Re Mazzitelli - [2020] VSC 288

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0095

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by FRANCESCO MAZZITELLI

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF JUDGMENT:	19 May 2020
DATE OF REASONS:	21 May 2020
CASE MAY BE CITED AS:	Re Mazzitelli
MEDIUM NEUTRAL CITATION:	[2020] VSC 288

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CRIMINAL LAW – Bail – Family violence offences and attempting to pervert the course of justice – Some criminal history including convictions for failing to answer bail and breaching conditions of bail – Bail granted and revoked on two previous occasions in this case – Continuing use of illicit drugs by applicant in breach of conditions of bail – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Brennan	Emma Turnbull Lawyers
For the Respondent	Mr J Lewis	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applied for bail in respect of a number of charges contained on an indictment filed against him. The charges were of intentionally causing injury (3 charges), common assault (8 charges), making a threat to inflict serious injury (2 charges), attempting to pervert the course of justice (2 charges) and being a prohibited person in possession of an imitation firearm (2 charges).[1]
[1]The indictment indicated there were two charges of this offence, although only one was contained in the Summary of Statement of Offence. Both charges in the indictment were dated 18 September 2018. The body of the indictment was numbered incorrectly, showing two charges numbered as ‘14’. The Summary of Prosecution Opening referred to two events which could have been the subject of an offence of being a prohibited person in possession of an imitation firearm. One event took place on 10 September 2018 when the applicant allegedly pointed a gun at the complainant before threatening her. The other occurred on 18 September 2018 when an imitation firearm was found during the execution of a search warrant at the home of the applicant.

It was agreed between the parties that bail was required to be refused unless the applicant could demonstrate that exceptional circumstances existed that justified his release on bail. This was so for a number of reasons as set out in the affidavit in response to the application for bail. I need not refer to these now.

Having heard the application, I determined that the applicant had failed to discharge the onus resting upon him of establishing exceptional circumstances. Furthermore, I was of the view that even had the applicant succeeded in discharging the above onus, I would have concluded that the respondent had proved that the risk posed by the applicant of reoffending or endangering the community if released on bail would be unacceptable.

I therefore…

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 Mazzitelli

Details

AGLC: Re Mazzitelli [2020] VSC 288
Case: [2020] VSC 288
Decision Date: 19 May 2020

CaseChat Overview and Summary

The applicant, Mr Mazzitelli, sought bail in relation to multiple family violence offences and an attempt to pervert the course of justice. His application was heard in the Magistrates’ Court of Victoria. Mr Mazzitelli had a history of criminal activity, including convictions for failing to answer bail and breaching bail conditions. This was his third bail application in relation to the current charges, having had bail previously granted and revoked on two occasions. The court was required to decide whether Mr Mazzitelli met the criteria for bail under the Bail Act 1977, considering the seriousness of the offences, the risk of reoffending, and the risk to the community if bail were granted.

The court examined the principles set out in the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, and 5AAAA. It found that the seriousness of the offences, including the family violence component, was high. The court also considered Mr Mazzitelli’s criminal history, including his failure to comply with bail conditions on previous occasions. The continuing use of illicit drugs by the applicant, despite the conditions of bail, further contributed to the risk assessment. The court concluded that exceptional circumstances had not been established and that the risk of reoffending and risk to the community were unacceptable. As a result, the application for bail was refused.

In reaching its decision, the court weighed the need to protect the community against the right to liberty of the applicant. The court found that the risk of reoffending was too high given the applicant's history and current behaviour. The orders made by the court included the refusal of bail and the direction that Mr Mazzitelli remain in custody pending the outcome of his trial.

Orders