Re Hipworth

[2007] VSC 565

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

BAIL APPLICATION

No. 1626 of 2007

IN THE MATTER of the Bail Act 1997

And

IN THE MATTER of an Application for Bail of JAMES ALEXANDER HIPWORTH

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2007
DATE OF JUDGMENT:	21 December 2007
CASE MAY BE CITED AS:	In the matter of James Alexander Hipworth
MEDIUM NEUTRAL CITATION:	[2007] VSC 565

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Criminal – Bail – Whether exceptional circumstances

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr R Gibson	Office of Public Prosecutions
For the Applicant	Mr PA Dunn QC and Mr C Pearson	Balot Reilly

HIS HONOUR:

1. The bail application before the Court is made by James Alexander Hipworth who is charged and held on remand, charged with four counts involving trafficking of prohibited drugs.  Two of the charges are charges that he trafficked large commercial quantities.  They are such that in order to obtain bail he must show exceptional circumstances which justify the granting of bail.

1. The applicant is a young man of about 30 years of age who has lived his early years in Tasmania.  The first exceptional circumstance offered by counsel on his behalf are the prospect of a considerable delay.  It was said that up to two years will pass between his arrest in November – 2 November – and the trial date which may be achieved following committal, assuming he is committed for trial.  There is some issue about that.  One thing, however, is certain.  The brief hand-up date is fixed for 18 January 2008 and the committal mention for 28 February 2008.  I think, on any view, from what I have heard about the case, the delay between now and trial is likely to be most of next year at the most optimistic. 

1. The second exceptional circumstance is the lack of relevant prior convictions.  This fact was not challenged by the prosecution.

1. The third circumstance depends upon the circumstances in which he lives and would like to live.  First, he has lived, for a little while now, with his mother and two, or possibly three, of his brothers.  His mother, who gave evidence before me, spoke of a serious illness which is troubling her but no medical evidence has been provided.  Nevertheless, I have no reason to doubt that she is seriously ill.  She said that it would be a comfort to her to have her sons with her and, in this particularly stressful time, that is understandable.  She says on the other hand, that she would provide support, as would the other members of the family, for the young man during the period in which he was on bail, if bail is granted.  The proposal is that he should live with her and that she would, in effect, supervise his observance of the conditions of bail which might be imposed.

1. The charges, as I have indicated, are serious and no argument was presented at this early stage, that is, before the hand-up brief has been delivered, on the basis that the prosecution case was a weak one.  If so, this may amount to an exceptional circumstance. 

1. Much of the debate before me was directed towards the prospect that the applicant might abscond or, in some other way, not comply with any conditions of bail.  The primary question, however, is as to exceptional circumstances.  When it is all said and done, the only circumstance which really carries any weight in this regard must be the long delay.  True it is that Mr Hipworth’s conduct, if it be criminal as the Crown alleged, will bring great hardship not only upon himself but those who are dependent upon him financially and emotionally.  This is regrettably a consequence of criminal activity.

1. In the circumstances of this case, I am not prepared to grant bail.  The delay until trial is not inordinate.  I am not satisfied that the applicant has discharged the heavy burden which lies on him of showing exceptional circumstances. 

1. The application will be refused.

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