Re Martinow - [2019] VSC 118

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0018

IN THE MATTER of an appeal by the Director of Public Prosecutions under s 18A of the Bail Act 1977 against an order granting bail to Nathan Martinow

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2019
DATE OF JUDGMENT:	27 February 2019
CASE MAY BE CITED AS:	Re Martinow
MEDIUM NEUTRAL CITATION:	[2019] VSC 118

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CRIMINAL LAW – Appeal by Director of Public Prosecutions against Magistrate’s order granting bail – Whether reasonably open to Magistrate to find exceptional circumstances – Whether Magistrate should have found that the accused was an unacceptable risk – Failure by Magistrate to give reasons – Discretion re-opened – No exceptional circumstances – Unacceptable risk – Appeal upheld – Bail revoked – Section 18A Bail Act 1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Gibson SC	Office of Public Prosecutions
For Martinow	Mr S N Andrianakis	N/A

HIS HONOUR:

Introduction

This is an appeal by the Director of Public Prosecutions (the ‘Director’)[1] against a decision of a Magistrate on 18 January 2019 granting bail to Mr Nathan Martinow (the ‘Respondent’) who is charged with aggravated home invasion and other offences.[2]
[1]The full Grounds of Appeal read as follows:
[2]The Respondent’s charges are:
·     aggravated home invasion with an offensive weapon on 9 September 2018 (Charge 1);
·     aggravated burglary with an offensive weapon on 9 September 2018 (Charge 2);
·     intentionally causing injury to Nicholas Gold on 9 September 2018 (Charge 3);
·     making a threat to kill (two counts – Charges 4 and 5); and
·     assaulting Nicholas Gold on 9 September 2018.

The circumstances of the alleged offending, which is alleged to have occurred in September 2018, are set out in my earlier judgment revoking the bail of the Respondent’s three co-accused and I do not propose to repeat them here.[3]
[3]Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81, [1]–[27].

Contrary to s 12A of the Bail Act 1977 (Vic) (the ‘Act’), the learned Magistrate failed to give reasons for his decision granting bail. The Respondent correctly concedes that the consequence of that failure is that the Court’s discretion is reopened and I must now consider the question of bail afresh.

Accordingly, the Respondent who is charged with a ‘Schedule one offence’ under the Act must satisfy me that there are exceptional circumstances justifying a grant of bail.[4] If the Respondent discharges that onerous burden, he is entitled to bail unless the Director satisfies me that the Respondent is an ‘unacceptable risk’.[5]
[4]Bail Act 1977 (Vic), s 4AA.
[5]Section 4D of the Bail Act 1977 (Vic) sets out the ‘unacceptable risk test’:
(1) A bail decision maker must apply the unacceptable risk test if—
(a)at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or
…

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 Martinow

Details

AGLC: Re Martinow [2019] VSC 118
Case: [2019] VSC 118
Decision Date: 27 February 2019

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions sought to appeal against a Magistrate's order granting bail to the respondent, Martinow. The central issue before the court was whether the Magistrate had erred in law in granting the respondent bail, specifically whether it was reasonably open to the Magistrate to find exceptional circumstances and whether the Magistrate should have found that the respondent posed an unacceptable risk to the community. Additionally, the court considered whether the Magistrate's failure to provide reasons for the bail decision constituted an error that warranted reopening the exercise of discretion.

The court found that the Magistrate had not identified any exceptional circumstances that would justify the granting of bail. Furthermore, the Magistrate did not consider the factors that pointed to the respondent being an unacceptable risk, which included the nature of the offence, the respondent's criminal history, and the risk of reoffending. The court emphasised that the Magistrate's failure to address these considerations meant that the exercise of discretion was not properly exercised. As a result, the court concluded that the appeal should be upheld, and the bail revoked. The court determined that there were no exceptional circumstances present, and the respondent was indeed an unacceptable risk to the community.

The final orders of the court were that the appeal against the Magistrate's bail decision was upheld. The Magistrate's order granting bail was quashed, and the respondent was to be remanded in custody until the disposal of the criminal proceedings against him. This decision underscores the importance of properly considering all relevant factors when determining bail applications and the need for Magistrates to provide adequate reasons for their decisions.

Orders