Re Diu - [2024] VSC 321

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[2]The Act sch 2 item 30, as repealed by Bail Amendment Act 2023 (Vic) s 40.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…

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.

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Details

Case: [2024] VSC 321
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the matter of Re Diu, the respondent, a convicted criminal, sought bail pending the determination of an appeal against his sentence in the County Court. The appeal was on the grounds of the sentence's severity and the respondent's prospects of rehabilitation. The application was heard by the Supreme Court of Victoria, presided over by Justice Byrne. The primary legal issue before the court was determining whether the 'exceptional circumstances' test or the 'compelling reason' test applied to the respondent's application for bail pending appeal against sentence.

The court considered the statutory provisions under the Bail Act 1977 (Vic) and the applicable case law. The court noted that the statutory test applied to bail applications pending an appeal against sentence was the 'exceptional circumstances' test. However, the court also considered the relevant case law, which suggested that the 'compelling reason' test was more appropriate in cases where the applicant's prospects of rehabilitation were significant. Ultimately, the court found that the 'compelling reason' test was applicable in this case, given the respondent's prospects of rehabilitation and the likelihood of a reduced sentence on appeal.

The court found that the respondent had demonstrated a compelling reason for the grant of bail. The court considered the respondent's prospects of rehabilitation, his previous good character, and the likelihood of a reduced sentence on appeal. The court also noted that the respondent had no significant criminal history and had shown remorse for his offending. The court further noted that the respondent had no significant ties to the community and was unlikely to reoffend if granted bail. The court found that the respondent had demonstrated a compelling reason for the grant of bail, and the application was accordingly granted. The court made an order that the respondent be released on bail pending the determination of his appeal against sentence.

Orders