Re Application for Bail by Tyson Searancke - [2017] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2017 0159

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for Bail by TYSON SEARANCKE

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2017
DATE OF JUDGMENT:	22 August 2017
CASE MAY BE CITED AS:	Re Application for Bail by Tyson Searancke
MEDIUM NEUTRAL CITATION:	[2017] VSC 489

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CRIMINAL LAW – Application for bail – Bail refused by magistrate who imposed short term of imprisonment – Applicant lodged appeal against sentence to County Court and sought bail pending appeal – Magistrate erred in holding that applicant required to show “exceptional circumstances” – Position of applicant differed from that of offender sentenced in County Court – Prima facie entitlement to bail – Bail not opposed – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	James Dowsley & Associates
For the Respondent	Mr S Shearer	Victoria Police

HIS HONOUR:

The applicant, Tyson Searancke, pleaded guilty in the Magistrates’ Court at Frankston to two charges of having failed to comply with reporting obligations, pursuant to s 46.1A of the Sex Offenders Registration Act 2004. He was brought before the Magistrates’ Court by way of summons. He answered that summons, and appeared at every mention hearing until the matter was finalised. The aggregate sentence of two months’ imprisonment imposed for these offences will have been completed before his appeal against sentence can be heard.

In these circumstances, the prosecution very properly does not oppose bail, and is content to have the applicant bailed upon his own undertaking to appear.

The gist of the charges brought against the applicant is that he failed to report having moved from his previous residence within one day of having done so, as per his reporting obligations. When questioned by police regarding this matter, he made full admissions, saying simply that he had overlooked the need to report a change of address.

Until he was sentenced for these offences, the applicant resided with his parents, as well as his sister and her children at his parents’ home in Frankston. He is 24 years of age.

On 10 August 2017, the applicant was sentenced to the aggregate sentence mentioned earlier, to be served immediately in respect of these two charges. He immediately lodged an appeal against sentence and applied for bail pending the hearing of his appeal. He was given the date of 16 October 2017 for his appeal to be heard at the County Court, in Melbourne. The magistrate refused bail. It seems that he was not satisfied that the applicant had established “exceptional circumstances” within the meaning of the Court of Appeal’s recent decision in Lane v The Queen.[1]
[1][2017] VSCA 170 (‘Lane’) .

In Lane, the applicant had been sentenced in the County Court to a term of three years’ imprisonment with 18 months of that term suspended for…

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.

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Details

Case: [2017] VSC 489
Decision Date: 22 August 2017

CaseChat Overview and Summary

Tyson Searancke applied for bail from the County Court of Victoria, following a decision by a magistrate to refuse bail and impose a short term of imprisonment. Searancke appealed the sentence to the County Court and sought bail pending the appeal. The legal issues before the court were whether the magistrate's decision required the applicant to demonstrate "exceptional circumstances" to be granted bail, and whether the applicant was prima facie entitled to bail pending the appeal.

The court found that the magistrate had erred in holding that the applicant required to show exceptional circumstances. The court determined that the position of the applicant differed from that of an offender sentenced in the County Court, as the applicant's case involved an appeal against sentence rather than a fresh conviction. The court held that the applicant was prima facie entitled to bail pending the appeal, as there was no opposition to the bail application. The court granted the applicant bail, noting the lack of opposition and the applicant's entitlement to appeal the original sentence.

The court's reasoning was based on the distinction between the applicant's situation and that of an offender sentenced in the County Court. The court emphasised the importance of the principle that bail is the general rule and imprisonment the exception, particularly in cases where an appeal against sentence is pending. The court found that the applicant had satisfied the criteria for bail, and the lack of opposition to the application further supported the grant of bail. The court granted the application for bail, allowing the applicant to remain on bail pending the outcome of the appeal against the original sentence.

Orders