Re Erol - [2020] VSC 395

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0135

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by GUVEN EROL

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2020
DATE OF JUDGMENT:	29 June 2020
CASE MAY BE CITED AS:	Re Erol
MEDIUM NEUTRAL CITATION:	[2020] VSC 395

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CRIMINAL LAW – Bail – Family violence offending – While on a community correction order and two separate grants of bail – Long criminal history – Significant history of family violence offending – Deteriorating health of father – Availability of drug treatment – Family support – Exceptional circumstances conceded by respondent – Whether unacceptable risk – Even stringent conditions of bail could not reduce risk to an acceptable one in the circumstances – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gumbleton with Mr M Murphy	Emma Turnbull Lawyers
For the Respondent	Mr N Watt	Legal Services Department, Victoria Police

HIS HONOUR:

The applicant applies for bail on the following charges:

(a) Possessing a drug of dependence (methylamphetamine and cannabis, two charges)

(b) Trafficking in a drug of dependence (methylamphetamine)

(c) Carrying a controlled weapon without an excuse

(d) Contravening a family violence intervention order (‘FVIO’) (10 charges)

(e) Persistently contravening a FVIO

(f) Criminal damage

(g) Assault with an instrument (hammer)

(h) Unlawful assault

(i) Committing an indictable offence whilst on bail (five charges)

The parties agree that the exceptional circumstances test applies to the applicant. This is because he is charged with the commission of a number of Schedule 2 offences during the period of a community correction order (‘CCO’) for other Schedule 2 offences.

Bail has been refused on two previous occasions. This occurred first in the Broadmeadows Magistrates’ Court on 20 February 2020, on the basis that the applicant had failed to demonstrate exceptional circumstances justifying the grant of bail and again on 23 April 2020 in the Broadmeadows Magistrates’ Court on the basis of unacceptable risk.

At the time of the hearing of the application before me, the charges faced by the applicant were to come before the Broadmeadow Magistrates’ Court the following day, 26 June 2020 for special mention. At the conclusion of the hearing of the application, I reserved my decision to Monday 29 June 2020. In the meantime, I was informed by the legal representatives of the applicant that at the special mention on 26 June 2020, the matters were set down for a contested hearing on 6 November 2020.

Alleged offending

By way of background, at the time of the alleged offending the subject of the present application, the applicant was subject to a CCO originally imposed by the County Court on 3 August 2017 for a period of 18 months. The CCO was imposed in respect of, inter alia, the offences of committing an indictable…

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 Erol

Details

AGLC: Re Erol [2020] VSC 395
Case: [2020] VSC 395
Decision Date: 29 June 2020

CaseChat Overview and Summary

The case of Re Erol involved the applicant, who was before the Court seeking bail while on a community correction order and two separate grants of bail. The applicant had a lengthy criminal history, including a significant history of family violence offending. The respondent did not contest that exceptional circumstances existed, but argued that the unacceptable risk posed by the applicant to the community outweighed any exceptional circumstances. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the risk posed by the applicant, considering his criminal history, health status, and availability of drug treatment and family support, could be mitigated to an acceptable level by imposing stringent conditions of bail. The Court was required to weigh the exceptional circumstances conceded by the respondent against the risk to the community. Additionally, the Court needed to determine whether the risk to the community was such that it could not be mitigated by any conditions of bail.

The Court found that the applicant's history of family violence offending and his deteriorating health made it highly likely that he would reoffend if released on bail. Despite the exceptional circumstances conceded by the respondent, the Court determined that even stringent conditions could not reduce the risk to an acceptable level. The Court emphasised the seriousness of the applicant's offending history and the potential harm to the community if he were to reoffend. Consequently, the Court refused the applicant's application for bail under the Bail Act 1977.

The Court did not make any orders as the application for bail was refused. The applicant remained in custody.

Orders