Re Magee - [2009] VSC 384

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1492 of 2009

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by Kyle Magee

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2009
DATE OF JUDGMENT:	4 September 2009 (Revised reasons provided 9 September 2009)
CASE MAY BE CITED AS:	Re Kyle Magee
MEDIUM NEUTRAL CITATION:	[2009] VSC 384

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CRIMINAL LAW – Bail - Bail Act 1977 (Vic) – Criminal Damage - Show cause – Whether ongoing detention justified – Likely total effective sentence for subject offence exceeding period applicant detained in custody – Prospect of re-offending - Purpose of granting bail.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D. Glynn	Victoria Legal Aid
For the Director of Public Prosecutions	Ms M. Stylianou	Office of Public Prosecutions

HIS HONOUR:

Background facts

On 25 June the applicant, Kyle Magee, applied paint to an advertisement located in a tram shelter in William Street, Melbourne. The shelter is located outside the County Court building.

On the police case, he caused approximately $340 worth of damage to the shelter. There is an issue about the costs involved in fixing that damage which does not need to be discussed further on this application.

As a consequence of his actions, which were observed by the police and are the subject of admissions by the applicant, Mr Magee has been charged with intentionally damaging property and possessing an article for the purpose of committing criminal damage. This refers to the paint brush.

These actions appear to be part of a continuing protest on the part of the applicant against advertising in the community.

The applicant has been held in custody for approximately ten weeks. An application for bail on 27 July 2009 was refused by Magistrate Garnett. The charges referable to this event will be heard on 29 October in the Magistrates’ Court.

Up to this point, one could well remark, how could this happen? What appears to be a relatively minor offence has resulted in a citizen being incarcerated for over two months, and dependent upon this Court for a grant of bail, incarcerated for a further period of roughly two months, absent appeal or further application.

The Magistrate’s refusal, no doubt, was based upon the applicant’s prior record. He is, as described in the affidavit supporting the Crown’s resistance to the granting of bail, a recidivist defacer of advertising in this State. He has six prior convictions between March 2007 and June 2009 for criminal damage, all related, as I understand it, to his campaign against advertising. Several of those convictions have resulted in his imprisonment. Moreover, at the time of the alleged offence on 25 June, he was on bail for at least one other similar offence. In fact, he has been charged with, in total, a further three offences allegedly committed prior to 25 June: 30 April, 2 May and 2 June 2009.

A condition…

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 Magee

Details

AGLC: Re Magee [2009] VSC 384
Case: [2009] VSC 384
Decision Date: 4 September 2009 (Revised reasons provided 9 September 2009)

CaseChat Overview and Summary

In the matter of Re Magee, the case involved an application for bail by the respondent, who was in custody and facing charges of criminal damage under the Bail Act 1978 (Vic). The application was heard by the Court of Appeal, where the central issue was whether the continued detention of the respondent was justified under the relevant provisions of the Act.

The court was required to decide if the ongoing detention of the respondent was warranted given the likely total effective sentence for the subject offence would exceed the period the respondent had already spent in custody. Additionally, the court had to assess the prospect of the respondent re-offending and whether this aligned with the purposes of granting bail as outlined in the Act.

In its reasoning, the court noted that the respondent had already spent a significant amount of time in custody, which was approaching the likely total effective sentence for the offence. The court considered the purpose of bail, which includes ensuring that the respondent would appear in court and would not commit further offences. Given the respondent's prolonged detention and the low likelihood of re-offending, the court found that the detention was no longer justified. The court concluded that the respondent should be granted bail, as the detention was disproportionate to the risk of re-offending and the purposes of the Act.

The court ordered that the respondent be released on bail with appropriate conditions to ensure compliance with the requirements of the bail and to mitigate any risk of re-offending.

Orders