Re Fleming - [2019] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0141

IN THE MATTER OF the Bail Act 1977 (Vic)

-and-

IN THE MATTER OF an Application for Bail by ALBERT FLEMING

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2019
DATE OF RULING:	6 August 2019
CASE MAY BE CITED AS:	Re Fleming
MEDIUM NEUTRAL CITATION:	[2019] VSC 615

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CRIMINAL LAW — Application for bail – Applicant charged with multiple failures to abide by reporting obligations —Applicant charged with indictable offence whilst on bail for Schedule 2 offence — Whether applicant, if bailed, presents an unacceptable risk — Application opposed — Time in custody likely to exceed sentence imposed — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions – Sex Offenders Registration Act2004 (Vic) ss 1 and 6 — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4AA, 4D and 4E — Hall v Pangemanan [2018] VSC 533; Re Application for Bail by Rebecca Dillon [2018] VSC 80; Re Kyle Magee [2009] VSC 384 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N Wolan	Victoria Legal Aid
For the Accused	Mr G Carr	Victoria Police

HIS HONOUR:

Albert Fleming (the ‘applicant’) seeks his bail in relation to five outstanding matters relate to various offences alleged to have occurred over a four-year period between 1 August 2014 and 1 August 2018. The applicant is a registered offender pursuant to s 6 of the Sex Offenders Registration Act2004 (Vic) (‘SORA’). The charges are as follows:

· Informant O’Shea (No 1) –

o Failing to comply with reporting obligations under the SORA (two charges);

o Failing to answer bail (two charges)

· Informant Kolivas –

o Failing to comply with reporting obligations under the SORA;

o Resisting a police officer or other emergency worker (three charges);

· Informant O’Shea (No 2) –

o Failing to comply with reporting obligations under the SORA (four charges);

o Failing to answer bail;

· Informant Holland –

o Refusing a preliminary breath test;

o Failing to produce a licence on request;

o Failing to state name on request;

o Failing to state address on request; and

o Using an unregistered motor vehicle on a highway;

· Informant O’Shea (No 3) –

o Failing to answer bail;

o Failing to comply with reporting obligations under the SORA (two charges); and

o Committing an indictable offence while on bail.

The applicant has been on remand in relation to the above matters since 13 August 2018. He has been refused bail in the Frankston Magistrates’ Court on 13 August 2018, 6 December 2018 and 8 May 2019. Presently, all matters are listed for a contested hearing on 8 November 2019 in the Frankston Magistrates’ Court.

Circumstances of the alleged offending

By way of background, on 26 May 2005, the applicant was sentenced to nine years’ imprisonment after pleading guilty to maintaining a…

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 Fleming

Details

AGLC: Re Fleming [2019] VSC 615
Case: [2019] VSC 615
Decision Date: 6 August 2019

CaseChat Overview and Summary

The case of Re Fleming involved the applicant, who had been charged with multiple failures to abide by reporting obligations under the Sex Offenders Registration Act 2004 (Vic). The applicant was also charged with an indictable offence while already on bail for a Schedule 2 offence. The application for bail was opposed, with concerns raised about the applicant presenting an unacceptable risk if released on bail. However, the court had to consider whether these risks could be mitigated to an acceptable level, particularly given that the applicant's time in custody was likely to exceed any sentence that might be imposed.

The legal issues before the court included assessing the risk posed by the applicant if released on bail, whether exceptional circumstances existed to justify bail, and the appropriate conditions that could be imposed to manage any identified risks. The court considered relevant legislation, including sections of the Bail Act 1977 (Vic) and the Sex Offenders Registration Act 2004 (Vic), as well as relevant case law. The decision required a careful balancing of the applicant's right to liberty against the need to protect the community.

After thorough consideration, the court found that exceptional circumstances did exist, and the risk posed by the applicant could be managed through appropriate bail conditions. The court concluded that granting bail was in the interests of justice, particularly given the likely excessive time in custody. Conditions were imposed to ensure the risk to the community was minimised. The court granted bail with specific conditions, taking into account the principles outlined in Hall v Pangemanan and other cited cases.

The final orders included that the applicant be released on bail subject to specified conditions, pending the resolution of the charges against them. The conditions were designed to manage the identified risks and ensure compliance with the obligations under the Sex Offenders Registration Act 2004 (Vic). The applicant was required to comply with electronic monitoring and other restrictions to mitigate any potential harm to the community.

Orders