Re Kerbage - [2022] VSC 179

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0045

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by SAMMY KERBAGE

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2022
DATE OF JUDGMENT:	22 March 2022
CASE MAY BE CITED AS:	Re Kerbage
MEDIUM NEUTRAL CITATION:	[2022] VSC 179

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CRIMINAL LAW — Application for bail — Charges of trafficking in a drug of dependence, possessing a drug of dependence, possessing a prohibited weapon, breach of bail — Delay — Strength of prosecution case — Availability of treatment and bail support services — Exceptional circumstances established — Risk of flight — Risk not unacceptable with conditions — Bail granted with strict conditions — Bail Act 1977(Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Timothy Smurthwaite	SPA Lawyers
For the Respondent	Belinda Cowley	Victoria Police

HIS HONOUR:

Introduction

By application dated 23 February 2022, Sammy Kerbage (‘the applicant’) seeks a grant of bail from this Court in relation to two matters, one brought by Leading Senior Constable David Burton and the other by Constable Sandeep Chauhan.

Informant Burton matter

On 5 September 2020 the applicant was arrested and charged with the following twelve offences, relating to events alleged to have occurred on 4 September 2020:

(a)Trafficking in a drug of dependence (two charges);
(b)Possessing a drug of dependence (four charges);
(c)Dealing with property suspected to be the proceeds of crime (five charges); and
(d)Dealing with proceeds of crime.

On 7 September 2020, the applicant was granted bail in the Frankston Magistrates’ Court, subject to conditions.

Informant Chauhan matter

On 3 August 2021, the applicant was arrested, charged and remanded on the following 22 charges, arising from the execution of search warrants at an apartment in Frankston on the same day:

(a)Committing an indictable offence whilst on bail;
(b)Contravening a conduct condition of bail;
(c)Trafficking in a drug of dependence (five charges);
(d)Possessing a drug of dependence (five charges);
(e)Possessing a controlled weapon;
(f)Possessing a prohibited weapon (four charges);
(g)Possessing an unregistered handgun;
(h)Being a prohibited person in possession of a firearm;
(i)Dealing with property suspected to be the proceeds of crime;
(j)Possessing ammunition without a licence; and,
(k)Possess an item for the purposes of trafficking. The Burton and Chauhan matters are next listed in Frankston Magistrates’ Court on 22 March 2022, with the former for mention and latter for contest mention.

There is one co-accused in both matters, Amanda Puyk. She is said to face similar charges to the applicant in the Chauhan matter.

The application

The application is supported by the affidavit of Richard Jakobson, solicitor, dated 23 February 2022, attaching a series of exhibits, some of which will be referred to below. The applicant filed a five page written submission and supplemented these with oral submissions on the hearing of the application, as well as calling the…

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 Kerbage

Details

AGLC: Re Kerbage [2022] VSC 179
Case: [2022] VSC 179
Decision Date: 22 March 2022

CaseChat Overview and Summary

The matter of Re Kerbage involved an application for bail by the defendant, who faced serious criminal charges. These included trafficking in a drug of dependence, possessing a drug of dependence, possessing a prohibited weapon, and breach of bail. The case was heard in the County Court of Victoria. The central legal issues revolved around whether the defendant was eligible for bail, given the nature and severity of the charges against him, and whether the risk of him fleeing could be sufficiently mitigated by imposing certain bail conditions.

The court considered various factors, including the strength of the prosecution’s case, the availability of treatment and bail support services, and the exceptional circumstances surrounding the defendant's application. The prosecution argued against bail, citing the severity of the charges and the risk of flight. However, the court found that exceptional circumstances were established and that the risk of flight could be managed through strict bail conditions. The court concluded that the risk was not unacceptable if appropriate conditions were imposed, and thus granted bail with stringent conditions.

The court outlined specific conditions for the defendant's release, which included strict reporting requirements, electronic monitoring, and strict limitations on his movements. These conditions were deemed necessary to address the risk of flight and to ensure the defendant would comply with the terms of his bail. The final orders reflected the court’s determination that while the charges were serious, the risk of flight could be adequately managed through the imposition of these stringent conditions.

Orders