Re Mm - [2020] VSC 691

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0242

IN THE MATTER OF the Bail Act 1977 (Vic)	Crown
v
IN THE MATTER of an application for bail by MM	Accused

---

JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2020
DATE OF RULING:	20 October 2020
CASE MAY BE CITED AS:	Re MM
MEDIUM NEUTRAL CITATION:	[2020] VSC 691

---

CRIMINAL LAW – Application for bail – Charges of trafficking in large commercial quantity of a drug of dependence – Firearms offences – Availability of place at residential rehabilitation facility – Anticipated delay due to COVID-19 – Exceptional circumstances not established – Unacceptable risk established – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Phillip Dunn QC	Sarah Tricarico Lawyers
For the Respondent	Ms Ruth Champion	Office of Public Prosecutions

HER HONOUR:

Introduction

MM (‘the applicant’) has been in custody since 10 July 2020 on suspicion of drug trafficking and related offending. He was charged by Senior Constable Christopher Hammond (‘the Informant’) on 11 July 2020 with:

(a) Charge 1: Trafficking in a drug of dependence in a quantity not less than a large commercial quantity, namely amphetamine, contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’);

(b) Charge 2: Attempting to traffick in a drug of dependence in a quantity not less than a large commercial quantity, namely amphetamine, contrary to s 71(1) of the DPCS Act;

(c) Charge 3: Trafficking in a drug of dependence in a quantity not less than a commercial quantity, namely amphetamine, contrary to s 71AA of the DPCS Act;

(d) Charge 4: Attempting to traffick in a drug of dependence in a quantity not less than a commercial quantity, namely amphetamine, contrary to s 71AA of the DPCS Act;

(e) Charge 5: Trafficking in a drug of dependence, namely amphetamine, contrary to s 71AC of the DPCS Act;

(f) Charge 6: Attempting to traffick in a drug of dependence, namely amphetamine, contrary to s 71AC of the DPCS Act;

(g) Charge 7: Possessing a drug of dependence, namely amphetamine, contrary to s 73(1) of the DPCS Act;

(h) Charge 8: Possession of a traffickable quantity of firearms contrary to s 7C of the Firearms Act 1996 (Vic)(‘Firearms Act’);[1]
[1]Pursuant to s 7C of the Firearms Act, if the applicant is found guilty of this offence, he cannot be convicted of charges 9 – 16, as noted by Ms Champion for the Crown during the hearing on 6 October 2020.

(i) Charges 9 to 12: Possessing a firearm as a prohibited person contrary to s 5(1) of the Firearms Act (four charges);

(j) Charges 13 to 16: Possessing an unregistered general category handgun contrary to s 7B (1) of the Firearms Act (four charges);

(k) Charge 17: Cultivation of a narcotic plant, namely 2 cannabis plants, contrary to s 72B…

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 Mm

Details

AGLC: Re MM [2020] VSC 691
Case: [2020] VSC 691
Decision Date: 20 October 2020

CaseChat Overview and Summary

The applicant, Mm, applied for bail in the County Court of Victoria in relation to charges of trafficking in a large commercial quantity of a drug of dependence and various firearms offences. The charges were brought under the Crimes Act 1958 (Vic) and the Drug Misuse Act 1986 (Vic). Mm sought bail on the basis of the availability of a place at a residential rehabilitation facility, as well as the anticipated delay in the proceedings due to COVID-19.

The court was required to determine whether the applicant had made out a sufficient case for bail under the Bail Act 1977 (Vic). In particular, the court needed to consider whether exceptional circumstances existed which would warrant the applicant's release on bail, and whether the applicant posed an unacceptable risk to the community if released. The court also had to take into account the seriousness of the charges, the likelihood of the applicant attending court if released on bail, and the interests of justice.

The court found that the applicant had not established exceptional circumstances which would warrant his release on bail. While the availability of a place at a residential rehabilitation facility was a relevant consideration, it did not outweigh the seriousness of the charges and the risk posed by the applicant to the community. The court also noted that the anticipated delay in the proceedings due to COVID-19 was not a sufficient ground for granting bail. The court concluded that the applicant posed an unacceptable risk to the community if released on bail, and that it was in the interests of justice to refuse bail.

The final orders of the court were that the application for bail be refused. The court noted that its decision was not based on any prejudice against the applicant, but rather on the specific circumstances of the case and the need to protect the community.

Orders