the offence. Mr Marsh submits that in the light of the fact that the Bail Act refers to treason, murder, and armed robbery, the seriousness of unlicensed driving is at the lower end of the scale.
The second consideration requires me to have regard to the character, antecedents, associations, home environment, and background of the applicant. I do not consider that I can place much weight on the applicant’s character. The applicant’s home environment was relied upon. The applicant has a house in Melton. The applicant has three young children whom he is caring for. The applicant has a partner, “who comes and goes”, in the expression of his brother. His partner is absent at the moment, and has been absent for some three months. As mentioned above, the background of the applicant is one of blatant disrespect for the road safety laws.
The third consideration requires me to have regard to the history of any previous grants of bail to the applicant. Mr Hapeta has a less than perfect history. He has been convicted of failing to answer bail. He had been bailed on traffic offences.
The fourth consideration requires me to have regard to the strength of the evidence against the applicant. In doing that, I have regard to what the magistrate would have to satisfy himself of in order not to restore the suspended sentence. I was referred to subsection 83AR(1) of the Sentencing Act 1991 which provides that:
If the court finds a person guilty of an offence under s 83AB [which I am told will be the case here] in respect of a suspended sentence order the court must (in addition to sentencing the offender for the offence) –
(a)restore the sentence or part sentence held in suspense and order the offender to serve it; or
(b)restore part of the sentence or part sentence held in suspense and order the offender to serve it; or
(c)in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this subsection; or
(d)make no order in respect of the suspended sentence.
Sub-section (2) provides that:
Despite anything to the contrary in subsection (1), if the court finds the offender guilty as mentioned in that subsection it must exercise the power referred to in subsection (1)(a) unless it is of the opinion that it would be unjust to do so because exceptional circumstances have arisen since the order suspending the sentence was made.
It appears to me that in considering the strength of the evidence against the applicant the Sentencing Act requires me to take into account the strength of the case on the appeal. The appeal judge will be hearing the matter de novo in the County Court, and the appeal judge must impose a suspended sentence unless the appeal judge is satisfied that exceptional circumstances have arisen since the order suspending the sentence was made.
There was a debate between counsel as to whether that time expires when the contravention offence (if I can call it that) occurred, or whether the court may take into account exceptional circumstance up until the time the matter is dealt with by the court. I do not need to decide that dispute. Mr Marsh did not seek to submit that I should place great weight on these considerations. He fairly put it by saying that the applicant faces a significant hurdle on his appeal.
The fifth consideration deals with victims and is not directly relevant.
The sixth consideration requires me to have regard to “any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.”[3]
[3]Bail Act 1977 s 4(3)(f).
The relevant test I must consider refers to an unacceptable risk, not merely a risk. Mr Marsh said that the offending car has been sold, and that the other car that the applicant had use of belonged to his former partner – the inference being that she has taken that car with her.
The applicant relies upon the hardship to his family by him being incarcerated. He has three children at home being looked after by his brother, Travis. Travis has a boy of his own. Travis’s circumstances are such that his partner is pregnant and she is in hospital at the moment having tests, they have got their hands full with the forthcoming baby, and that there is hardship on the family looking after the three boys. The third brother, Kruze, who gave evidence, said he also was involved in helping out and experiencing hardship because his brother was not about to look after the three children (who are under ten years of age).
The applicant’s appeal is to be heard in 15 days. I am satisfied that there is a risk that if the applicant is released on bail he would commit an offence by driving a car in the next 15 days. In view of the very short period of time between today and the hearing of the appeal (15 days), I am not satisfied, however, that the risk is an unacceptable risk, despite the applicant’s appalling record of disregard for the road safety laws. If the time to the appeal was materially longer, I might find that the risk of offending was unacceptable.
In these circumstances, I propose to grant bail. I will impose a condition that the applicant not drive any motor vehicle whilst on bail. If that condition is breached the applicant may be in breach of a Supreme Court order, and the consequences could be severe indeed. I will also impose the condition that Mr Hapeta reside at the Melton address known to the police.
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