R v Lombardi

Case [2013] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v LOMBARDI

[2013] SASC 61

Judgment of The Honourable Chief Justice Kourakis

16 April 2013

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

Application by the DPP to review an order of a Magistrate granting the respondent bail - respondent charged with firearm and drug related offences.

Whether the respondent's application for bail is governed by s 10A of the Bail Act 1985 (SA) - whether the respondent established the existence of special circumstances justifying his release on bail.

Held: application for review allowed - the respondent's application for bail is governed by s 10A of the Bail Act 1985 (SA) - the respondent failed to establish the existence of special circumstances - bail granted in the Magistrates Court be set aside - respondent's application to make a fresh grant of bail refused.

Bail Act 1985 (SA) s 3A, s 10, s 10A; Criminal Law Consolidation Act 1935 (SA) s 20AA; Criminal Law (Sentencing) Act 1988 (SA) s 20A, S 20AAC; Firearms Act 1977 (SA) , referred to.
R v Buhlmann [2010] SASC 123; Saywell v Yiu (1976) 14 SASR 56, discussed.
R v Barnett [2009] SASC 332, considered.

R v LOMBARDI
[2013] SASC 61

Application for Review of Bail

  1. KOURAKIS CJ:    The Director of Public Prosecutions has applied for a review of the decision of the Magistrates Court to grant the respondent, Mr Lombardi, bail.  Mr Lombardi was taken into custody on charges of aggravated possess firearm without licence, non-aggravated possess firearm without licence, traffic in a controlled drug (aggravated), possess prescription drug, possess prescribed equipment, possess declared listening device without consent, fail to keep prescribed firearm secured, fail to keep class A or B firearm secured and fail to store ammunition separately from firearms.

    The circumstances

  2. Police discovered evidence of the alleged offending when they searched Mr Lombardi’s residence at Rostrevor on 27 March 2013.  The police found a sawn-off double barrel shotgun hidden in the floor space of an office adjacent to the garage of the residence.  In a kitchen cupboard the police located a jar of a white granular substance which gave a positive indication for amphetamine.  At the rear of the residence the police located a concealed crawl space which led to a number of rooms underneath the residence.  In those rooms police found 380 rounds of 7.62 rifle ammunition.  In the dining area of the house police located two declared listening devices and one GPS tracking device.  They also found two 12 gauge shotgun shells, a mini camera with an HD recorder, and two other micro cameras.  In the bedroom of the residence were another three 12 gauge shotgun shells.

  3. Mr Lombardi had applied for a firearms licence in 2008 but his application was refused. 

  4. Police made unsuccessful attempts to locate the accused after the search but he was not arrested until Friday 5 April 2013 when he attended the Grenfell Street police station with a solicitor. 

  5. Mr Lombardi…

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Details
AGLC
R v Lombardi [2013] SASC 61
Case
[2013] SASC 61
Decision Date

CaseChat Overview and Summary

The case of R v Lombardi involved the respondent, who was an alleged offender, challenging the revocation of his bail under s 10A of the Bail Act 1985 (SA). The nature of the dispute centred on whether the respondent's personal circumstances were sufficiently exceptional to warrant a departure from the general rule against granting bail to individuals deemed to pose a significant risk to the community. The case was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the respondent had established the existence of special circumstances that would allow him to be granted bail, despite the presumption against bail for certain serious firearm offences. The court was required to determine whether the respondent's personal circumstances, including his health and the impact on his family, were exceptional enough to justify a grant of bail under s 10A(1) of the Bail Act.

The court held that the respondent had failed to establish the existence of special circumstances. It was found that the alleged circumstances of the offence, including the possession of a sawn-off shotgun, a significant quantity of amphetamine, and unexplained listening devices, were typical of the class of serious firearm offenders prescribed by s 10A(2)(e) of the Bail Act. The respondent's criminal history, while not the worst, was not a good record, and his health condition, although requiring periodic medical attention, was manageable in a prison setting. The court also noted that the respondent's capacity to abscond and commit further offences would be limited if granted home detention bail. Consequently, the court concluded that the possibility of home detention bail did not establish special circumstances sufficient to warrant a grant of bail.

The court allowed the application for review, setting aside the bail granted in the Magistrates Court and refusing the respondent's application to make a fresh grant of bail.

Orders

Orders of the court

Held: application for review allowed - the respondent's application for bail is governed by s 10A of the Bail Act 1985 (SA) - the respondent failed to establish the existence of special circumstances - bail granted in the Magistrates Court be set aside - respondent's application to make a fresh grant of bail refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice.Conclusion In my view, the respondent has failed to establish the existence of special circumstances in this case. The primary consideration must be whether the applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. The circumstances of the alleged offending will therefore be very important. In this case, the alleged circumstances of the offending are typical of the class of serious firearm offenders prescribed by s 10A(2)(e) of the Bail Act. The firearm was a sawn-off shotgun hidden in a house in which it is alleged there was a significant quantity of the drug amphetamine. The possession of the listening devices, having been left unexplained, raises an inference of sophisticated involvement in organised crime. Ammunition was scattered around the house. I accept that the circumstances which should be considered for the purposes of s 10A(1) also extend to the respondent’s personal circumstances. In this case the respondent’s criminal offending history is not as bad as some of the offending histories of persons charged with offences of this kind. However, it is not a good record. The respondent’s relatively poor health is important. It would make it difficult for him to stay on the run for a protracted period of time but his need for medical attention is periodic and not constant. Moreover, his condition has not prevented him from working in the relatively arduous occupation of tiler. As I earlier observed there is no material to suggest that his condition cannot be suitably managed in prison. The remand of the appellant in custody will result in some hardship for his de facto partner but there is no reason to think that she and her child will not be supported by her family and friends, including the respondent’s mother. Indeed, the appellant’s partner had been residing in Mount Gambier for three months before the appellant’s home was searched by police. The respondent’s capacity to abscond and commit any further offences would be severely limited by home detention bail. However, the possibility of home detention bail must have clearly been in the contemplation of Parliament and in itself, therefore, does not go very far in establishing special circumstances in a particular case.

Ratio Decidendi

Legal Principle Established

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