Re DM - [2021] VSC 631

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0240

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by DM

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2021
DATE OF JUDGMENT:	30 September 2021
CASE MAY BE CITED AS:	Re DM
MEDIUM NEUTRAL CITATION:	[2021] VSC 631

---

CRIMINAL LAW — Application for bail — Charges of trafficking a drug of dependence, possessing a drug of dependence, committing an indictable offence on bail and dealing with property suspected of being proceeds of crime — Alleged offending occurred while applicant on bail for other matters — Strength of the prosecution case — Prospective treatment and bail support services — Surety — Potential for time remanded in custody to exceed sentence if bail not granted — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) s 1B, s 3AAA, s 4AA, s 4A, s 4D, s 4E, s 5AAAA — Cases cited: Re KE [2021] VSC 175; Re Roberts [2020] VSC 793; Roberts v The Queen [2021] VSCA 28; Re Shea [2021] VSC 207.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr William Blake	Sarah Pratt & Associates
For the Respondent	Mr Nathan Watt	Victoria Police

HIS HONOUR:

This is an application for bail by DM (the ‘applicant’). He has been on remand since his arrest on 25 April 2021. He was charged on 26 April 2021 by the informant Constable Sean Alexander (the ‘informant Alexander matter’) with:

(a) trafficking a drug of dependence (amphetamine);[1]
[1]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(b) possessing a drug of dependence (two charges: amphetamine and cannabis);[2]

(c) committing an indictable offence whilst on bail;[3] and

(d) dealing with property suspected of being proceeds of crime.[4]

[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[3]Contrary to s 30B of the Bail Act 1977 (Vic).

[4]Contrary to s 195 of the Crimes Act 1958 (Vic).

The applicant has been refused bail 3 times in the Horsham Magistrates’ Court on 26 April 2021, 21 June 2021 and 1 September 2021.

The basis for the first refusal was that the applicant failed to show exceptional circumstances justifying the grant of bail. The applicant was refused bail on the second and third occasion on the basis that he posed an unacceptable risk of committing an offence while on bail, failing to surrender into custody in accordance with the conditions of bail and/or endangering the safety or welfare of any person.

On 10 September 2021, the applicant filed an application for bail in this Court.

The applicant is also the accused in two other matters. The applicant remains on bail for those matters. The applicant’s matters are next listed on 15 December 2021 at the Horsham Magistrates’ Court, with the informant Alexander matter listed…

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 DM

Details

AGLC: Re DM [2021] VSC 631
Case: [2021] VSC 631
Decision Date: 30 September 2021

CaseChat Overview and Summary

The applicant in the matter of Re DM applied to the Supreme Court of Victoria for bail, facing charges of trafficking a drug of dependence, possessing a drug of dependence, committing an indictable offence while on bail, and dealing with property suspected of being proceeds of crime. The charges arose while the applicant was already on bail for other matters. The court had to consider whether to grant bail under the Bail Act 1977 (Vic), balancing the strength of the prosecution case, the applicant's prospective treatment and bail support services, and the potential for time spent in custody to exceed any sentence if bail were granted.

The legal issues the court needed to address included whether the applicant established exceptional circumstances warranting bail and whether there was an unacceptable risk to the community if bail were granted. The court examined the strength of the prosecution case, the applicant's history of offending while on bail, and the availability of support services and a surety to assist the applicant in complying with bail conditions. The court also considered the potential for the applicant to reoffend and the risk to the community, weighing these against the potential hardship to the applicant if bail were denied.

The court found that the applicant had established exceptional circumstances, as the alleged offending occurred while the applicant was on bail for other matters and the potential sentence did not warrant significant pre-sentence custody. The court noted that the applicant had a history of offending while on bail but found that the strength of the prosecution case was not overwhelming. The court also determined that there were sufficient support services and a surety to mitigate the risk of reoffending. The court held that the risk to the community was not unacceptable, and therefore, granted bail with conditions. The conditions included electronic monitoring, residence restrictions, and regular check-ins with a bail support officer.

The final orders of the court were that the applicant be granted bail, subject to the conditions outlined in the judgment. The applicant was required to surrender any travel documents, remain at a specified address, and comply with electronic monitoring and other reporting requirements. The court set a date for the next hearing and warned the applicant of the consequences of breaching the bail conditions.

Orders