Re Aucello - [2019] VSC 252

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0069

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by ANTHONY AUCELLO

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2019
DATE OF JUDGMENT:	17 April 2019
CASE MAY BE CITED AS:	Re Aucello
MEDIUM NEUTRAL CITATION:	[2019] VSC 252

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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Whether exceptional circumstances justifying bail – Whether applicant, if bailed, presents an unacceptable risk –– Release on supervised bail program supported by Court Integration Service Program – Exceptional circumstances established – Applicant a risk, but risk can ameliorated with conditions of bail – Bail granted with conditions – Bail Act 1977 (Vic) ss 3AAA, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Burt	Sarah Pratt & Associates
For the Respondent	Mr A Singh	Victoria Police Legal Services

HIS HONOUR:

This is an application by Anthony Aucello (the ‘applicant’) pursuant to the Bail Act 1977 (Vic) (the ‘Act’). As at the hearing of this application, he has spent 226 days in pre-sentence detention. To support his release on bail, the applicant relies on the presence of exceptional circumstances and the availability of bail conditions that would reduce any potential risk of his release to an acceptable level.

Procedural History

On 6 March 2018, the applicant was arrested following the execution of a search warrant in his Southbank apartment. The search located, amongst other things, a number of drugs; false or blank identification documents and bank cards; cash; and a ‘ledger’, alleged to contain notes regarding drug debts and practiced false signatures.

The execution of the search warrant was proceeded by an incident on 4 March 2018 when the applicant is alleged to have been captured on CCTV removing registration plates from a car in the carpark of his apartment building.

On 7 March 2018, the day after his arrest, the applicant was charged with:

· theft from a motor vehicle;

· trafficking a drug of dependence;

· possessing a drug of dependence (five counts);

· handling stolen goods;

· dealing with property suspected of being the proceeds of crime;

· processing identification information;

· going equipped to steal; and

· possessing a prohibited weapon without exemption.

On 4 April 2018, the applicant was granted bail in relation to these charges at the Melbourne Magistrates' Court. His bail included a condition that he reside with his parents’ residence in Rosebud West (a suburb now called Capel Sound) and provide a $10,000 surety. The present application proposes effectively the same conditions.

On 29 May 2018, the applicant was further charged with two counts of possessing a drug of dependence, and three counts of trafficking a drug of dependence, both flowing from the same incident.

On 8 June 2018, the applicant was granted a variation of his bail conditions to allow him to reside in…

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 Aucello

Details

AGLC: Re Aucello [2019] VSC 252
Case: [2019] VSC 252
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of Re Aucello involved the applicant, Aucello, who was charged with offences under Schedule 2 of the relevant legislation. The application was for bail, and the court was required to determine whether exceptional circumstances existed justifying the granting of bail and whether the applicant, if bailed, presented an unacceptable risk to the community. The case was heard in the County Court of Victoria.

The legal issues before the court were twofold. Firstly, whether the exceptional circumstances required by statute were present to justify bail. Secondly, if the applicant was a risk to the community, whether that risk could be ameliorated by the imposition of bail conditions. The court had to weigh the potential for the applicant to reoffend against the interests of justice in granting bail.

The court found that exceptional circumstances did exist in this case, and that while the applicant did present a risk to the community, that risk could be managed by imposing specific bail conditions. The court noted the support of the Court Integration Service Program and the supervised bail program as mitigating factors. Consequently, the court granted bail with conditions designed to reduce the risk to the community while allowing the applicant the opportunity to prepare for their trial.

The final orders of the court were that the applicant be granted bail subject to a number of conditions, including participation in the supervised bail program, adherence to a curfew, and regular check-ins with the Court Integration Service Program. These conditions were intended to balance the applicant's right to liberty with the need to protect the community.

Orders