Re Dinatale - [2021] VSC 104

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0022

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by JOHN DINATALE

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021
DATE OF JUDGMENT:	9 March 2021
CASE MAY BE CITED AS:	Re Dinatale
MEDIUM NEUTRAL CITATION:	[2021] VSC 104

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CRIMINAL LAW – Bail – Family violence offending – 43 year old applicant with no prior convictions – Likely period of two to three years on remand awaiting trial – Period on remand may exceed sentence imposed if found guilty – Strong family support and accommodation far away from residence of alleged victims – Availability of surety – Exceptional circumstances established – Risk can be mitigated by stringent conditions so as not to be unacceptable – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hallowes SC with Mr C Terry	Stary Norton Halphen
For the Respondent	Ms S MacDougall	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail on a large number of charges he faces principally alleging family violence and intervention order breaches in respect of his wife, Rachel Dinatale and their two young children.

The offending is alleged to have been committed over a period of years but mainly in the period from November 2019 to October 2020. The applicant was arrested on 9 September 2020 with some continued offending alleged after that time by virtue of telephone calls made by the applicant from prison.

The applicant has been in custody since his arrest. He has brought two unsuccessful bail applications in the Ballarat Magistrates’ Court, the most recent of them being on 11 January 2021.

The next listing date of the charges is at the Ballarat Magistrates’ Court on 15 June 2021 for a committal hearing.

The likely timing of the trial in this matter is difficult to determine, in light of the delays in the criminal justice system brought about by the COVID-19 pandemic, and the fact that criminal trials have not yet resumed in Ballarat since the onset of the pandemic. There is a real prospect, however, that the trial will not proceed until 2023.

Because of the fact that the applicant is accused of committing offences contained within Schedule 2 of the Bail Act 1977 (‘the Act’) while on bail for another Schedule 2 offence, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[1] The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.
[1]The Act, ss 4AA(2)(c)(i) and 4A(1A).

Summary of alleged offending

The applicant and Rachel Dinatale (‘the complainant’) were in a relationship for 20 years and have been married for 15 years. They have two children together, Isabella and Ethan, aged 12 and 8 years respectively.

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 Dinatale

Details

AGLC: Re Dinatale [2021] VSC 104
Case: [2021] VSC 104
Decision Date: 9 March 2021

CaseChat Overview and Summary

The applicant, a 43-year-old individual with no prior convictions, sought bail in the context of family violence charges. The matter was heard in the Supreme Court of Queensland. The applicant anticipated a trial that could result in a sentence of two to three years, but the period on remand could exceed this potential sentence if bail was denied. The applicant had strong family support and accommodation far from the alleged victims, and was willing to provide a surety.

The primary legal issue was whether the applicant established exceptional circumstances to justify bail, considering the nature of the charges and the potential for the remand period to exceed the sentence if convicted. The court needed to weigh the risk of reoffending against the applicant's personal circumstances and the availability of conditions to mitigate that risk. The applicant argued that stringent bail conditions could adequately manage any risk of reoffending or interference with witnesses, thus justifying bail.

The court determined that the applicant had indeed established exceptional circumstances, given the likely lengthy period on remand and the absence of prior convictions. The court held that the risk of reoffending could be sufficiently mitigated by imposing stringent bail conditions. Consequently, the application for bail was granted, with the court emphasising the importance of strict compliance with the conditions to ensure public safety and the integrity of the trial process.

Orders