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:

1. 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. 

1. 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.

1. 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. 

1. 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.

1. 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’) .

1. 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 three years.  The offending took place in 1980 and 1981, and the applicant was, when sentenced, aged 70.  On 7 June 2017, the applicant filed an application for leave to appeal against sentence.  He then applied to the Court of Appeal for bail pending the hearing and determination of his application for leave to appeal.  

1. The Court of Appeal, in refusing bail, referred to Re Zoudi.[2]  In that case, a five member bench said that bail pending appeal to the Court of Appeal would only be granted where “exceptional circumstances” were shown.  In determining whether such “exceptional circumstances” existed, it was relevant to consider the likely expiry, before the appeal could be heard, of the whole or a substantial portion of the sentence. 

   [2](2005) 14 VR 580.

1. Returning, for the moment, to the current matter, it seems that the applicant suffers from a mild intellectual disability, a history of depression and suicidal ideation.  He also has a history of drug abuse.  So much was confirmed in a psychiatric report prepared by Dr Lester Walton, dated 4 July 2016.  Dr Walton is of the view the applicant is not a paedophile, and that it would be counter-productive to cajole him into a sex offenders treatment program.

1. In my opinion, it is clear that the magistrate’s reference to Lane, and its requirement that ‘exceptional circumstances’ be shown in order that bail pending appeal be granted, was misconceived.  Lane concerned an application for leave to appeal from the County Court to the Court of Appeal.  The principles governing bail pending appeal from the Magistrates’ Court to the County Court, where the appeal is by way of hearing de novo, are quite different. 

1. The relevant legislative regime governing appeals to the County Court is that set out in ss 254 and 265 of the Criminal Procedure Act. 

1. In particular, s 254(1) provides as follows:

(1)Subject to subsection (2), a person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—

(a)       conviction and sentence imposed by the court; or

(b)       alone.

1. Section 265 states:

Bail pending appeal

(1)If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant—

(a)may apply to the Magistrates’ Court to be released on bail; and

(b)if he or she makes an application under paragraph (a), must give reasonable notice of the application to the respondent to the appeal.

(2)If an application is made under subsection (1), the Magistrates’ Court must either grant or refuse bail as if the appellant were accused of an offence and were being held in custody in relation to that offence and, for this purpose, the Bail Act 1977 (with any necessary modifications) applies.

1. The magistrate in the present matter proceeded upon the erroneous assumption that the applicant had to show “exceptional circumstances” in order to be considered for bail.  That was not so.  He had a prima facie entitlement to bail, and bail should have been granted. 

1. There now being no opposition to bail, and it not being suggested that the applicant is likely to abscond, or commit further offences whilst on bail, I propose to order that he be released forthwith, upon his providing an undertaking to appear at the County Court at the hearing of his appeal against sentence.

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