Re Bailey - [2021] VSC 299

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0104

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by DYLAN BAILEY

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21, 26 May 2021 and 9 June 2021
DATE OF JUDGMENT:	10 June 2021
CASE MAY BE CITED AS:	Re Bailey
MEDIUM NEUTRAL CITATION:	[2021] VSC 299

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CRIMINAL LAW — Application for bail — Charges of theft, driving whilst disqualified, committing an indictable offence on bail and other offences — Applicant a 22 year old First Nations person — Availability of residential rehabilitation — Exceptional circumstances established — Unacceptable risk not made out — Bail granted — Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4AA, 4A, 4D, 4E — Cases cited: Re Bail Application by Moloney (Unreported, Supreme Court of Victoria, 31 October 1990); Jason Joseph Roberts v The Queen [2021] VSCA 28; Re Chafer-Smith [2014] VSC 51; Re Martyn Moore [2019] VSC 344; Re Anthony Foster [2020] VSC 62; DPP v Akoka [2017] VSCA 214.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Liliana Dubroja	Slades & Parsons Criminal Law
For the Respondent	Mr Mark Sontag	Victoria Police

HIS HONOUR:

This is an application for bail by Dylan Bailey (‘the applicant’) in relation to 26 charges brought by Constable Nicholas Haylock (‘informant Haylock’), and five charges brought by Detective Senior Constable Catherine Ricardo (‘informant Ricardo’). This has been a more difficult matter to resolve because the evidence that was essential in support of the application took some time to surface and when it did was not in what I regard as proper form. In this Court it should be understood there is an expectation that applications of this kind must be prepared to a particular standard by all parties. As will be seen, that did not occur in this application.

The particulars of the informant Haylock and Ricardo charges are as follows:

Informant Haylock

(a) theft (five charges);[1]
[1]Contrary to s 74 of the Crimes Act 1958 (Vic).

(b) committing an indictable offence while on bail (six charges);[2]
[2]Contrary to s 30B of the Bail Act 1977 (Vic).

(c) driving whilst disqualified (three charges);[3]
[3]Contrary to s 30(1) of the Road Safety Act 1986 (Vic).

(d) attempted theft (two charges);[4]
[4]Contrary to s 321M of the Crimes Act 1958 (Vic).

(e) tampering with a motor vehicle (two charges);[5]
[5]Contrary to s 70(1) of the Road Safety Act 1986 (Vic).

(f) possessing of identification information;[6]
[6]Contrary to s 192C(1) of the Crimes Act 1958 (Vic).

(g) dealing with property suspected of being proceeds of crime (two charges);[7]

(h) using a fraudulent identification plate; [8] and

(i) handling stolen goods (four charges).[9]

[7]Contrary to s 195 of the Crimes Act 1958 (Vic).

[8]Contrary to s 72 of the Road Safety Act 1986 (Vic).

[9]Contrary to s 88 of the Crimes Act 1958 (Vic).

Informant Ricardo

(a) theft…

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 Bailey

Details

AGLC: Re Bailey [2021] VSC 299
Case: [2021] VSC 299
Decision Date: 10 June 2021

CaseChat Overview and Summary

The applicant in this case, Bailey, applied for bail on multiple charges including theft, driving while disqualified, committing an indictable offence on bail, and other related offences. Bailey, a 22-year-old First Nations person, was facing these charges in the Supreme Court of Victoria. The central issue was whether the court should grant bail to Bailey, considering his background and the availability of residential rehabilitation.

The court had to decide whether the exceptional circumstances provision under the Bail Act 1977 (Vic) applied and whether the risk of unacceptable harm to the community, if released, was substantiated. The court reviewed the evidence presented, including the applicant's history, the nature of the charges, and the possibility of rehabilitation. It was noted that Bailey had a history of offending and had been on bail previously, but the court also acknowledged the availability of residential rehabilitation as a mitigating factor.

The court found that the exceptional circumstances were indeed established due to Bailey's background and the potential for rehabilitation. The risk of unacceptable harm to the community was not proven to be significant enough to deny bail. Thus, the court granted the application for bail, taking into consideration the provisions of the Bail Act and relevant precedents. The decision was grounded in the principles set out in cases such as Re Bail Application by Moloney, Jason Joseph Roberts v The Queen, and others. The court emphasised the importance of balancing the rights of the accused with the need to protect the community.

Orders