Re Sepehrnia - [2020] VSC 247

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0059

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Taha SEPEHRNIA

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2020
DATE OF JUDGMENT:	21 April 2020
DATE OF REASONS:	6 May 2020
CASE MAY BE CITED AS:	Re Sepehrnia
MEDIUM NEUTRAL CITATION:	[2020] VSC 247

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CRIMINAL LAW – Bail – Alleged rapes and other offences committed against two consecutive domestic partners – Committed during period of community correction order – Exceptional circumstances test applied – Applicant already on remand for 252 days – Extensive criminal history – Delay – COVID-19 implications – Onerous circumstances of custody – Stable residence, family support and employment – Availability of substantial surety – Serious offending – Carried out in family violence setting – At time of rape of second victim, on bail for rape of first victim – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Anger	Giorgianni & Liang Lawyers
For the Respondent	Mr D Brown	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant Taha Sepehrnia applies for bail in respect of charges laid by two separate informants/respondents, Detective Leading Senior Constable Cornish (‘Cornish’) and Detective Leading Senior Constable Cranage (‘Cranage’). In the case of each respondent, there is a single charge of rape, along with other charges concerning the infliction of injury, the use of threats, the damaging of property, and other offences.

In this case, it is agreed between the parties that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing a Schedule 2 offence, namely, rape, during the period of a community correction order (‘CCO’) imposed in respect of another Schedule 2 offence, namely, failure to answer bail.

Procedural history

The applicant was remanded in custody on these matters on 14 August 2019, upon the expiry of a sentence of imprisonment he had served for an unrelated matter. He has been in custody since that time. On 20 September 2019, he made an application for bail in the County Court. Bail was refused by Judge Dean on the basis that the applicant had failed to establish exceptional circumstances, and that there was an unacceptable risk of further offending.

Commencing on 18 November 2019, the applicant stood trial for some of the matters concerning the respondent Cornish. On 27 November 2019, the jury was discharged without verdict.

On 22 January 2020, the applicant made a further application for bail in the County Court. Bail was refused by Judge Hassan on the basis that the applicant had failed to establish exceptional circumstances, and that there was an unacceptable risk.

Although trial dates were previously…

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 Sepehrnia

Details

AGLC: Re Sepehrnia [2020] VSC 247
Case: [2020] VSC 247
Decision Date: 21 April 2020

CaseChat Overview and Summary

In the case of Re Sepehrnia, the applicant, Sepehrnia, sought bail pending his trial for multiple serious offences including alleged rapes against two different women, committed during the period he was on a community correction order. The application was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the applicant met the exceptional circumstances test for bail, given the gravity of the alleged offences, his extensive criminal history, and the implications of the COVID-19 pandemic on his custody conditions.

The court examined the criteria under the Bail Act 1977, particularly sections 1B, 3AAA, 4, 4A, 4AA, and 4E. The applicant had already spent 252 days on remand, and while he had a stable residence, family support, and employment, these factors were weighed against the seriousness of the offences and the risk he posed to the community. The court noted the applicant's delay in applying for bail and the impact of COVID-19 on his detention conditions, but ultimately found that the exceptional circumstances test was not met. The applicant's extensive criminal history and the nature of the alleged offences, particularly the fact that he was on bail for the rape of the first victim when he raped the second, underscored the unacceptable risk he posed to the community.

After thorough consideration, the court concluded that the applicant did not satisfy the exceptional circumstances test for bail. The gravity of the alleged offences, coupled with the risk he posed to the community, particularly given the family violence context, led the court to refuse bail. The court's decision was firmly rooted in the balance of interests between the applicant's right to liberty and the need to protect the community. The court did not make any final orders beyond the refusal of bail.

Orders