Re Kelly - [2022] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0087

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by Joshua KELLY

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2022
DATE OF JUDGMENT:	12 May 2022
CASE MAY BE CITED AS:	Re Kelly
MEDIUM NEUTRAL CITATION:	[2022] VSC 232

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CRIMINAL LAW – Bail – Contraventions of family violence intervention order, breaches of bail, driving whilst disqualified and other offences – Applicant subject to a number of grants of bail at the time – Alleged offending flagrant and repeated – 39 year old applicant with relevant prior convictions – Poor history of compliance with bail and other orders of courts – Exceptional circumstances test – Bail not opposed by respondent – A matter for Court to determine if exceptional circumstances established – Likely sentence may be exceeded by time on remand - Substantial risk posed by applicant of reoffending – Exceptional circumstances not established - Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Barreiro	Gallant Lawyers
For the Respondent	Mr J Kibel, solicitor advocate	Victoria Police Legal Practice Group

HIS HONOUR:

Introduction

The applicant applies for bail on a 24 charges laid by Detective Senior Constable Benjamin Ryan on 14 February 2022 (‘Second Ryan matter’).

The charges are as follows:

·     Contravene family violence intervention order (‘FVIO’) (four charges).
·     Persistent contravention of FVIO.
·     Contravene a conduct condition of bail (12 charges).
·     Commit an indictable offence whilst on bail (two charges).
·     Drive whilst disqualified (two charges).
·     Use an unregistered motor vehicle (two charges).
·     Possess a drug of dependence.

The charges were laid in the context of numerous charges already faced by the applicant arising from a number of separate incidents.

The parties are in agreement that the Court must refuse bail unless the applicant satisfies me that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of Schedule 2 offences under the Bail Act 1977 (‘the Act’) while subject to a number of undertakings of bail for charges including Schedule 2 offences.[1]
[1]Sections 4AA(2) and 4A(1A).

Pending charges at time of current alleged offending
Leading Senior Constable Rachelle Maher matters (‘Maher matters’)

The applicant was charged by summons on 14 October 2020 with a number of offences allegedly committed on 15 August 2020 when he was intercepted by police driving in Wangaratta. He was a disqualified driver at the time. He provided an oral fluid sample which was found to be positive to methylamphetamine (‘MA’). When asked his reasons for drug driving,[2] the applicant said, ‘I don’t have one’. As for his reason for driving whilst disqualified, he stated that he had picked his car up from around the corner and was taking it home for repairs. The applicant’s vehicle was impounded for…

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 Kelly

Details

AGLC: Re Kelly [2022] VSC 232
Case: [2022] VSC 232
Decision Date: 12 May 2022

CaseChat Overview and Summary

The applicant, Kelly, sought to have his bail conditions varied to allow him to travel interstate. Kelly was currently subject to multiple bail orders and faced allegations of serious offences, including breaches of a family violence intervention order, driving while disqualified, and other charges. The court was required to decide whether there were exceptional circumstances to justify the variation of Kelly’s bail conditions.

The court examined the nature and seriousness of the alleged offences, Kelly’s history of non-compliance with court orders, and the risk he posed to the community. The seriousness of the alleged offending and Kelly’s prior criminal history were significant factors. Additionally, the court considered the likelihood that the potential sentence for these offences might be exceeded by the time Kelly would spend on remand. The court concluded that Kelly had not demonstrated exceptional circumstances that would justify a variation to his bail conditions.

The court found that Kelly's repeated breaches of court orders, coupled with the serious nature of the new charges, indicated a high risk of reoffending if granted further bail. Therefore, the application to vary bail was dismissed. The court emphasised that the decision was based on the substantial risk Kelly posed and the lack of exceptional circumstances that would warrant a change to his current bail conditions.

Orders