Re application for bail by Gastello - [2021] VSC 861

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0363

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by Marco Gastello

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JUDGE:	WHELAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2021
DATE OF JUDGMENT:	22 December 2021
CASE MAY BE CITED AS:	Re application for bail by Gastello
MEDIUM NEUTRAL CITATION:	[2021] VSC 861

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CRIMINAL LAW – Application for bail – Two charges of rape and two related charges in relation to one complainant – Two charges of sexual offending against two other complainants – One charge of knowingly possessing child abuse material - Applicant required to show compelling reason – Significant delay – Compelling reason established – Unacceptable risk – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Barker	Leanne Warren & Associates
For the Respondent	Ms F Holmes	Director of Public Prosecutions

HIS HONOUR:

On 19 October 2021, the applicant was committed for trial in the County Court on 14 sexual offence charges. A directions hearing is listed in the County Court on 19 January 2022. The applicant made an application for bail which was listed in the County Court on 3 December 2021. That date was vacated. The applicant then made an application for bail to this Court on 8 December 2021.

The charges upon which the applicant has been committed for trial are in two separate groups.

The first is a group of four charges, including two charges of rape, which concern a complainant I will refer to as ‘S’. These offences were allegedly committed on the night of 8–9 July 2017. S made a complaint to the police the next day.

Consequent upon S’s complaint, police undertook investigations, executed search warrants, and seized computers and a mobile phone of the applicant. They discovered a large number of photographs and some videos, many of which are close–up depictions of female genitalia. These photographs and videos eventually formed the basis of the second group of charges. There were 27 such charges, upon 10 of which the applicant has been committed for trial.

The applicant was charged with the four offences concerning S on 15 June 2020. He was charged with the other 27 offences on 18 December 2020. The delay between S’s complaint and the laying of charges was a result of police inaction for which the applicant was not responsible. The explanation given was that the informant and lead investigator, Detective Senior Constable Mark Payne, was moved to other duties and, in his absence, over a period of almost three years, nothing was done.

The earlier bail application

The applicant was granted bail on 15 July 2020 by Coghlan JA[1]. That hearing and grant of bail concerned the first group of four charges relating to the alleged offending against S. The applicant had not then been charged with the second group of offences.
[1]Re Application For Bail By Gastello [2020] VSC 548

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 Gastello

Details

AGLC: Re application for bail by Gastello [2021] VSC 861
Case: [2021] VSC 861
Decision Date: 22 December 2021

CaseChat Overview and Summary

Gastello applied for bail in relation to six charges of sexual offending. Four of the charges involved two complainants, one of whom was a child. The remaining two charges involved child abuse material. The applicant was required to show a compelling reason for the significant delay in applying for bail. The court considered the nature and gravity of the allegations, the safety of the community, the risk of reoffending, and the impact of the delay on the applicant and complainants. It found a compelling reason was established, but the risk to the community was unacceptable and bail was refused.

The legal issues before the court included whether the applicant had shown a compelling reason for the delay in applying for bail, and whether the risk to the community outweighed any compelling reason. The court noted that the charges were serious and involved multiple complainants. It considered the safety of the community and the risk of reoffending, and found that the compelling reason did not outweigh the risk. The court also noted that the delay had a negative impact on the complainants, and that the applicant had not shown any special mitigating factors.

The court found that the compelling reason for the delay was established, but the risk to the community was unacceptable. The court found that the applicant was likely to reoffend if released on bail, and that the impact of the delay on the complainants was significant. It considered the safety of the community and found that the risk of reoffending outweighed any compelling reason. The court concluded that bail should be refused, and the application was dismissed. The court made orders for the applicant to be detained until further order.

Orders