Re Matemberere - [2018] VSC 762

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0303

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by Allen Matemberere

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Application for Bail by Allen Matemberere
MEDIUM NEUTRAL CITATION:	[2018] VSC 762

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CRIMINAL LAW – Application for bail – Applicant charged with series of offences related to armed robbery – Shortly before offending applicant received 12 month adjourned undertaking without conviction for unrelated offending pursuant to s 75 of the Sentencing Act 1991 – Whether subsequent offending occurred while applicant ‘serving a sentence’ for the purpose of s 4AA(2)(c)(v) of the Bail Act 1977 – Whether exceptional circumstances test applies – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson SC	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr P Smallwood with Ms C Blackeney	Greg Thomas Barristers and Solicitors

HIS HONOUR:

The applicant, Allen Matemberere, aged 28, was arrested on 5 September 2018 and charged with the following offences: armed robbery, intentionally causing injury, threat to inflict serious injury, assault in company and theft.

These offences arose out of an incident that occurred on the afternoon of that same day, when the applicant and a co-accused entered a residence occupied by the complainant in this matter. The applicant is alleged to have assaulted the complainant by punching him to the left side of his face, and to have threatened to kill or injure him. The applicant and his co-accused are alleged to have stolen the complainant’s rings and watch.

The complainant and the applicant were known to each other. It is alleged that they had conflicts in the past, where the complainant alleges that the applicant had physically assaulted him, and the applicant alleges that the complainant had racially abused him.

The applicant first applied for bail at the Melbourne Magistrates’ Court on 5 October 2018. Bail was refused on the basis that he had not shown exceptional circumstances.

The matter is currently listed for a contested committal hearing on 15 January 2019. The applicant has been in custody since 5 September 2018. He currently has one other matter outstanding, involving the offences of burglary and theft which are alleged to have been committed on 19 July 2018. The applicant has not yet been served with the summons in relation to those matters.

The applicant’s co-accused is facing one charge of armed robbery. On 29 October 2018, he indicated, at a committal mention, his intention to plead guilty. His matter is currently listed for plea on 23 January 2019 in the County Court. He did not apply for bail.

The alleged offending

The prosecution case is that at approximately 1:27 pm on 5 September 2018, the applicant and the co-accused attended the residence of an associate at a unit in South…

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 Matemberere

Details

AGLC: Application for Bail by Allen Matemberere [2018] VSC 762
Case: [2018] VSC 762
Decision Date: 7 December 2018

CaseChat Overview and Summary

The case of Re Matemberere involved an application for bail by the applicant, who was charged with a series of offences related to armed robbery. The applicant had a recent history of criminal activity, including receiving a 12-month adjourned undertaking without conviction for unrelated offences under section 75 of the Sentencing Act 1991, which was imposed just before the charged offences. The central issue before the court was whether the applicant was "serving a sentence" for the purposes of section 4AA(2)(c)(v) of the Bail Act 1977, and consequently, whether the exceptional circumstances test applied. The court was required to determine whether the applicant's recent receipt of an adjourned undertaking without conviction constituted a sentence that would preclude bail in relation to the new charges.

The court considered the meaning of "serving a sentence" and whether it included periods under an adjourned undertaking without conviction. It was noted that the statutory language and legislative intent were central to this interpretation. The court held that the applicant was indeed "serving a sentence" at the time of the new offences due to the recent imposition of the adjourned undertaking. Consequently, the exceptional circumstances test applied, and the applicant did not meet the criteria for bail. The court emphasised that the applicant's recent criminal conduct and the nature of the new charges supported the denial of bail. The applicant's criminal history and the seriousness of the alleged armed robbery offences were deemed sufficient to outweigh any presumption in favour of bail.

Ultimately, the court refused the application for bail. The seriousness of the new charges, combined with the applicant's recent criminal activity and the applicability of the exceptional circumstances test, led the court to conclude that bail should not be granted. The court's decision underscored the importance of recent criminal conduct and the nature of the alleged offences in determining bail applications.

Orders