Re Gentile (No 2) - [2021] VSC 781

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0304

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:	19 November 2021
DATE OF JUDGMENT:	26 November 2021
CASE MAY BE CITED AS:	Re Gentile (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 781

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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 indictable offence whilst on bail and contravention of a conduct condition of bail – Applicant previously refused bail – Applicant argues new facts or circumstances - 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 – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA, 18 and 18AA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms H Baxter	Office of Public Prosecutions
For the Accused	Mr B Newton	Adrian Dessi Legal

HER HONOUR:

By application dated 3 November 2021, the applicant seeks a grant of bail in relation to 25 charges.

The applicant was previously refused bail in respect of these charges on 6 August 2021.[1] In that decision I found that the applicant had failed to demonstrate exceptional circumstances that justified the grant of bail and expressed the opinion that even if my view as to the existence of exceptional circumstances had been different, I would have refused bail on the basis that the applicant posed an unacceptable risk of endangering the safety and welfare of Ms Powell (his ex-partner) and committing an offence while on bail.
[1]Re Gentile [2021] VSC 467 ( “Gentile’ or ‘previous bail decision’).

New facts or circumstances

Section 18(1) of the Bail Act 1977 (‘Act’) permits an accused who has been refused bail and is in custody pending the hearing or trial of a charge to make a further application for bail. Section 18AA(1)(a) of the Act requires such an accused to satisfy the court that new facts or circumstances have arisen since the refusal of bail before the court may hear the application.

In this matter the applicant relies upon two ‘new facts or circumstances’. First, the refusal of an application to have 22 of the charges heard and determined summarily in the Magistrates’ Court. Second, the applicant’s acceptance into a 90-day residential treatment program at the Habitat Therapeutics Private Hospital.

The respondent, appropriately, accepts both matters as ‘new facts or circumstances’.

It follows that s 18AA(1)(a) of the Act is satisfied.[2]
[2]Accordingly, I need not determine whether new facts or circumstances must be demonstrated before a further application for bail can be made in this Court given s 18AA(2) of the Act. Divergent views have…

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 (No 2)

Details

AGLC: Re Gentile (No 2) [2021] VSC 781
Case: [2021] VSC 781
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the matter of Re Gentile, the applicant was before the court seeking bail from a previous refusal. The applicant faced a series of serious charges including false imprisonment, persistent contravention of an intervention order, threats to kill, threats to inflict serious injury, intentionally causing injury, committing an indictable offence while on bail, and contravention of a conduct condition of bail. The case was heard in the relevant Australian court, with the presiding judge tasked with determining whether the applicant's circumstances had changed sufficiently to warrant a reconsideration of the bail application.

The court needed to address several key legal issues. Firstly, it had to consider whether there were any new facts or circumstances that had not been previously known to the court at the time of the initial bail refusal. Secondly, the court needed to determine if there were exceptional circumstances that might justify granting bail despite the severity of the charges. Thirdly, the court had to weigh the risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail against any potential justification for granting bail.

The court concluded that no new facts or exceptional circumstances had been presented that would warrant a change in the previous decision to refuse bail. The court found that the applicant still posed an unacceptable risk of endangering the safety or welfare of others or committing further offences if released on bail. The court carefully considered the statutory provisions under the Bail Act 1977, including sections 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA, 18, and 18AA, which guided its decision-making process. Based on these considerations, the court maintained its earlier decision and refused the applicant's bail application.

The court did not make any further orders beyond the refusal of bail, adhering to the conclusions reached in its detailed analysis of the statutory provisions and the nature of the charges against the applicant.

Orders