Re Diu
[2024] VSC 321
•14 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0128
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by KEAK DIU | |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 June 2024 |
DATE OF RULING: | 14 June 2024 |
CASE MAY BE CITED AS: | Re Diu |
MEDIUM NEUTRAL CITATION: | [2024] VSC 321 |
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CRIMINAL LAW – Bail – Application for bail pending de novo appeal against sentence in County Court – Driving offences – Whether ‘exceptional circumstances’ or ‘compelling reason’ test applies – Uplift provisions – Repeal of offence of committing an indictable offence on bail – Bail not opposed – Bail granted – Bail Act 1977 (Vic) s 4AA(2)(c)(iv).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Stanley | Ajak & Associates Lawyers |
| For the Respondent | Mr A Grant | Office of Public Prosecutions |
HER HONOUR:
The applicant, Keak Diu, is seeking bail pending appeal against sentence for a series of driving offences, the most serious of which is dangerous or negligently driving whilst pursued by police pursuant to s 319AA of the Crimes Act 1958 (Vic). At the time that Mr Diu committed that offence (a Schedule 2 offence as defined by the Bail Act 1977 (Vic) (‘the Act’)[1]), he was subject to a community corrections order (‘CCO’) imposed on a charge of, inter alia, committing an indictable offence on bail (which was, until its recent repeal, a Schedule 2 offence)[2].
[1]The Act sch 2 item 22(h).
[2]The Act sch 2 item 30, as repealed by Bail Amendment Act 2023 (Vic) s 40.
On 5 June 2024, Mr Diu was sentenced on nine charges in total in the Dandenong Magistrates’ Court, and received a total effective sentence of six months’ imprisonment, an 18 month CCO, and $1700 in fines. A notice of appeal was filed on the date of sentence. On the same day, the applicant was refused appeal bail. It is not clear whether the ‘exceptional circumstances’ or ‘compelling reason’ test was applied by the learned magistrate, but in any event, her Honour found that the applicant was an unacceptable risk of endangering the safety and welfare of the community. By application filed on 6 June 2024, the applicant now applies for bail in this Court. The application for bail is not opposed by the respondent.
Applicable bail test
Both the parties were in agreement that the ‘compelling reason’ test applies to this application. Noting the recent amendments to the Act and for the avoidance of doubt, it is appropriate to clarify the basis on which I have reached the same conclusion as the parties - that is, that the ‘compelling reason’ test applies to this application.
First, as this Court asserted in Re ML,[3] the rule that an applicant must show ‘exceptional circumstances’ in order to be granted bail pending appeal does not apply to de novo appeals from the Magistrates’ Court to the County Court.
[3][2022] VSC 10, [22].
Similarly, the general position of an applicant seeking bail for a Schedule 2 offence is that the ‘compelling reason’ test applies as step one of the bail exercise.[4] However, the Act includes certain provisions, colloquially referred to as ‘uplift’ provisions, which detail specific circumstances in which the ‘exceptional circumstances’ test applies to an applicant seeking bail for a Schedule 2 offence. Of relevance to the current application is s 4AA(2)(c)(iv) of the Act:
[4]The Act s 4AA(3).
4AA When 2 step tests apply
(2)The step 1 – exceptional circumstances test also applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if—
(c)the offence is alleged to have been committed—
(iv)during the period of a community correction order made in respect of the accused for any Schedule 1 or Schedule 2 offence;
At the time Mr Diu’s CCO was made, committing an indictable offence on bail was a Schedule 2 offence. The plain meaning of s 4AA(2)(c)(iv), and particularly the inclusion of the past tense verb ‘made’, arguably invites me to consider the classification of the offence at the time the CCO was imposed. However, committing an indictable offence on bail is no longer an offence at all, as a result of the amendments introduced by the Bail Amendment Act 2023 (Vic) which came into effect on 25 March 2024. This change raises an important, though perhaps transitory, question of law: do the uplift provisions in s 4AA(2)(c) continue to apply to a repealed bail offence committed prior to the amendments?
In my view, the better interpretation of s 4AA(2)(c)(iv), which accords with the text, context and purpose of the Act following the amendments, is that ‘Schedule 2 offence’ in the context of this section is a reference to an offence listed in Schedule 2 of the Act at the time that the application is determined. This is for the following reasons. First, the plain meaning of the phrase ‘any Schedule 1 offence or Schedule 2 offence’ is best understood as a reference to an offence listed in Schedule 1 or Schedule 2 at the time of the application. This accords with the s 3 definition that ‘Schedule 2 offence means an offence specified in Schedule 2’ and with the assertion in s 34(22) that the recent amendments apply to ‘an application made, or an appeal commenced, under this Act on or after [25 March 2024], regardless of when the offence is alleged to have been committed’.
Secondly, this construction is consistent with the broader object and purpose of the recent amendments to the Act. The legislature sought to limit the uplift for repeated low-level offending which does not pose a serious risk to community safety.[5] The explanatory memorandum unambiguously states that the purpose of repealing the offence of committing an indictable offence on bail is ‘to ensure that such offending is not a Schedule 2 offence for the purposes of considering which bail test applies’.[6]
[5]Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2023, 2898 (Anthony Carbines).
[6]Explanatory Memorandum, Bail Amendment Bill 2003, 4 (emphasis added).
Taken altogether, the recent reforms indicate that the applicable Stage 1 test in a bail application rests on the contents of Schedule 1 and 2 at the time of the application. As a result, the applicant in this instance need only clear the lower ‘compelling reason’ threshold.
The present application
It is conceded by the respondent that it is open to the Court to find that a compelling reason exists justifying the grant of bail. Even without this concession, balancing all the relevant matters (including those in s 3AAA of the Act), I am satisfied that the applicant has demonstrated compelling reasons justifying the grant of bail. Of particular note are the following matters:
(a) The applicant is relatively young at 22 years old, and will have served a little over two months of the six-month custodial sentence imposed by the Magistrates’ Court at the time of the appeal hearing in the County Court on 8 August 2024.
(b) While the delay between the sentence and the appeal date is not excessive, in the circumstances of this case it is a significant factor. Given the totality of the evidence before the Court, I consider that there is at least a live issue as to the sentence imposed by the magistrate. It is not a forgone conclusion that the applicant will face a term of imprisonment. He has successfully completed his County Court CCO, and was assessed as suitable for a further CCO. There is a possibility that the applicant’s time in custody pending appeal may exceed any sentence that the County Couty might impose.
(c) The applicant currently has no known outstanding matters or charges pending. He has a relevant criminal history, and in particular, driving related priors. The charges the applicant has pleaded guilty to are serious, particularly the charge of dangerous driving while pursued by police.
(d) The applicant has breached court orders in the past, including CCOs and bail conditions. However, he has demonstrated a willingness and capacity to comply with stringent bail conditions over a significant period. The applicant was initially bailed from the Magistrates’ Court on 23 September 2022, and did not commit any further offending in the intervening period, other than failing to answer bail on two occasions.
(e) The applicant has stable accommodation, strong family support, and support in the community through the Centre for Multicultural Youth Early Intervention Program and TaskForce Community Agency. In the 10 months prior to his remand, the applicant had been working fulltime for Frankston City Council, and will continue to have this employment available to him should he be released on bail.
(f) Whilst on bail, the applicant has successfully completed a number of courses, including an anger management course, a first aid course and relevant training with Foresite allowing him to work on construction sites.
Further and appropriately, the respondent concedes that suitable bail conditions can be imposed so that any risks the applicant presents would no longer be unacceptable. In my view, the applicant has demonstrated the capacity to comply with bail conditions, and any risk posed by the applicant can be ameliorated by appropriate conditions.
I note that, given the pending appeal, any further evidence that the applicant can present to the County Court concerning his behaviour and compliance with bail over the next two months will no doubt be an important consideration for the appeal judge.
I therefore order that the applicant be granted bail on the following conditions:
(a) He attend at the Melbourne County Court on 8 August 2024 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [the Langwarrin address] and not change that address without the leave of the Court.
(c) He report each Friday to the Officer in Charge of the Police Station at Frankston, or his or her nominee, between the hours of 6am and 9pm.
(d) He not operate a motor vehicle.
(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(f) He not associate, directly or indirectly, with Timothy Leek for the duration of the bail period.
(g) He not leave the State of Victoria.
(h) He provide the informant, Acting Sergeant Christopher Fidler, with his mobile telephone number and the IMEI number of his mobile phone handset and he advise the informant within 24 hours of acquiring any new mobile phone number or handset.
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