Re Pecori - [2023] VSC 777

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0302

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an Application for Bail by Anthony Pecori

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2023
DATE OF JUDGMENT:	20 December 2023
CASE MAY BE CITED AS:	Re Pecori
MEDIUM NEUTRAL CITATION:	[2023] VSC 777

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CRIMINAL LAW – Bail – Charges of rape, intentionally causing serious injury, and reckless conduct endangering life – Allegation of forceful pressure applied to throat of complainant in course of rape – Very serious offending - 23 year old applicant with no prior convictions – First time in custody - Strong family support – Long-term treatment for psychological issues – Condition that applicant would live far away from the area of his offending and home of complainant – Exclusion zone to enforce geographical isolation – Compelling reason established – Unacceptable risk not made out – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Nathwani SC with Mr R de Kretser	James Dowsley & Associates
For the Respondent	Ms G McMaster	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail in respect of charges he faces of intentionally causing serious injury (‘ICSI’), reckless conduct endangering life (‘reckless conduct’) and rape.

It is agreed between the parties that I must refuse bail unless the applicant satisfies me that a compelling reason exists that justifies the grant of bail. This is because the applicant is charged with two offences, namely ICSI and rape, which are contained within Schedule 2 of the Bail Act 1977 (‘the Act’).

The respondent concedes in the affidavit in response and in the oral submissions of Ms McMaster that it would be open to the Court to be satisfied of the existence of a compelling reason that justifies the grant of bail. Bail is nonetheless opposed on the basis that the applicant is an unacceptable risk of endangering the safety or welfare of a person, committing an offence whilst on bail, or interfering with witnesses or otherwise obstructing the course of justice.

Procedural history

The applicant was arrested, charged and remanded on 4 December 2023.

He applied for bail in the Melbourne Magistrates’ Court in a hearing which proceeded on 5 and 6 December 2023. The application was refused by the learned magistrate on the basis that the applicant had failed to establish the existence of a compelling reason that justified the grant of bail.

On 5 December 2023, an interim personal safety intervention order (‘PSIO’) was made against the applicant in the Melbourne Magistrates’ Court.[1] The protected person under the order is the complainant BM,[2] and the order prohibits the applicant from stalking, approaching, communicating with, or attempting to locate the protected person, amongst other things.
[1]Case number P12565861.
[2]Name initialised to…

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 Pecori

Details

AGLC: Re Pecori [2023] VSC 777
Case: [2023] VSC 777
Decision Date: 20 December 2023

CaseChat Overview and Summary

The applicant in this case, a 23-year-old with no prior convictions, was facing charges of rape, intentionally causing serious injury, and reckless conduct endangering life. The allegations included the application of forceful pressure to the throat of the complainant during the alleged rape. The case was heard in the court of first instance, where the primary issue was whether bail should be granted to the applicant given the severity of the charges and the nature of the alleged offences.

The court needed to determine whether the applicant presented an unacceptable risk to the community or the complainant if released on bail. Key considerations included the applicant’s age, lack of criminal history, strong family support, and ongoing treatment for psychological issues. The applicant also proposed to live far from the area of his alleged offending and the complainant’s home, with conditions to enforce geographical isolation. The court assessed whether these factors constituted a compelling reason for bail and whether the risk to the community or the complainant was unacceptable.

The court found that the applicant's lack of criminal history, coupled with strong family support and ongoing psychological treatment, constituted a compelling reason for granting bail. The stringent conditions, including a relocation and an exclusion zone, were deemed sufficient to mitigate any potential risk to the community or the complainant. Consequently, the court concluded that the unacceptable risk was not made out and granted bail on stringent conditions. The decision hinged on the specific provisions of the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4AA, 4C, 4D, and 4E, which the court applied in assessing the bail application.

Orders