Re Guinane - [2020] VSC 208

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0049

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Michael GUINANE

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2020
DATE OF JUDGMENT:	6 April 2020
DATE OF REASONS	23 April 2020
CASE MAY BE CITED AS:	Re Guinane
MEDIUM NEUTRAL CITATION:	[2020] VSC 208

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CRIMINAL LAW - Bail – Family violence offending – Compelling reason – Conceded by respondent – Unacceptable risk – Delay and onerous custodial conditions due to COVID-19 – Delay likely to exceed any custodial sentence – Limited prior convictions – First time in custody - Applicant able to live with supportive mother and engage in employment – Willingness to accept treatment and counselling – Availability of substantial surety – Very strong incentive to abide by bail conditions – Not an unacceptable risk – Bail granted with strict conditions – Bail Act 1977 ss 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Fayman Lawyers
For the Respondent	Mr J Kibel	Victoria Police Legal Services Department

HIS HONOUR:

Introduction

Michael Guinane, the applicant, applied for bail in respect of a total of 19 charges he faces comprising charges of reckless conduct endangering serious injury, making threats to kill, making threats to inflict serious injury (two charges), assault (common law) (two charges), unlawful assault (seven charges), criminal damage (two charges), recklessly causing injury, making threats to damage property, and contravening a conduct condition of bail (two charges).

In the circumstances, I would have been required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail.

On the hearing of the application on 6 April 2020, for reasons which I will detail later in this decision, I determined that the applicant had discharged the onus resting on him to prove a compelling reason in justification for a grant of bail. The respondent did not satisfy me that there was an unacceptable risk attaching to the release of the applicant on bail pursuant to s 4E(1)(a) of the Bail Act 1977 (‘the Act’).

In those circumstances, I granted bail to the applicant on stringent conditions. I indicated that I would publish my reasons at a later time. These are those reasons.

Procedural history

At the time of the hearing, the applicant had been in custody since 12 February 2020. He had been refused bail twice in the Frankston Magistrates’ Court, on 13 February and 19 March 2020. On both occasions, bail was refused on the basis that the applicant had failed to show a compelling reason that justified his release on bail.[1]
[1]The first application for bail was further refused on the basis that there was an unacceptable risk that the applicant would commit an offence on bail, endanger the safety or welfare of any person and interfere with a witness or otherwise obstruct the course of justice…

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 Guinane

Details

AGLC: Re Guinane [2020] VSC 208
Case: [2020] VSC 208
Decision Date: 6 April 2020

CaseChat Overview and Summary

The case of Re Guinane was heard in a court in which the applicant sought bail in relation to charges involving family violence offending. The primary concern for the court was whether the applicant presented an unacceptable risk to the community or any person if granted bail. The respondent, representing the state, conceded that there was a compelling reason to grant bail, but argued that the applicant still posed an unacceptable risk due to the nature of the charges and the risk of delay caused by the COVID-19 pandemic. The court was required to weigh the compelling reason for bail against the risk of harm to the community and determine whether the applicant's bail could be granted under the Bail Act 1977.

The court examined several factors in making its decision. It considered the nature and seriousness of the offence, the risk of reoffending, the applicant's criminal history, and the availability of support networks. The applicant had limited prior convictions and was facing their first period in custody, which suggested a lower risk of reoffending. The court also noted that the applicant could reside with their supportive mother and engage in employment while on bail, which provided stability and a strong incentive to abide by bail conditions. Furthermore, the applicant was willing to accept treatment and counselling, and there was a substantial surety available. The court determined that the risk of delay due to COVID-19 was unlikely to exceed any potential custodial sentence, and therefore, the risk to the community was not unacceptable.

After careful consideration of all relevant factors, the court concluded that the applicant did not present an unacceptable risk to the community. The compelling reason for granting bail, combined with the applicant's willingness to accept treatment and counselling, their supportive living situation, and the availability of a substantial surety, outweighed the risk of reoffending. The court granted bail with strict conditions to ensure public safety and the applicant's compliance with the terms of their release. The decision was grounded in the provisions of the Bail Act 1977, particularly sections 4AA, 4C, 4D, and 4E.

Orders