Re Mangion - [2024] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0325

IN THE MATTER of the Bail Act 1977 (Vic)

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IN THE MATTER of an Application by MM

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 January 2024
DATE OF RULING:	25 January 2024
DATE OF REASONS:	12 February 2024
CASE MAY BE CITED AS:	Re MM
MEDIUM NEUTRAL CITATION:	[2024] VSC 23

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CRIMINAL LAW — Application for bail — Charges of sexually penetrating a child or lineal descendant, producing child abuse material, administering an intoxicating substance for a sexual purpose — Delay — Mild intellectual disability — No criminal history — Support from ACSO and Flat Out — Strength of the prosecution case — History of drug use and mental health — Family support and stable accommodation — Compelling reasons satisfied — Unacceptable risk not found — Bail granted with strict conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	J McGarvie	Stary Norton Halphen
For the Respondent	P Pathmaraj	Office of Public Prosecutions

HIS HONOUR:

Introduction

MM [‘the applicant’] is a 28 year old woman who presents with a mild intellectual disability and who has no criminal history. She is currently facing, and seeks bail on, four charges of sexually penetrating a child or lineal descendant;[1] two charges of producing child abuse material;[2] and two charges of administering an intoxicating substance for a sexual purpose.[3]
[1]Contrary to s 50C(1) of the Crimes Act 1958 (Vic).
[2]Contrary to s 51C(1) of the Crimes Act 1958 (Vic).
[3]Contrary to s 46 of the Crimes Act 1958 (Vic).

The applicant has one co‑accused, WT, who is her former partner and the father of her biological son ST. WT also has two daughters, BT and MT, to a former partner. He has pleaded guilty to one charge of producing child abuse material; one charge of distributing child abuse material; four charges of incest; two charges of administering an intoxicating substance for a sexual purpose; and one charge of possessing child abuse material. He is currently serving a custodial sentence for those offences.

The applicant intends to contest the charges against her on the basis of alleged duress by the co‑accused.

Procedural history

Between October 2020 and August 2021, police undertook an investigation into WT’s activities after child abuse material depicting his children (one of whom he shared with the applicant) was identified on online platforms.

On 11 August 2021, WT was arrested, charged and remanded in custody.

On 22 October 2021, the applicant was arrested, charged and released on bail. At the time, the applicant was pregnant and it was a higher‑risk time to be in custody due to the COVID‑19 pandemic.

On 6 May 2022, the applicant was committed to stand trial in the County Court. She remained on bail pursuant to a grant of trial bail made in the Magistrates’ Court. The trial was fixed to commence on 24 May 2023.

On 30 October 2022, the applicant was arrested…

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 Mangion

Details

AGLC: Re Mangion [2024] VSC 23
Case: [2024] VSC 23
Decision Date: 25 January 2024

CaseChat Overview and Summary

The case of Re Mangion involved the applicant seeking bail from the Supreme Court of Victoria. The applicant faced charges including sexually penetrating a child or lineal descendant, producing child abuse material, and administering an intoxicating substance for a sexual purpose. The prosecution opposed bail due to the gravity of the charges and concerns about potential flight risk and reoffending. The applicant, however, argued for bail citing a mild intellectual disability, lack of criminal history, and support from the ACSO and Flat Out. The central legal issues before the court were whether the applicant met the criteria for bail under the Bail Act 1985 and whether the compelling reasons for denying bail outweighed the applicant's right to liberty.

The court considered various factors, including the severity of the charges, the applicant's intellectual disability, history of drug use and mental health issues, support from community organisations, and family support and stable accommodation. The court found that the applicant's intellectual disability, while a mitigating factor, did not automatically warrant bail. However, the applicant's lack of criminal history, support from community organisations, and stable family environment were significant factors in favour of bail. The court also noted the strength of the prosecution case, which included explicit images and allegations of serious sexual offences. Ultimately, the court concluded that compelling reasons for denying bail were not satisfied, and the risk of reoffending or failing to appear was not unacceptably high. The court granted bail with strict conditions to mitigate potential risks.

The court's decision hinged on a careful balancing of the applicant's rights and the interests of justice. It emphasised the importance of strict conditions to ensure the applicant's compliance and to protect potential victims. The final orders included conditions such as regular check-ins with support services, a curfew, and restrictions on contact with minors. The applicant was also required to reside at a specified address and to submit to electronic monitoring. These conditions aimed to address the court's concerns while allowing the applicant to prepare for their defence in a supportive environment.

Orders