Re Carthy
[2025] VSC 23
•4 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0004
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by Justin CARTHY |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2025 |
DATE OF JUDGMENT: | 4 February 2025 |
CASE MAY BE CITED AS: | Re Carthy |
MEDIUM NEUTRAL CITATION: | [2025] VSC 23 |
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CRIMINAL LAW – Bail – Applicant charged with arson of a shop allegedly in the context of the ongoing ‘tobacco wars’ – Related dishonesty and other offending – Prima facie entitlement to bail – Substantial and relevant criminal history – Applicant on bail for other alleged offences and subject to a community correction order at time of alleged offending – Family support, stable residence, employment and bail guarantee available to applicant – Whether risk posed by applicant can be mitigated to an acceptable level by the imposition of conditions – Unacceptable risk established by respondent – Bail refused - Bail Act 1977 ss 1B, 3AAA, 4, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Slattery | KPT Defence Lawyers |
| For the Respondent | Mr A Sprague | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on a large number of charges laid against him by Detective Leading Senior Constable Andrew Luke. The Nominal Informant is Detective Senior Constable Matthew Watts. The charges are as follows:
i. Criminal damage by fire (arson) – 7 July 2024
ii. Criminal damage by fire (arson) – 7 July 2024
iii. Theft of a motor vehicle – 7 July 2024
iv. Theft of a motor vehicle – 16 July 2024
v. Theft (diesel) – 11 July 2024
vi. Theft (number plate) – 5 July 2024
vii. Possession of a drug of dependence (cannabis) – 16 July 2024
viii. Possession of a prohibited weapon (taser) – 16 July 2024
ix. Failing to provide information or assistance for a data warrant – 16 July 2024
It is agreed between the parties that none of the charges faced by the applicant would enliven the two step bail process set out in section 4AA of the Bail Act 1977 (‘the Act’), and therefore the position is that this is a case in which the applicant has a prima facie entitlement to a grant of bail, pursuant to s 4 of the Act.
That is a reasonably rare position where applications for bail to this Court are concerned.
Procedural history
The applicant was arrested and charged with these matters on 16 July 2024. An application for bail to the Bail and Remand Court was refused on that date,[1] on the basis of an unacceptable risk that the applicant would endanger the safety or welfare of a person.
[1]The Applicant’s Affidavit in Support of an Application for Bail, affirmed 23 December 2024, states that bail was refused on 17 July 2024 on page [2], and 16 July 2024 on page [8]; the latter appeared the agreed position between the parties during the application. Nothing turns on this discrepancy.
Further unsuccessful applications for bail were made in Mildura Magistrates’ Court on 20 August and 21 November 2024. On each occasion, bail was refused for the same reason as in the initial application.
At a committal mention held in Mildura on 20 November 2024, the committal hearing was set down for hearing in Bendigo Magistrates’ Court on 22 May 2025.
It is expected that the matter may not come on for trial until sometime in 2026.
A co-accused named Ghady Almuzain faces a number of the same charges as the applicant, including the two charges of arson. He unsuccessfully applied for bail, and remains on remand
Other pending charges and community correction order (‘CCO’)
The applicant also faces a large number of outstanding charges laid by Detective Senior Constable Ebony Allen for dishonesty offences alleged to have been committed in May and June of 2024. A list of these charges is set out in the Affidavit in Support of an Application for bail and the charges are summarised in the remand summary exhibited as Exhibit XXX-1 to the Affidavit in Support. The applicant was charged initially on 13 June 2024 and released on bail from Werribee Police Station on the same day. A number of the charges laid by Detective Senior Constable Allen are alleged to have been committed after that grant of bail.
A further pending charge of theft of a motor car was laid by Senior Constable David Zardo. The offence date was alleged to be 22 May 2024. Again, the circumstances of this alleged offence were set out in material before the court.
On 8 December 2023, the applicant was sentenced in Melbourne Magistrates’ Court in respect of numerous offences including two charges of contravening a conduct condition of bail, theft of a motor vehicle, being a prohibited person in possession of a firearm, handling stolen goods, drug offences, failing an oral fluid test within three hours of driving, and contravening a CCO. He was sentenced to be imprisoned for an effective 120 days, with a declaration made in respect of 120 days pre-sentence detention, and to a CCO for 24 months with various conditions including conditions requiring him to undergo supervision, and assessment and treatment for drug abuse or dependency as directed.
The applicant was subject to this CCO at the time of the current alleged offending.
Communication between the applicant’s case manager in connection with the CCO and the informant, set out in the Nominal Informant Response to Application for Bail, exhibited to the Affidavit in Response, indicates that in the period of time between the commencement of the CCO on 8 December 2023 and the applicant going into custody on 16 July 2024, the applicant accrued one unacceptable absence from supervision, and five unacceptable absences from drug treatment, including testing.
The alleged offending
The current allegations against the applicant are set out fully in the police summary contained in Exhibit MPT-1, exhibited to the Affidavit in Response sworn by Michael Thackaberry of the Office of Public Prosecutions on 29 January 2025.
In short, it is alleged, in respect of the main charges, that the applicant and co-offender travelled in convoy in two stolen vehicles, one of them a Nissan Navara utility, from Melbourne to Cohuna, in north west Victoria. Once in Cohuna, they allegedly tried to ram the utility into the front of Cohuna Flowers & Gifts Tobacconist in King George Street. Heavy duty bollards at the front of the shop largely prevented the vehicle from entering the shop. The applicant and his co-offender allegedly then attended at the front of the premises, setting fire to the premises and the utility vehicle. The Summary of Material Facts from the police hand-up brief, Exhibit MPT-1, indicates that the targeted premises were destroyed, and that neighbouring businesses sustained substantial damage and loss of business. It is stated that ‘the total damage [to] the building and neighbouring business[es] is estimated at approximately 1.5 million dollars’. Accompanying photographs illustrate graphically the very substantial damage caused by the offending.
It is not necessary, for current purposes, to summarise the other charges the subject of the present application. Suffice to say that the two charges of theft of a motor vehicle concern the stolen vehicle allegedly driven by the applicant and the co-offender to the scene of the arson of the shop, and that most of the other charges also relate to the alleged arson.
Personal circumstances
The applicant was born on 14 July 1987 and is now aged 37. He is the youngest of six children. He attended Heathmont Secondary College to the Year 9 level before being expelled for smoking cannabis. Thereafter, he found employment as a welder, roof tiler, renderer, and in other labouring jobs. There was no information before the Court about any employment in recent years. The applicant commenced using cannabis from an early age and went on to be a polysubstance abuser for many years, up until the present. Throughout his life, the applicant has continued to have the benefit of family support, as the evidence given by his mother and sister before me indicated.
Criminal history
The applicant has a lengthy criminal history stretching from when he was a young person until the present time. The history spans no fewer than 24 separate court hearings encompassing convictions for a wide variety of criminal offending, including crimes of serious violence such as intentionally causing serious injury and false imprisonment, dishonesty offences including many charges of theft and one of aggravated burglary, weapons offences including one charge of being a prohibited person in possession of a firearm, property damage offences, drug offences, driving offences, stalking offences, persistent breaches of family violence intervention orders, and offences against the Act. He has accrued seven convictions for failing to answer bail, six for breaching conduct conditions of bail, and one for committing an indictable offence while on bail. He has on numerous occasions contravened the conditions of CCOs made by courts. The applicant has been sentenced to terms of imprisonment on a number of occasions.
The law
The guiding principles of the Act are spelt out in s 1B. These include:
1) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
2) taking account of the presumption of innocence and the right to liberty.
Subsection (2) expresses the intention of the Parliament that the act is to be applied having regard to the guiding principles.
As already indicated, this is a case in which the applicant has a prima facie entitlement to bail under s 4. However, s 4E of the Act requires me to refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(iaa) commit a Schedule 1 offence or a Schedule 2 offence; or
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(i)otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
The prosecution bears the burden of satisfying me as to the existence of an unacceptable risk. In considering whether a risk is an unacceptable one, I am required to take into account the surrounding circumstances, as non-exhaustively set out in s 3AAA(1), and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
The evidence
Detective Senior Constable Watts gave evidence of his involvement in various aspects of the investigation. He is a member of the Lunar Taskforce, which was formed specifically to target the ongoing illicit tobacco conflict and the violence and repeated arsons which have stemmed from that. In examination-in-chief, he elaborated on the concerns felt by police for the safety of the public which may be posed by the applicant. The target of this arson was a shopping strip. Residents sometimes stay above or at the rear of shops in such strips, and residential premises are often located close by, leading to the risk of injury. Later in his evidence, Detective Senior Constable Watts noted the fact that the applicant has been in custody for four years and three months of the last eight years and three months.
In cross-examination, the witness confirmed that the applicant’s mother, who was later to give evidence, had no criminal convictions, and that he was not aware of any criminal convictions against the applicant’s sister. He attested to the applicant’s recent positive bail history. He confirmed that there was no indication of any members of the public having been around at the time of the arson. He indicated that police believe that the co-offender has a direct link to organised crime elements responsible for the ongoing tobacco conflict, and that the applicant’s connection is only through the co-offender, who is believed to have recruited him into the current venture.
In re-examination, the Nominal Informant elaborated on his concern as to risks to safety posed by the applicant, noting some specific incidents of violence and injury believed to have flowed directly from the ongoing tobacco conflict. He made the point that the police concerns about the applicant are not limited to the current offending, but are related to some of his earlier criminality.
In response to some question from me, DSC Watts indicated that a particular basis for his belief that the current offences are connected with the ongoing tobacco conflict, aside from the circumstances and target of the arson, is the fact that footage obtained from the home of the co-offender shortly after the offending showed him in the presence of a well-known person believed to be involved in the conflict. The store targeted in the present case is believed to have been selling illicit tobacco products.
Yvonne Carthy, the mother of the applicant, gave evidence before me in which she indicated her ongoing support for her son, and expressed a willingness to offer a bail guarantee of $10,000, have the applicant reside in the family home with her should he be bailed, and report him to the police if he breached bail conditions. She stated her view that drug addiction was the cause of her son’s prior criminal offending. She gave evidence that she and her partner would not tolerate any drug use in their home. And she also confirmed that she would be prepared to drive the applicant to work, should that be necessary.
Jane Carthy, the applicant’s sister, gave evidence of her willingness to offer employment to the applicant in her domestic cleaning business. She gave an undertaking to notify the applicant’s mother, the bail guarantor, of any concerns which arose as to the applicant’s compliance with bail conditions.
Marie Sheridan, the partner of the applicant, and mother of their 14 month old son, informed the Court of the serious injuries she suffered in an accident some years ago and the resulting physical impediments she suffers. She spoke also of her difficult financial situation. If the applicant was released on bail and could find employment, he would be able to assist her in the care of their child, and assist her financially as well. She indicated in cross-examination that while the applicant was living with her at the time of the CCO made in December 2023, she had not been aware of his failure to attend appointments.
Applicant’s submissions
Mr Slattery, for the applicant, relied upon a combination of his written and oral submissions in support of the contention that the prosecution has failed to establish the existence of an unacceptable risk in this case.
He submitted that whether a risk is unacceptable depends upon the probability of the risk eventuating, the likely harm if it does, whether conditions of bail mitigate any risk, and whether that risk is unacceptable when regard is had to all the surrounding circumstances. Whilst it might be thought that the applicant poses some risk of further offending if granted bail, the nature of the risk he poses means that it is not unacceptable. He drew the attention of the Court to statements of Maxwell P, in Re Asmar[2] and Re Application for Bail by Rebecca Dillon,[3] and Fox J in Burton v R,[4] which he relied on in support of his contentions. He noted that the Court of Appeal in FT (a pseudonym) v The King (‘FT’)[5] had stated that some risk of offending on bail, even a high risk, may not be unacceptable for the purposes of the Act.
[2][2005] VSC 487 [26].
[3][2019] VSC 80 [46].
[4](1974) 3 ACTR 77 [78].
[5][2024] VSCA 90 [57] (‘FT’) (Beach, McLeish and Niall JJA).
Mr Slattery submitted that it is necessary to look past the seriousness of the alleged offences when assessing the unacceptable risk of future offences, and make an assessment of future risk and what the nature of that risk is. The risk posed by the applicant does not involve potential consequences so serious and of such widespread effect that the possibility he may commit a crime while on bail is an important consideration.
Mr Slattery noted that the applicant’s criminal history reveals no Schedule 1 offences and only three Schedule 2 offences, although he later conceded that there were two offences of stalking which in the circumstances would also be Schedule 2 offences.
He submitted that the applicant’s recent criminal offending is largely for dishonesty and other offences indicative of drug addiction, and driving offences. Indeed, Mr Slattery submitted that the entirety of the applicant’s criminal history is reflective of the actions of somebody addicted to drugs, and he emphasised the importance of conditions designed to treat the applicant’s drug addiction and ensure his continued abstinence, if granted bail.
He submitted that it was the applicant’s co-offender, rather than the applicant himself, who was believed by the police to be connected to persons involved in any ‘tobacco wars’. That co-offender is on remand.
The applicant’s most recent conviction for failing to answer bail was almost ten years ago, when he was only 28. In more recent years, he has successfully answered bail on numerous occasions. Also, it was submitted that the applicant’s convictions for committing indictable offences while on bail, and breaching conduct conditions, are quite old.
In addition, the offer of a bail guarantee of $10,000 from the applicant’s mother is highly significant. The applicant would have a strong sense of obligation towards her, and he would be living with her, and she would have a direct interest in ensuring that he complies with bail obligations. Mr Slattery referred to the statements of Gillard J in Mokbel v DPP (Vic) and DPP (Cth)[6] describing a surety as ‘the eyes and ears of the court’.[7]
[6](2006) 14 VR 405.
[7]Ibid [38].
Mr Slattery submitted that having his mother as bail guarantor, and his sister as his employer, willing to report any infractions to the mother, would ‘nip in the bud a lot of the risk that [the applicant] presents’.[8]
[8]Transcript 68.1.
In respect of the current offending, whilst acknowledging its seriousness, Mr Slattery submitted that in light of the timing of the arson and the absence of any evidence that any person was close by, ‘there wasn’t a substantial risk to the safety of any person’.[9]
[9]Ibid 75.13.
Mr Slattery also relied, to some extent, on the hardship caused to the applicant’s partner by his current incarceration.
Mr Slattery proposed a substantial suite of bail conditions which he submitted would be sufficient to mitigate the risk posed by the applicant so that it would not be unacceptable. Some of these conditions were focussed on the drug addiction issues of the applicant, designed to ensure not only that he would receive adequate treatment and counselling, but also to ensure continued abstinence. It was submitted that the fact of the applicant, for some months, receiving buprenorphine injections, places the applicant in a better position than he was at the time he was sentenced to the CCO in late 2023, and during the first half of 2024.
Mr Slattery emphasised the importance of the applicant having employment with his sister available to him, and the availability to him of a stable address and family support. He also submitted that if released on bail, the applicant would be able to provide support to his partner in the care of their young child.
In respect of the applicant’s most recent CCO, Mr Slattery relied on the statement of the applicant’s community corrections officer that the applicant’s ‘general attendance for supervision was satisfactory’. As for the CCO he received on 22 November 2022, he ‘substantially complied’ with that, it was submitted.
It was further submitted that the applicant is better placed to comply with a grant of bail now given the 200 days he has spent on remand, the proposed bail conditions including the bail guarantee, and all of the surrounding circumstances.
Mr Slattery emphasised the importance of the fact that if not granted bail, the applicant would spend at least 18 months in custody, while presumed innocent.
In conclusion, it was submitted that the risk posed by the applicant is not unacceptable when regard is had to the nature of the risk, the proposed bail conditions, and the surrounding circumstances.
Mr Sprague, for the respondent, relied largely upon the contents of the Affidavit in Response sworn by Mr Thackaberry, and the exhibits to that affidavit, in advancing the prosecution contention that the applicant, if released on bail, would pose an unacceptable risk of committing a Schedule 1 or Schedule 2 offence, otherwise endangering the safety or welfare of the public, or failing to surrender into custody. He supplemented the affidavit with relatively brief oral submissions.
The affidavit helpfully summarised salient aspects of the prosecution case.[10] Mr Sprague described the case as a ‘very strong’ one.[11]
[10]Affidavit in Response to an Application for Bail, sworn 29 January 2025 [16].
[11]Transcript 88.13.
Mr Sprague submitted that it is highly likely that any sentence the applicant would receive in respect of the main charges of arson would well exceed time spent on remand.
He submitted that the likely delay in this case would not be inordinate.
In respect of the relevance of the applicant’s drug use, Mr Sprague submitted that there is little evidence before the Court as to any connection between that and the alleged offending, and nor was there much evidence as to the current position. As for supports available to the applicant, including his residing with his mother, and her offer to be a bail guarantor, Mr Sprague submitted that whilst such offers of support are genuine and well-meaning, they would give the Court little confidence that the applicant would comply with bail conditions and not further offend.
In respect of any potential treatment or bail support services, nothing is proposed in terms of direct supervision or support.
In responding to Mr Slattery’s reliance upon a passage in FT to the effect that ‘some risk of offending on bail, even a high risk, may not be unacceptable for the purposes of the Act’, Mr Sprague noted that the paragraph in which that proposition appears goes on to state:
The calculus involves an assessment of the probability of the risk eventuating and the likely harm if it does. Here, both of those integers weigh heavily against the appellant.[12]
[12]FT (n 5) [96].
Mr Sprague, whilst noting that the facts of this case are different from those in FT, submitted that the position is the same as that expressed above.
In summarising why the applicant poses an unacceptable risk of committing a Schedule 1 or Schedule 2 offence or otherwise endangering the public, the prosecution relied upon:
· the circumstances of the offending before the Court. The allegations are of a very serious nature in that the applicant is alleged to have been party to an agreement to cause significant damage by fire to commercial premises in the context of the ongoing tobacco wars. It was submitted, as stated by the Nominal Informant in his report, that the applicant has demonstrated through his actions a disregard for the safety and welfare of the public. The concerns held by police for the risk to safety posed by the applicant are significant, notwithstanding that they did not eventuate during the commission of the current alleged offences;
· the applicant’s very significant criminal history, including multiple previous terms of imprisonment;
· the applicant’s prior history includes convictions for all manner of serious offences including Schedule 1 or 2 offences such as aggravated burglary and intentionally causing serious injury. In addition, the history shows numerous breaches of bail, CCOs, protective orders, and licence disqualifications;
· the fact that the applicant was on bail for a number of offences alleged to have been committed in the two months leading up to this offending. He was granted bail less than four weeks before the offending; and
· the fact that the applicant was also subject to a two year CCO that had been imposed within the last seven months. This CCO included a supervision condition and a number of treatment and assessment conditions. Despite the therapeutic conditions of the order, the applicant had accrued a significant number of unacceptable absences.
In respect of the risk of the applicant failing to answer bail, Mr Sprague noted the applicant’s prior convictions for failing to answer bail and other offences under the Act, his many contraventions of CCOs, and his prior convictions for breaching other court orders such as driving whilst disqualified or suspended, and contravening family violence intervention orders.
The prosecution submitted that the risks posed by the applicant cannot be made acceptable by the imposition of any conditions.
Analysis
As I pointed out during the hearing, the offending alleged against the applicant is exceedingly serious. The factors which go towards that assessment are pretty clear. The arson carried out upon the shop in Cohuna was well-planned, effective, and carried out allegedly as part of a wider criminal enterprise in the context of an ongoing ‘war’ in the illicit tobacco trade. A substantial amount of damage was caused, and this style of offending is unfortunately very common in the community at this time. Notwithstanding the submissions of Mr Slattery in this regard, I consider that the offending was very dangerous, and posed a real risk to the safety of members of the community, including firefighters.
The proposition was advanced on behalf of the applicant that he was not the person considered by police to have a direct link with the ongoing tobacco conflict, but rather, he was recruited into the enterprise by his co-offender. That is not important for present purposes, in my view. Acknowledging, of course, that the charges the subject of the current application are allegations only, any person willing to play a part in this sort of crime, even if encouraged or persuaded by another to do so, has chosen to involve himself in serious criminality. In associating himself with the offending, if that is what the applicant did, he was associating himself with the ongoing criminal enterprise.
The case against the applicant is at the very least of reasonable strength.
In the applicant’s case, the setting of these allegations against the background of his serious criminal history is very concerning. Mr Slattery submitted that the criminal history of the applicant is reflective of his ongoing drug addiction. There is little material before me to warrant such a conclusion. Even if that is correct, the sad fact is that the criminal history shows the proclivity of the applicant over many years, and notwithstanding the many opportunities appropriately extended to him by courts, to continue to engage in serious and persistent criminal offending of many types.
The criminal history also shows the apparent unwillingness of the applicant to abide by grants of bail or the orders of courts, whether they be sentencing dispositions tailored to give him a chance to show he can live under conditions within the community, licence disqualifications, or orders to protect the safety of his family members.
Specifically where bail is concerned, the recent instances of the applicant having answered bail do little to detract from the overall impression left by his criminal history that he has no respect for the institution of bail.
At the time of the most serious charges currently before the Court, the applicant had only recently been released on bail in respect of offences allegedly committed in the months leading up to the current events. In addition, he was on a CCO for very relevant offences including contravening a conduct condition of bail, theft of a motor vehicle, and being a prohibited person in possession of a firearm. In the period of the CCO that preceded his incarceration in July 2024, he had shown his unwillingness to comply with the order, consistent with his previous conduct. Mr Slattery relied on the statement of the applicant’s case manager that his general attendance for supervision under the CCO had been satisfactory. Despite this, the fact remains that the applicant had accrued a large number of unacceptable absences for drug treatment.
As for Mr Slattery’s submission that the applicant ‘substantially complied’ with the CCO made on 22 November 2022, that sits uncomfortably with the fact that when he next appeared in court, on 8 December 2023, the applicant was dealt with for a large number of offences which, I presume, were committed during the period of the CCO made in November 2022. Indeed, he was convicted of contravening that CCO.
The nature and seriousness of the offences in respect of which bail is sought, and the applicant’s lengthy criminal history and poor previous performance on bail, raise a real risk of the applicant continuing to offend while on bail, and again endangering the public. In those circumstances, I have considered the family support available to the applicant, and the fact that his mother is willing to put up a substantial sum of money as a bail guarantee, with a view to determining whether these can mitigate any risk posed so that it is not unacceptable. Notwithstanding the commendable genuineness of the support offered, I do not believe the risk can be satisfactorily ameliorated.
When I contemplate the matter of the risk posed by the applicant, I am driven to the conclusion that, no matter what conditions of bail were imposed, there would be a substantial risk that the applicant would offend again in future while on bail. Hopefully, there will come a time in his life when he will make a conscious decision to turn away from a life of crime. Sadly, on the material before me, I cannot be satisfied that he has yet reached that point.
As for the likely harm if the risk eventuates – the second aspect of the calculus, as described by the Court in FT - bearing in mind the nature of the offending in this case, and the extensive criminal history of the applicant, which shows his willingness to commit serious crimes of varying types, the likely harm should the risk of reoffending eventuate is significant and concerning. I accept the submission of Mr Sprague that, as in the case of FT, both of the integers in the calculus weigh heavily against the applicant.
In reaching that conclusion, I have taken into account all of the surrounding circumstances of the case. These include the fact that a refusal of bail will result in the applicant spending a considerable period of time on remand, which is a very important consideration, and the countervailing proposition that any such time on remand will fall well short of the likely sentence should the applicant be found guilty of the main charges. In this regard, I note the submission of Mr Slattery that the available range for sentence might include a sentence that is lower than the period of time the applicant spends on remand. I do not accept that contention. The sentence which would follow the applicant being found guilty of the current offending following a trial would likely far exceed the length of time on remand.
Conclusion
The prosecution has discharged the burden resting on it of proving that there is an unacceptable risk that the applicant would, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the public, or fail to answer bail.
The application for bail is therefore refused.
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