Re Kelmendi - [2008] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1646 of 2008

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for bail by MERGIN KELMENDI

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2008
DATE OF RULING:	15 February 2008
CASE MAY BE CITED AS:	Re Mergin Kelmendi
MEDIUM NEUTRAL CITATION:	[2008] VSC 31

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CRIMINAL LAW – Application for bail – Unacceptable risk – Application for bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Office of Public Prosecutions
For the Applicant	Mr B. Johnston	Revill & Papa Lawyers

HIS HONOUR:

This is an application for bail by Mr Mergin Kelmendi.

The application for bail was filed on 4 February 2008 and is supported by an affidavit sworn by his solicitor on the same date.

The application is opposed by the Crown and an affidavit in opposition to bail has been sworn by Ms Rebecca Radley — a solicitor from the Office of Public Prosecutions. A further affidavit was filed which outlined the history of the matter since the first hearing before the Melbourne Magistrates’ Court in October 2007.

No witnesses were called on the application before me.

Mr Kelmendi is 31 years of age and is presently held in custody at the Metropolitan Remand Centre. He is charged with some 40 counts of theft, two counts of assault (one with a weapon) and two counts of possessing a controlled weapon without excuse. The offences are alleged to concern thefts of items valued at approximately $80,000 from supermarkets and pharmacies. The case against him seems very strong at least as to the majority of the charges.

The offences were alleged to have been committed over a period of some months and in a wide variety of locations. During one such offence Mr Kelmendi is alleged to have threatened a staff member of a store with a knife as he was leaving.

Some of these offences are said to have been committed with an accomplice who has pleaded guilty to some eight counts of theft and has served a period of imprisonment.

Mr Kelmendi was arrested on 5 October 2007 and remanded in custody on 8 October 2007. He has been custody ever since.

It now appears that the earliest date this matter will be dealt with is 17 March 2008, depending on whether the applicant seeks a committal or summary jurisdiction and how he pleads. The Crown has indicated a willingness to consent to the jurisdiction of the Magistrates’ Court dependent on the course the applicant takes. The affidavits filed by the Crown indicate that this matter has been adjourned on a number of occasions on behalf of the applicant, the most recent such adjournment being applied for and granted two days before I heard the bail application.

Mr Kelmendi has an extremely long criminal history dating back to the age of 17 years. His numerous previous convictions include many…

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 Kelmendi

Details

AGLC: Re Kelmendi [2008] VSC 31
Case: [2008] VSC 31
Decision Date: 15 February 2008

CaseChat Overview and Summary

In the matter of Re Kelmendi, the applicant sought bail from the court, which ultimately refused the application. The case involved criminal proceedings against the applicant, who was facing charges that necessitated the consideration of bail terms. The court was tasked with determining whether the applicant posed an unacceptable risk to the community if released on bail.

The primary legal issue before the court was whether the applicant's release on bail would present an unacceptable risk to the community, taking into account the nature and seriousness of the charges, the likelihood of reoffending, and any other relevant factors. The court considered evidence and submissions from both parties, evaluating the risk posed by the applicant's release.

After carefully weighing the evidence and arguments presented, the court concluded that the applicant did indeed pose an unacceptable risk to the community. The court found that the charges were serious, and there was a significant likelihood of reoffending if the applicant were released on bail. Consequently, the application for bail was refused, and the applicant remained in custody pending the outcome of the criminal proceedings. The court's decision was based on the assessment that the interests of justice were best served by keeping the applicant detained.

Orders