Re Mahat - [2024] VSC 140

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0261

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by SALIH MAHAT

BETWEEN:

SALIH MAHAT	Applicant
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DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2023
DATE OF JUDGMENT:	21 December 2023
DATE OF REASONS:	1 February 2024
CASE MAY BE CITED AS:	Re Mahat
MEDIUM NEUTRAL CITATION:	[2024] VSC 140

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CRIMINAL LAW — Application for bail — Charges relating to family violence against former partner including use of weapons, co‑offenders — PSIOs and FVIOs — Family support — No criminal history — Alcohol and other drug use — Mental health diagnoses — AFTR support and GPS monitoring available — Lack of insight into alleged offending — Exceptional circumstances not demonstrated — Unacceptable risk established — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4AA, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	L Hocking	SLKQ Lawyers
For the Respondent	J McCarthy	Office of Public Prosecutions

HIS HONOUR:

Introduction

This is an application for bail by 24 year old Salih Mahat [‘the applicant’]. He seeks bail in the following matters:

Informant Cox
Alleged offending on 9 May and 7 June 2023; charged on and held in custody since 8 June 2023

(a) attempted armed robbery;

(b) robbery;

(c) reckless conduct endangering life;

(d) intentionally causing injury;

(e) recklessly causing injury;

(f) making threats to kill;

(g) assault with a weapon (two charges);

(h) using a prohibited weapon without exemption/approval;

(i) contravening a family violence intervention order [‘FVIO’] intending to cause harm or fear;

(j) contravening a final FVIO (two charges);

(k) committing an indictable offence whilst on bail; and

(l) contravening certain bail conduct conditions.

Informant Zalewski
Alleged offending between 20 July and 3 September 2022; charged and granted bail on 9 September 2022; bail revoked on 22 June 2023

(a) intentionally causing injury;

(b) recklessly causing injury;

(c) assault with a weapon;

(d) unlawful assault (three charges);

(e) contravening an interim FVIO intending to cause harm or fear (two charges);

(f) contravening an interim FVIO (ten charges);

(g) intentionally damaging property;

(h) persistent contravention of an FVIO (two charges); and

(i) driving whilst suspended.

The applicant is also subject to a summons in the matter of Informant Laoang for alleged offending between March and April 2022. The applicant asserts the matter has resolved on the basis that he will plead guilty to a single charge of providing a false name to police, with the prosecution to withdraw the remaining charges, namely two charges of unlawful assault and one charge of common law assault.

The applicant’s matters are next listed on:

(a) 14 December 2023 at the Melbourne Magistrates’ Court for a contested committal hearing in the informant Cox matter (noting this has since occurred);[1] and

(b) 25 March 2024 at the Sunshine Magistrates’ Court for a…

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 Mahat

Details

AGLC: Re Mahat [2024] VSC 140
Case: [2024] VSC 140
Decision Date: 21 December 2023

CaseChat Overview and Summary

The case before the court involved an application for bail by the respondent, Mahat, against a backdrop of serious charges related to family violence. The charges included the use of weapons and involvement with co-offenders. The applicant was subject to both personal safety intervention orders (PSIOs) and family violence intervention orders (FVIOs), indicating a significant history of violence. The court had to consider the potential for Mahat to reoffend given his history and the exceptional nature of the charges against him.

The primary legal issues the court needed to address were whether the unacceptable risk of reoffending and potential harm to the community outweighed the respondent’s right to liberty. Factors such as Mahat's lack of criminal history, his family support, availability of alternative forms of support like AFTR and GPS monitoring, his alcohol and drug use, and mental health diagnoses were considered. The court also examined the respondent's insight into his alleged offending and whether exceptional circumstances existed that would warrant bail.

In evaluating these factors, the court found that despite the respondent's lack of criminal history and family support, the seriousness and exceptional nature of the charges against him, particularly involving weapons and co-offenders, established an unacceptable risk of reoffending. Mahat's lack of insight into his alleged offending and the potential for harm to the community were significant deterrents to granting bail. The court concluded that exceptional circumstances had not been demonstrated, and therefore, the application for bail was refused under the Bail Act 1977 (Vic).

The final orders of the court were that the respondent's application for bail was refused. The court emphasised the seriousness of the charges and the need to protect the community from potential reoffending. The decision underscored the importance of ensuring public safety, especially in cases involving serious allegations of family violence.

Orders