Re Guerra - [2023] VSC 795

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0288

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an application for bail by CODY GUERRA

BETWEEN:

CODY GUERRA	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November & 4 December 2023
DATE OF JUDGMENT:	8 December 2023
DATE OF REASONS:	7 February 2024
CASE MAY BE CITED AS:	Re Guerra
MEDIUM NEUTRAL CITATION:	[2023] VSC 795

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CRIMINAL LAW — Application for bail — Charges relating to burglary and theft — Intellectual disability — Young age — Delay — Special vulnerability — Exceptional circumstances satisfied — Unacceptable risk not established — Risk can be reduced through strict bail conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, 18, 18AA, 18AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	T Battersby	Slink & Keating
For the Respondent	P Murphy	Victoria Police

HIS HONOUR:

Introduction

This is an application for bail by Cody Guerra [‘the applicant’]. He seeks bail with respect to the following charges, pertaining to six separate informants, on various dates between July and October 2023:

Matter Dates Charges

Informant Mosdall
Alleged offending on 2 July 2023

Charged on 21 November 2023

Burglary

Attempted theft from a motor vehicle

Informant Olley
Alleged offending on 31 August 2023 and 14 September 2023

Charged on 30 October 2023

Theft from a motor vehicle

Attempted theft

Theft of a motor vehicle

Learner driver unaccompanied

Burglary

Informant Kos
Alleged offending on 8 October 2023

Charged on 20 October 2023

Burglary (three charges)

Theft (three charges)

Attempted burglary (two charges)

Unlicensed driving

Informant Owen
Alleged offending on 17 October 2023

Charged on 23 October 2023

Attempted burglary

Burglary

Theft

Handle stolen goods

Informant Winkler
Alleged offending on 17 October 2023

Charged on 30 October 2023

Burglary

Theft of a motor vehicle

Theft (three charges)

Informant Osekowski
Alleged offending on 29 October 2023

Charged on 7 November 2023
Theft from a motor vehicle
Outstanding matters for which the applicant is currently on bail/summons

The applicant is currently on bail in the Informant Tipas matter for the following charges:

(a) theft of motor vehicle;

(b) theft;

(c) unlicensed driving;

(d) failing to stop a motor vehicle;

(e) burglary;

(f) criminal damage; and

(g) attempted theft.

This matter returns to the Sunshine Magistrates’ Court on 19 March 2024 for mention.

The applicant is currently on summons in the Informant Patounas matter (for charges of burglary and theft). It is alleged that the applicant entered a residential premises in Caulfield North on 22 October 2023 and stole alcohol, a laptop computer, and an engagement ring and a watch, to the value of around $35,000.

This matter returns to the Moorabbin Magistrates’ Court on 15 February 2023.

Procedural history

On 23 October 2023, the applicant was arrested and released on an undertaking of bail in relation to the Informant Kos…

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 Guerra

Details

AGLC: Re Guerra [2023] VSC 795
Case: [2023] VSC 795
Decision Date: 8 December 2023

CaseChat Overview and Summary

The applicant, Guerra, made an application for bail in the County Court of Victoria, where he faced charges of burglary and theft. Guerra, who has an intellectual disability and is young, argued that the delay in processing his case and his special vulnerability constituted exceptional circumstances warranting bail. The prosecution opposed the application, arguing that the risk of reoffending was too high and that bail should not be granted. The court was required to determine whether the exceptional circumstances provision in the Bail Act 1977 (Vic) applied and, if so, whether the risk of reoffending could be sufficiently mitigated by bail conditions.

The court found that Guerra's intellectual disability, his young age, and the delay in his case processing constituted exceptional circumstances under section 4AA of the Bail Act 1977 (Vic). It was noted that the unacceptable risk of reoffending was not established, and the risk could be reduced through strict bail conditions. The court concluded that granting bail would not be detrimental to the community and that it was in Guerra's best interests. The court ordered that Guerra be granted bail, subject to strict conditions to ensure his appearance in court and to prevent any further offending.

No additional paragraph is necessary as the final orders are not explicitly stated in the text. However, it can be inferred that the bail conditions would be detailed in the court's written reasons.

Orders