Re Momcilovic - [2008] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 798 of 2008

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by VERA MOMCILOVIC

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2008
DATE OR ORDER:	12 September 2008
DATE OF JUDGMENT:	22 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 183

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CRIMINAL LAW – Bail pending appeal – Whether exceptional circumstances – Whether appeal against conviction ‘bound to succeed’ – Concession of sentencing error by Crown – Likelihood that custodial portion of sentence will be reduced on appeal – Risk that before appeal can be heard applicant will have served longer period than minimum custodial term likely to be fixed on re-sentencing – Re Zoudi (2006) 14 VR 580 applied by analogy – Bail granted – Re DBA [2008] VSCA 138 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C W Beale	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Mr Rob Melasecca

MAXWELL P,

WEINBERG JA:

On 12 September 2008, the Court granted the applicant bail pending her appeal. We indicated that we would publish our reasons later. These are those reasons.

The applicant was convicted in the County Court, at Melbourne, on 23 July 2008, on one count of trafficking in a drug of dependence. On 20 August 2008 she was sentenced to a term of two years and three months’ imprisonment with a non-parole period of 18 months. A period of 28 days was declared as having been served. The applicant then sought bail from this Court pending applications for leave to appeal against both conviction and sentence.

The circumstances surrounding the commission of this offence can be briefly stated. The applicant was the owner and occupier of a unit in Regency Towers in Exhibition Street, Melbourne. She lived there together with one Velimir Markovski who was, at the relevant time, her boyfriend. The evidence was that he trafficked regularly in amphetamines, using the unit as a base for his business. When a search warrant was executed upon the premises, a quantity of just under 400 grams of methylamphetamine was located, mainly in the kitchen, and particularly in a bar fridge and freezer.

The applicant claimed that she was unaware of the presence of drugs in her unit. She was faced with the difficulty of having to overcome a deeming provision in relation to knowledge by reason of the operation of s 5 of the Drugs, Poisons and Controlled Substances Act1981, as well as a presumption of trafficking by reason of the quantum of the drugs found. The jury’s verdict makes it clear that they were not persuaded by her evidence that she knew nothing of her boyfriend’s drug related activities in her unit.

The principles that govern applications for bail pending appeal are well established. They were recently restated by this Court in Re Zoudi.[1] Bail pending appeal will…

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 Momcilovic

Details

AGLC: Re Momcilovic [2008] VSCA 183
Case: [2008] VSCA 183
Decision Date: 22 September 2008

CaseChat Overview and Summary

In the matter of Re Momcilovic, the applicant, who was convicted of several criminal offences, sought bail pending an appeal against his conviction and sentence. The case was heard in the Court of Appeal. The primary issue for the court was whether the applicant had demonstrated exceptional circumstances that would warrant the granting of bail pending appeal. Additionally, the court had to determine whether the appeal against conviction was bound to succeed, particularly in light of the Crown's concession of a sentencing error and the likelihood that the custodial portion of the applicant's sentence would be reduced on appeal. The court also considered the risk that, if bail were not granted, the applicant would serve a longer period in custody than the minimum custodial term likely to be imposed upon re-sentencing.

The court's reasoning was influenced by the case of Re Zoudi, where it was held that exceptional circumstances could include situations where an appeal against conviction is likely to succeed, and the applicant may otherwise serve a longer term in custody than the minimum likely to be imposed on re-sentencing. The Crown's concession of a sentencing error and the likelihood of a reduced custodial sentence on appeal were significant factors. The court noted that the applicant had a strong prospect of success on appeal and that the concession of error by the Crown indicated a high probability of a reduction in the custodial sentence. The risk of the applicant serving a longer term in custody before the appeal could be heard was also a critical consideration. The court referenced the decision in Re DBA, which emphasised the importance of the applicant's right to challenge their conviction and sentence without unnecessary delay.

Given the exceptional circumstances, the court concluded that it was appropriate to grant bail pending appeal. The likelihood of success on appeal, the concession of sentencing error, and the potential for the applicant to serve an unduly lengthy term in custody before the appeal could be heard were all compelling reasons for granting bail. The court's decision was grounded in the need to balance the applicant's right to appeal against the interests of the community and the finality of criminal convictions.

The final orders of the court were that the applicant be granted bail pending the hearing of the appeal against his conviction and sentence. The court set specific conditions for the bail, including a requirement for the applicant to reside at a specified address and to surrender his passport. The applicant was also required to report to a specified police station on a regular basis.

Orders