Re Gentile - [2021] VSC 467

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0185

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an Application for Bail by DANIEL GENTILE

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2021
DATE OF JUDGMENT:	6 August 2021
CASE MAY BE CITED AS:	Re Gentile
MEDIUM NEUTRAL CITATION:	[2021] VSC 467

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CRIMINAL LAW – Bail – Applicant charged with false imprisonment, persistent contravention of intervention order, contravene intervention order in several ways, threat to kill, threat to inflict serious injury, intentionally cause injury, commit an indicatable offence whilst on bail and contravention of a conduct condition of bail – Requirement to show exceptional circumstances justifying grant of bail – Whether exceptional circumstances exist justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Exceptional circumstances not established – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E and 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Terry	Adrian Dessi Legal
For the Respondent	Ms A Phelan	Victoria Police

HER HONOUR:

By application dated 16 July 2021, the applicant seeks a grant of bail in relation to 25 charges. The first three charges were preferred by the informant Ravinay Singh (Singh matters) and the remainder by the informant Alex Metaxas-Belt (Metaxas-Belt matters). The complainant in relation to the Singh matters and the primary complainant in relation to the Metaxas-Belt matters is Katherine Powell. She is the ex-partner of the applicant. Together they have a child (IP), now aged two years, having been born on 10 March 2019.

Since 2 July 2020 the applicant has been subject to a family violence intervention order (‘FVIO’) granted in favour of both Ms Powell and IP which prevented him from committing family violence against them. It also prevented him from contacting or communicating with Ms Powell by any means and approaching or remaining within five metres of her or IP, subject to that permitted by a child protection order.

Additionally, since about November 2020, IP has lived with the parents of the applicant, Joe and Maria Gentile, pursuant to an interim accommodation order made by the Children’s Court of Victoria. That order imposes a number of conditions upon the applicant including that he complete supervised drug screens, participate in drug and alcohol assessment and treatment and attend a course on anger management as directed by the Department of Families, Fairness and Housing (‘DFFH’). It also prevents him from living with or having contact with IP, other than contact permitted by the court and requires him to not expose IP to physical or verbal violence.

In short form, the 25 offences alleged are of false imprisonment, contraventions (including persistent contraventions) of the FVIO, threats to kill, threats to inflict serious injury, intentionally cause injury, recklessly cause injury, unlawful assault,…

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 Gentile

Details

AGLC: Re Gentile [2021] VSC 467
Case: [2021] VSC 467
Decision Date: 6 August 2021

CaseChat Overview and Summary

The case of Re Gentile involved the applicant, who was charged with multiple serious criminal offences, applying for bail. The applicant faced charges including false imprisonment, persistent contravention of an intervention order, threatening to kill, threatening to inflict serious injury, intentionally causing injury, committing an indicatable offence while on bail, and contravening a conduct condition of bail. The application was heard in the Magistrates’ Court of Victoria. The central legal issues the court had to address were whether there were exceptional circumstances that warranted the grant of bail and whether the applicant posed an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail.

The court examined the nature and seriousness of the charges against the applicant, which included persistent contravention of an intervention order, indicating a pattern of behaviour that endangered the safety and welfare of the victim. The court also considered the applicant's history of non-compliance with bail conditions, which suggested a disregard for legal obligations. In assessing whether exceptional circumstances existed that would justify bail, the court weighed the applicant's right to liberty against the need to protect the community and the victim. Ultimately, the court concluded that the exceptional circumstances necessary to grant bail were not established, as the risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail was unacceptable.

Based on its findings, the court refused the applicant's bail application. The decision was grounded in the statutory framework provided by the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, and 5AAAA. These sections outline the criteria for assessing bail applications, including the consideration of exceptional circumstances and the risk of reoffending or endangering others. The court's reasoning was that the applicant's history of non-compliance with bail conditions and the serious nature of the charges against him precluded the grant of bail. The final orders of the court were that the applicant's application for bail was refused, and he was to remain in custody pending the resolution of his criminal matters.

Orders