Re Application for Bail by Traverso

[2015] VSC 386

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0091

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an application for bail by SILVANO TRAVERSO

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JUDGE:	Bongiorno JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2015
DATE OF JUDGMENT:	10 July 2015
CASE MAY BE CITED AS:	Re Application for Bail by Traverso
MEDIUM NEUTRAL CITATION:	[2015] VSC 386

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CRIMINAL LAW – Application for bail – Whether applicant had to show cause – Whether applicant an unacceptable risk – No point of principle – Bail Act 1977, s 4(4)(ba)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Ferdinands, Victoria Police
For the Accused	Mr G Steward	Tony Hargreaves and Partners

HIS HONOUR:

1. Silvano Traverso, a 60 year old farmer, is facing a number of charges of violence to a woman with whom, for some time, he had a romantic attachment.  These charges include false imprisonment, assault and a number of offences under the Family Violence Protection Act 2008.  He has been in prison on remand since 15 May 2015 and now seeks bail.

1. Because some of the charges he faces are for offences against the Family Violence Protection Act 2008, both the applicant and the respondent proceeded on the basis that the applicant was in a ‘show cause’ position by reason of s 4(4)(ba) of the Bail Act 1977.  This section provides that, in certain circumstances where a person is charged with breaching the Family Violence Protection Act 2008, the onus of satisfying the Court that bail should be granted rests on the applicant.

1. I asked counsel how the prosecution satisfied the requirements of that section given that the applicant had not been convicted of any offence of violence during the past 10 years and there was no evidence upon which the Court could be satisfied that, on an occasion separate to those in respect of which he is now charged, he had used or threatened violence.

1. Upon the prosecution having this problem in the prosecution case pointed out to him, he quite properly desisted from arguing that the applicant carried the onus of proving that his detention in custody was not justified, thus conceding that the applicant was entitled, prima facie, to be released on bail.

1. The prosecutor then put his case on the basis that the applicant posed an unacceptable risk of offending if he were not detained.  He fairly and properly argued that the applicant’s alleged behaviour suggested that he was at risk of further offending with respect to the same victim because of the nature of the offending with which he is now charged.  The victim was, he argued, a woman who lived alone and was accordingly vulnerable.  He submitted that the applicant’s alleged behaviour was manipulative and that he treated her in such a way that her fears were justified.

1. The prosecution referred to a psychologist’s report on the victim that was before the Court and to the victim’s conversations on the topic with the police informant, Senior Constable Burgermeister.  He conceded that to some extent the victim was complicit in some of the breaches of intervention orders alleged, although he explained this as being possibly because of her wish to ‘keep the peace’.

1. The conversation between Senior Constable Burgermeister and the alleged victim of violence included a statement of belief that the applicant had access to firearms, either his own or his father’s.  The applicant in fact denies having any access to firearms.  His counsel said from the Bar table that the belief, which was apparently shared by the prosecution and the defence, that he had a gun licence was also not correct.  He is said to have no such licence, although his father does have firearms, legally stored, and is licensed to have them, as he is also a farmer.  The prosecutor also referred to a risk that the applicant might intimidate witnesses if he were released.

1. At the Court’s request, enquiries were made by both parties of the Latrobe Valley Magistrates’ Court as to the probable timetable for the disposition of the applicant’s case.  They were informed that the matter was likely to be mentioned in August with a final hearing not likely until February next year.

1. Counsel for the applicant argued that, having regard to his having been in custody now for two months, it could well be that if the applicant was not bailed now he may be incarcerated for longer than any sentence that might be ultimately imposed.  Counsel suggested that a sentence involving a Community Corrections Order, together with time already served, would not be unlikely in the circumstances.  Thus, he submitted, bail should be granted, particularly as a further consequence of not being bailed would be an inability to look after his and his father’s stock on their respective farms, which would lead to significant financial losses for both of them.

1. Counsel for the applicant conceded that a grant of bail should involve significant restrictive conditions to allay the alleged victim’s fears.

1. Having considered all of these matters I have come to the conclusion that the applicant should be released on bail but with strict conditions to ensure his non-association of any kind with the alleged victim of his violence.  I invited the parties to confer on those conditions, which they appropriately did.

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