Re Bertucci - [2020] VSC 88

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0022

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an Application for Bail by Anthony BERTUCCI

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2020
DATE OF JUDGMENT:	2 March 2020
CASE MAY BE CITED AS:	Re Bertucci
MEDIUM NEUTRAL CITATION:	[2020] VSC 88

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CRIMINAL LAW - Bail – Breaches of family violence intervention order – Recklessly causing injury – Failing to answer bail – Committing an indictable offence whilst on bail – Prior convictions for family violence offences, failing to answer bail, and committing indictable offence whilst on bail – Whether previous history of family violence towards same complainant not resulting in findings of guilt should be taken into account – Whether exceptional circumstances exist – Whether unacceptable risk of offending or endangering the safety of a person, re-offending, or interfering with a witness – Favourable attitude of complainant to grant of bail important but not determinative – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson QC	Doogue + George Defence Lawyers
For the Respondent	Ms A Phelan and Ms B Cowley	Legal and Prosecutions Specialists Branch, Victoria Police

HIS HONOUR:

By summons dated 19 April 2019, Anthony Bertucci (‘the applicant’) was charged with contravention of a family violence intervention order (‘FVIO’) (18 charges) and persistent contravention of a FVIO. Those charges relate to events alleged to have occurred between 19 November 2018 and 5 February 2019 (‘the informant Sidorovska matter’).

On 24 May 2019, the applicant failed to appear at the Sunshine Magistrates’ Court in answer to the summons and a bench warrant was issued for his arrest. He was arrested on 8 August 2019 and released on bail by Victoria Police. On 23 September 2019, after the applicant again failed to appear in the Sunshine Magistrates’ Court, an order was made forfeiting the applicant’s bail and a further bench warrant was issued for his arrest.

On 2 October 2019, the applicant was arrested and charged with recklessly causing injury, unlawful assault (2 charges), contravention of a FVIO, failing to answer bail and committing an indictable offence whilst on bail (‘the informant McKay matter’). These charges relate to events alleged to have occurred on 23 September 2019 and 1 October 2019.

The applicant has been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges. By notice dated on 11 February 2020, the applicant seeks a grant of bail in this Court. The applicant’s matters are next listed for a contested hearing in the Sunshine Magistrates’ Court on 28 April 2020.

The parties accept that the applicant is charged with Schedule 2 offences under the Bail Act 1977 (‘the Act’) in the informant McKay matter, which are alleged to have been…

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 Bertucci

Details

AGLC: Re Bertucci [2020] VSC 88
Case: [2020] VSC 88
Decision Date: 2 March 2020

CaseChat Overview and Summary

In the matter of Re Bertucci, the applicant faced a bail application before the Magistrates' Court of Victoria, seeking to overturn a decision denying bail. The applicant had been charged with recklessly causing injury and breaching a family violence intervention order. The case involved a complex history of family violence, including previous convictions and alleged offences against the same complainant, although no prior findings of guilt. The central issue before the court was whether the applicant's history of violence, despite not resulting in convictions, warranted a denial of bail under the Bail Act 1977. The court had to determine if exceptional circumstances existed that would justify granting bail and if there was an unacceptable risk of re-offending or endangering the safety of a person.

The court meticulously examined the applicant's history, considering both the nature and frequency of the alleged offences, and the complainant's stance, who favoured bail. Despite the complainant's attitude, the court held that the history of family violence, even without formal convictions, was a significant factor. The court concluded that the applicant's past behaviour, combined with the risk of re-offending and potential interference with witnesses, constituted an unacceptable risk to the community. The court found that exceptional circumstances were not established, and the risk of re-offending was too high, leading to the refusal of bail.

The court's reasoning was grounded in the statutory provisions of the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4AA, 4A, and 4E, which address the assessment of risk and exceptional circumstances. The court considered the cumulative effect of the applicant's history and the likelihood of re-offending, concluding that the risk to the complainant and the community was too significant to grant bail. The court's decision was definitive, and the applicant's bail application was refused, highlighting the importance of the safety and protection of potential victims in bail determinations.

In conclusion, the court denied the applicant bail, emphasising the need to protect the complainant and the community from potential harm. The court's decision was based on the applicant's history of family violence, the risk of re-offending, and the lack of exceptional circumstances that would warrant granting bail. The final orders reflected the court's determination that the applicant remained a risk to the complainant and the broader community, thereby upholding the principles of public safety and justice.

Orders