Re Application for Bail by Patricia Mitchell - [2013] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0012 of 2013

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by PATRICIA MITCHELL

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JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2013
DATE OF JUDGMENT:	8 February 2013
CASE MAY BE CITED AS:	Re Application for Bail by Patricia Mitchell
MEDIUM NEUTRAL CITATION:	[2013] VSC 59

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CRIMINAL LAW – Bail – Applicant at risk of re-offending – Nature of offending not grave – Sentence if convicted would be significantly shorter than period on remand – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F. Todd	Aboriginal Legal Service
For the Respondent	Ms. J Warren	The Office of Public Prosecutions

HIS HONOUR:

The applicant is currently charged with six offences:

(1)two charges of obtaining property by deception on 1 December and 2 December 2012 contrary to s 81(1) of the Crimes Act1958 (‘the Act’);
(2)two charges of theft, both said to have occurred on 3 December 2012, contrary to s 74 of the Act;
(3)escaping from custody on 4 December 2012 contrary to s 479C(1)(a) of the Act; and
(4)obtaining a financial advantage by deception on 12 December 2012, contrary to s 82(1) of the Act.

I shall refer to these as ‘the current offences’.

The applicant unsuccessfully applied for bail on 20 December 2012 before the Melbourne Magistrates’ Court. She was remanded to appear at the Swan Hill Magistrates’ Court on 9 January.

When this application was filed, and indeed when the application was opened, bail was opposed on the basis that at the time of the alleged commission of these offences the applicant was already the subject of a grant of bail in relation to allegedly similar offending. I am unsure as to whether bail was opposed in the Magistrates’ Court on the same basis. It followed then that the onus on the application rested on the applicant to demonstrate why her detention in custody was not justified.[1]
[1]See s 4(4) of the Bail Act 1977.

I am now told that it appears that the applicant was not on bail when these offences were committed. The onus, therefore, rests with the Crown to show that the applicant ought not be granted bail. They seek to do that by endeavouring to demonstrate that the applicant is an unacceptable risk of committing further offences whilst on bail. The applicant has a prima facie right to bail.

The nature of the offending

On its face, the offending is trivial when compared with other cases that come before this Court in this type of application. It is alleged in Count 1 that the applicant feigned homelessness and illness and deprived a person of $30 on 1 December and $170 on 2 December. On 3 December, it is alleged she stole $50 from one person and $15 from another. Upon being apprehended by police on 4 December at her home,…

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 Patricia Mitchell

Details

AGLC: Re Application for Bail by Patricia Mitchell [2013] VSC 59
Case: [2013] VSC 59
Decision Date: 8 February 2013

CaseChat Overview and Summary

The matter before the Court was an application for bail by Patricia Mitchell, who was facing charges related to drug trafficking. The prosecution did not oppose the application for bail. The case was heard in the County Court of Victoria. Mitchell sought bail on the basis that she was at low risk of re-offending, the nature of the offending was not grave, and that the sentence, if convicted, would be significantly shorter than the period she had already spent on remand.

The central issue before the Court was whether the applicant was suitable for bail. In considering this, the Court was required to weigh the risk of re-offending against the severity of the potential sentence, and the length of time the applicant had already spent on remand. The Court also had to consider the likelihood of the applicant appearing at trial if granted bail. The prosecution did not oppose bail, and Mitchell provided evidence that she had a stable home environment and support network that would assist in preventing re-offending.

The Court held that the applicant was suitable for bail. It found that the risk of re-offending was low, the potential sentence, if convicted, was not severe, and the length of time spent on remand was excessive compared to the potential sentence. The Court accepted that the applicant had a stable home environment and support network, and was likely to appear at trial if granted bail. Accordingly, the Court granted the application for bail, subject to certain conditions including regular reporting to a bail supervisor and refraining from any involvement in criminal activity.

The Court made an order granting bail to Patricia Mitchell, subject to conditions including regular reporting to a bail supervisor, refraining from any involvement in criminal activity, and remaining at a specified address unless otherwise authorised. The applicant was also required to surrender her passport and any travel documents.

Orders