Re Schembri - [2017] VSC 722

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0273

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by PAUL SCHEMBRI

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2017
DATE OF JUDGMENT:	29 November 2017
CASE MAY BE CITED AS:	Re Schembri
MEDIUM NEUTRAL CITATION:	[2017] VSC 722

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CRIMINAL LAW – Bail – Multiple charges – Trafficking a drug of dependence in a quantity not less than a commercial quantity – Charges of trafficking and possessing drugs of dependence, using false documents and dealing with property suspected of being the proceeds of crime – Requirement to show ‘exceptional circumstances’ – Whether exceptional circumstances made out – Relevance of no prior convictions and first time in custody – Relevance of availability of surety, family support and ties to jurisdiction – Strength of Crown case – Extent of delay - Exceptional circumstances not shown – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J Malobabic	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr H Rattray	Balmer & Associates Pty

HIS HONOUR:

On 11 October 2017, the applicant was arrested and charged with trafficking in a drug of dependence (MDMA) in a quantity not less than the commercial quantity contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’). He was also charged with trafficking in a drug of dependence (two charges, MDMA and cocaine); seven charges of possessing a drug of dependence, including possessing MDMA, cocaine, GHB, methylamphetamine, steroidal agents and various tablets; six charges of using false documents in different names contrary to s 83A(2) of the Crimes Act 1958; and five charges of dealing with property suspected of being the proceeds of crime.

On 25 October 2017, the applicant applied to a magistrate for bail. The application was refused.

On 3 November 2017, the applicant filed an application for bail in this Court. Because the applicant is charged with trafficking a drug of dependence in a quantity that is not less than the commercial quantity applicable to that drug contrary to s 71AA of the DPCSA, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
[1]Section 4(2)(aa)(i) of the Bail Act 1977 (‘the Act’).

In his notice of intention to make application for bail, the applicant asserts that exceptional circumstances are made out on a combination of the following factors:

·no prior convictions;
·first time in custody;
·availability of substantial surety;
·family support;
·ties to the jurisdiction; and
·the applicant’s personal circumstances generally.

This morning, counsel for the applicant advanced two further matters which, in combination with the above matters, were said to give rise to exceptional circumstances. The two further matters are delay and the strength of the Crown case on the issue of the quantity of the drug the subject of the commercial quantity charge.

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 Schembri

Details

AGLC: Re Schembri [2017] VSC 722
Case: [2017] VSC 722
Decision Date: 29 November 2017

CaseChat Overview and Summary

Re Schembri involved an application for bail by a person charged with multiple drug-related offences, including trafficking a drug of dependence in a quantity not less than a commercial quantity. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the applicant had demonstrated ‘exceptional circumstances’ that warranted the grant of bail, considering the serious nature of the charges and the potential penalties.

The court considered several factors, including the applicant's criminal history, which showed no prior convictions, and the fact that this was their first time in custody. The court also weighed the availability of a surety, the applicant's family support, and their ties to the jurisdiction. However, the court gave significant weight to the strength of the Crown's case and the extent of the delay in the proceedings. Ultimately, the court concluded that the exceptional circumstances necessary for bail had not been demonstrated, and the application was refused.

The court found that the gravity of the charges, particularly the commercial scale of the alleged drug trafficking, heavily weighed against the grant of bail. The potential penalties, including lengthy imprisonment, further underscored the importance of ensuring that the applicant did not reoffend or interfere with the course of justice. The court also noted that the applicant had been in custody for a considerable period, which mitigated against the need for immediate bail. The court's decision was based on a comprehensive assessment of all relevant factors, leading to the conclusion that the exceptional circumstances required for bail had not been established.

The final orders of the court were that the application for bail was dismissed, and the applicant remained in custody pending the outcome of the criminal proceedings.

Orders