Re Ss - [2023] VSC 712

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0259

Between:
SS	Applicant
-and-
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	27 & 28 November 2023
DATE OF ORDERS:	28 November 2023
DATE OF WRITTEN REASONS:	30 November 2023
CASE MAY BE CITED AS:	Re SS
MEDIUM NEUTRAL CITATION:	[2023] VSC 712

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CRIMINAL LAW — Application for bail — Charges of using methylamphetamine, breaching condition of supervision order, offending while on bail, and resisting arrest — Five police officers went to applicant’s home to arrest him for breaching supervision order by using methylamphetamine — Applicant resisted physically when, while bleeding from the nose, he was not allowed by police to take unknown tablet — Applicant indicates plea of guilty to resisting arrest but not guilty to charges based on use of methylamphetamine — Applicant on bail for charge of breaching condition of supervision order — Extensive criminal history — Applicant in custody for over a month since arrest — Short delay until potential guilty plea on resist charges, but significant delay until contested hearing on charges based on use of methylamphetamine — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of offending and endangering safety of others — Delay until final resolution of charges likely to exceed length of total prison sentence, if convicted — Exceptional circumstances established — Strictures of supervision order reduce risk of offending so as not be unacceptable — Bail granted on own undertaking with condition to comply with supervision order — Serious Offenders Act 2018 (Vic), ss 169 & 173‑175; Drugs, Poisons and Controlled Substances Act 1980 (Vic), s 75; Bail Act 1977 (Vic), s 30B; Crimes Act 1958 (Vic), s 31(1)(b); Summary Offences Act 1966 (Vic), s 51(2); Criminal Procedure Act 2009 (Vic), s 413; Sentencing Act 1991 (Vic), ss 10AB & 10A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Pearson	Balmer & Associates Pty
For the Respondent	Ms R Champion	Office of Public Prosecutions

HIS HONOUR:

Overview

On 28 November 2023, when delivering my reasons ex tempore on this application for bail, the applicant SS’s elderly mother tripped and fell face‑first onto the floor of the Court. Quick as a flash, SS rushed to his mother’s aid, as did others in the Court. Understandably, SS and his mother appeared distressed, as we all were.

In those circumstances, instead of continuing with my reasons, I considered it preferable to stop, to make an order granting bail on the spot (as I had foreshadowed), and to defer giving my complete reasons in writing at a later date. Ms Champion, who appeared for the Director of Public Prosecutions, and Mr Pearson, who appeared for SS, agreed with this course. These are those reasons (which I shall leave largely in the present tense, as if delivered when the order was made).

Background

SS was arrested on 26 October 2023. His application for bail the next day was…

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 Ss

Details

AGLC: Re Ss [2023] VSC 712
Case: [2023] VSC 712
Decision Date: 28 November 2023

CaseChat Overview and Summary

The applicant, a person with a substantial criminal history, sought bail while awaiting trial for charges including the use of methylamphetamine, breaching a supervision order, offending while on bail, and resisting arrest. The application was heard in the County Court of Victoria. The applicant had been arrested and remanded in custody after resisting arrest by police officers who went to his home to apprehend him for breaching a supervision order by using methylamphetamine. The applicant had resisted when police prevented him from taking an unknown tablet while he was bleeding from the nose. The applicant indicated he would plead guilty to resisting arrest but denied the charges based on methylamphetamine use.

The court had to determine whether exceptional circumstances existed to justify the applicant's bail, and if, if bailed, there was an unacceptable risk of the applicant offending or endangering others' safety. The applicant's criminal history and the potential delay until the contested hearing on the drug charges, which could exceed any likely prison sentence if convicted, were considered. The court held that exceptional circumstances existed, and the strictures of the supervision order sufficiently mitigated the risk of the applicant offending. The court granted bail on the applicant's own undertaking and imposed conditions to comply with the supervision order.

The court ordered that the applicant be released on bail subject to certain conditions. These included compliance with the supervision order, reporting to a nominated police station, and refraining from possessing or consuming methylamphetamine. The applicant was also required to submit to random drug testing and to abide by a curfew. The court further ordered that the bail application be listed for further mention to address any issues arising from the ongoing proceedings.

Orders