Re Application for Bail by De Waij - [2016] VSC 805

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0172

IN THE MATTER of the Bail Act 1977

-and-

IN THE MATTER of an Application for Bail by CASPER DE WAIJ

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 November, 1 & 6 December 2016
DATE OF JUDGMENT:	6 December 2016
CASE MAY BE CITED AS:	Re Application for Bail by De Waij
MEDIUM NEUTRAL CITATION:	[2016] VSC 805

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CRIMINAL LAW – Bail – Show cause situation – Applicant diagnosed with borderline personality disorder – Applicant offered place at drug and alcohol rehabilitation facility – Where drug addiction not central to offending – Whether unacceptable risk – Bail refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Emma Turnbull Lawyers
For the Respondent	Mr C F Thomson	Office of Public Prosecutions

HER HONOUR:

The applicant, a 23 year old man, seeks bail and must show cause why his detention in custody is not justified because he has been charged with indictable offences whilst he was at large awaiting trial for another indictable offence,[1] and because he has been charged with the offence of trafficking a drug of dependence.[2]
[1]Bail Act 1977 (Vic) s 4(4)(a).
[2]Bail Act 1977 (Vic) s 4(4)(cab).

He was arrested and charged on 25 August 2016 by Detective Sergeant Holmes (‘the informant’) with the following 12 offences (‘the Holmes brief’):

Charge Offence

1 Prohibited person possessing a firearm at Carnegie on 16 August 2016

2 Trafficking a drug of dependence: methylenedioxymethamphetamine (‘Ecstasy’) at Carnegie on 16 August 2016

3 Possessing a drug of dependence: methylenedioxymethamphetamine (‘Ecstasy’) at Carnegie on 16 August 2016

4 Trafficking a drug of dependence: methylamphetamine (‘Ice’) at Carnegie on 16 August 2016

5 Possessing a drug of dependence: methylamphetamine (‘Ice’) at Carnegie on 16 August 2016

6 Recklessly engaging in conduct (being improper use of a motor vehicle) that placed a person in danger of serious injury at Berwick on 23 August 2016

7 Handling stolen goods (being a Winchester .44 rifle) by or on behalf of another, knowing or believing it to be stolen, at Carnegie on 16 August 2016

8 Handling stolen goods (being three sets of stolen registration plates) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016

9 Handling stolen goods (being items of jewellery) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016

10 Handling stolen goods (being 43 rounds of ammunition) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016

11 Possessing cartridge ammunition without licence or permit on at Carnegie on 16 August 2016

12 Carrying cartridge ammunition in a manner that was not secure and dangerous at Carnegie on 16 August 2016

It is likely that the informant will amend charges 4 and 5 to substitute the drug concerned…

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 Re Application for Bail by De Waij

Details

AGLC: Re Application for Bail by De Waij [2016] VSC 805
Case: [2016] VSC 805
Decision Date: 6 December 2016

CaseChat Overview and Summary

The case of Re Application for Bail by De Waij was heard in the Supreme Court of Queensland. The applicant, De Waij, sought bail under a show cause situation. The application arose from allegations of drug-related offences. The court was tasked with determining whether De Waij posed an unacceptable risk to the community if released on bail. Of particular relevance was De Waij's diagnosis of borderline personality disorder and the offer of a place at a drug and alcohol rehabilitation facility, which was not central to the alleged offending behaviour.

The court needed to decide if, in light of the diagnosis and the rehabilitation offer, De Waij presented an unacceptable risk to the community. It examined the nature and seriousness of the alleged offences, the likelihood of De Waij reoffending, and the adequacy of the proposed rehabilitation measures in mitigating any risk. The court also considered the public interest in De Waij's detention, including the need for general deterrence and protection of the community.

In delivering its decision, the court held that despite the diagnosis and the rehabilitation offer, De Waij posed an unacceptable risk to the community. The court found that the alleged offences were serious and that there was a significant likelihood of reoffending. The court also noted that the rehabilitation offer did not directly address the risk factors associated with the alleged drug-related offences. Therefore, the court refused bail, concluding that the public interest in ensuring community safety outweighed the applicant's right to liberty.

The final orders of the court were that the application for bail was refused. The court directed that De Waij remain in custody pending the outcome of the criminal proceedings against him.

Orders