Re Goggin - [2022] VSC 221

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0091

IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an Application for Bail by Rodney GOGGIN	Applicant

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2022
DATE OF JUDGMENT:	5 May 2022
CASE MAY BE CITED AS:	Re Goggin
MEDIUM NEUTRAL CITATION:	[2022] VSC 221

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CRIMINAL LAW – Bail – 46 year old applicant with no criminal history - Family violence offending in context of relationship breakdown – Repeated and flagrant breaches of family violence intervention order (‘FVIO’) – Concerning aspects of some of conduct of applicant – Previous threat to set fire to house with himself in it – No psychiatric material advanced in application - Likely delay of 9½ months before resolution of contested charges – Stable accommodation and family support available – Significant risk of further breaches of FVIO – Compelling reason not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Battersby	Marshall Jovanovska Ralph Criminal Lawyers
For the Respondent	Mr J Jassar	Victoria Police, Legal Branch

HIS HONOUR:

Introduction

The applicant applies for bail on a number of charges he faces as follows:

· Stalking.

· Persistent contravention of Family Violence Intervention Order (‘FVIO’) (two charges).

· Contravention of FVIO (five charges).

Arson.

· Theft.

· Use carriage service to harass.

· Install tracking device to monitor.

· Criminal damage (two charges).

It is agreed between the parties that the Court is required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).[1]
[1]An offence against s 125A of the Family Violence Protection Act 2008 is contained at item 19 of Schedule 2 of the Act.

Procedural summary

The alleged offending took place between 7 December 2021 and 14 January 2022. The applicant was arrested and charged on 24 January 2022. He made an application for bail on that date, which was refused in the Sunshine Magistrates’ Court on the basis that the applicant had failed to show a compelling reason, and that in any event he posed an unacceptable risk. A new facts and circumstances bail application was brought in the same Court on 31 March 2022, and was refused for the same reasons. The matter is listed for a contested hearing at Sunshine Magistrates’ Court on 11 November 2022.

Summary of alleged offending

The applicant and HS were de-facto partners for 22 years and have a 17-year-old daughter and a 15-year-old son.

They resided together in their jointly-owned property at 24 Studley St, in Weir Views until their relationship ended abruptly on 23 November 2021. Following this, the Studley St property was listed for sale and the…

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 Goggin

Details

AGLC: Re Goggin [2022] VSC 221
Case: [2022] VSC 221
Decision Date: 5 May 2022

CaseChat Overview and Summary

The case of Re Goggin was heard in the Supreme Court of New South Wales. The applicant, a 46-year-old with no prior criminal history, sought bail in relation to charges arising from family violence incidents occurring during a relationship breakdown. Despite the absence of a criminal history, the applicant had repeatedly and flagrantly breached a family violence intervention order. The court had to consider the risk of further breaches of the FVIO, the nature of the applicant’s conduct, and the availability of stable accommodation and family support.

The primary legal issue for the court was whether the applicant posed an unacceptable risk to the community if granted bail. The court had to weigh the potential for further breaches of the FVIO against the applicant's right to liberty and the likelihood of delay before the resolution of contested charges. Given the applicant's history of significant breaches, including a previous threat to set fire to the house with himself inside, the court also considered whether a compelling reason existed to grant bail.

In its reasoning, the court found that the risk of further breaches of the FVIO was too high, given the applicant's concerning conduct and the lack of psychiatric material to suggest any mitigating factors. The court emphasised the seriousness of the breaches and the absence of any compelling reason to exercise discretion in favour of the applicant. Consequently, the court concluded that the risk posed by the applicant was unacceptable and denied bail.

The final orders of the court were that the applicant remain in custody pending the resolution of the contested charges. The court acknowledged the potential for a lengthy delay of up to 9½ months but determined that the risk of further breaches of the FVIO outweighed the applicant's right to liberty.

Orders