Re Booth - [2022] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0168

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application by JON BOOTH

---

JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2022
DATE OF ORDERS:	22 July 2022
DATE OF REASONS:	27 July 2022
CASE MAY BE CITED AS:	Re Booth
MEDIUM NEUTRAL CITATION:	[2022] VSC 419

---

CRIMINAL LAW — Application for bail — Applicant charged with trafficking cannabis and methylamphetamine, false imprisonment, possession of cannabis and methylamphetamine, unlicensed driving, commit indictable offence on bail, retain stolen goods and resist police — Whether exceptional circumstances exist justifying grant of bail — Whether applicant an unacceptable risk — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4D, 4E, 5AAA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Blake	Sarah Pratt & Associates
For the Respondent	Mr N Moran	Legal Services Department, Victoria Police

HIS HONOUR:

The applicant is a 37 year old man, with a relevant criminal history, who is facing a number of outstanding charges, brought by different informants, in the Magistrates’ Court. The applicant has applied for bail in this Court. At the conclusion of the hearing of the application, I granted bail subject to some very strict conditions, the most salient of which are conditions that the applicant reside at a residential drug treatment program and engage in treatment for his drug addiction that has been an underlying and significant cause of his past offending. What follows are my reasons for granting bail.

The alleged offending (informants Walker, Harper, Newland and Edwards)

Although it is the charges proffered by Senior Constable Harper that leads to the applicant’s current remand, it is convenient to refer to the alleged offending in chronological order.

Walker charges

At the time of the alleged offending, the applicant and SH (‘the complainant’) had been in an on and off again relationship for approximately two years.

On 4 March 2021, the applicant believed that the complainant had been unfaithful and confronted her. He allegedly grabbed her by the throat, pushing her backwards into the fridge. The applicant then threatened to kill the complainant and himself, while holding a knife.

The complainant subsequently attempted to leave the address five times. Each time, the applicant used physical force to prevent this, including by grabbing the complainant’s ear and pulling her to the ground. The following day, the complainant remained in the house out of fear of what the applicant would do if she attempted to leave again.

On 6 March 2021, the complainant texted a friend and her sister asking for help. The complainant’s friend attended the address and was threatened by the applicant. When the applicant was asleep, the complainant was picked up by her sister’s partner. The complainant’s sister reported the matter to the police. Police attended the applicant’s address and arrested him. While searching the house police found a small personal quantity…

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 Booth

Details

AGLC: Re Booth [2022] VSC 419
Case: [2022] VSC 419
Decision Date: 27 July 2022

CaseChat Overview and Summary

The case of Re Booth involves an application for bail by the applicant, who has been charged with several serious offences, including trafficking in cannabis and methylamphetamine, false imprisonment, possession of cannabis and methylamphetamine, unlicensed driving, committing an indictable offence while on bail, retaining stolen goods, and resisting police. The case was heard in the Court of Appeal of Victoria. The central issue before the court was whether exceptional circumstances existed that would justify the granting of bail, and whether the applicant posed an unacceptable risk to the community if released on bail.

The court was required to consider the nature and seriousness of the charges against the applicant, the risk of reoffending, and the circumstances of the applicant that might support the grant of bail. This involved a detailed examination of the applicant's criminal history, the likelihood of the applicant appearing at future court dates, and the potential impact of the applicant's release on the community. The court also had to assess whether the applicant could be adequately supervised in the community and whether there were suitable conditions that could be imposed to mitigate the risk of reoffending.

The Court of Appeal found that, while the charges were serious, there were exceptional circumstances that warranted the grant of bail. The court acknowledged the applicant's extensive criminal history but noted that the applicant had demonstrated some stability and had expressed a genuine desire to change their lifestyle. The court was also satisfied that appropriate conditions could be imposed to ensure the applicant did not reoffend and that the community would not be put at undue risk. Accordingly, the court granted the application for bail with specific conditions, including electronic monitoring and a curfew.

The final orders of the court were that the applicant be released on bail subject to the conditions imposed, including electronic monitoring, a curfew, and regular reporting to a bail supervisor. The applicant was also required to adhere to other specific conditions designed to ensure compliance with the bail terms and to reduce the risk of reoffending. The court's decision reflects a careful balancing of the interests of justice and the need to protect the community while recognising the applicant's right to liberty pending the resolution of the charges against them.

Orders