Re Ss - [2020] VSC 618

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0237

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by SS

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 and 22 September 2020
DATE OF JUDGMENT:	23 September 2020
CASE MAY BE CITED AS:	Re SS
MEDIUM NEUTRAL CITATION:	[2020] VSC 618

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CRIMINAL LAW – Bail – Applicant on supervision order (‘SO’) under Serious Offenders Act 2018 after completion of sentence for murder – Condition of order that applicant comply with any direction given by Post Sentence Authority (‘PSA’) in respect of the operation of any condition – Direction by PSA to applicant not to record supervision and treatment sessions – Following repeated warnings, applicant allegedly taped numerous sessions – Prior conviction for breaching condition of SO prohibiting use of drugs – Hearing of charges to be adjourned pending preparation of full brief of evidence – Pending proceedings for other alleged breaches of SO and review of SO - Delay – COVID-19 – Personal circumstances indicative of some instability in life of applicant – Level of compliance with SO – Compelling reason not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Vietri	Victoria Legal Aid
For the Respondent	Ms C Parkes	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail in respect of 11 charges of contravening the conditions of a supervision order and two charges of committing an indictable offence whilst on bail.

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 was on a supervision order at the time of the alleged offending,[1] and also because he was on bail for another indictable offence at the time.[2]
[1]Bail Act 1977, Schedule 2, item 28.
[2]Ibid, item 1.

Background

The applicant was convicted of murder in 1998 and received a long term of imprisonment. On 23 August 2019, shortly before his term of imprisonment was to expire, I made a supervision order (‘SO’) for six years under the Serious Offenders Act 2018. The SO included conditions prohibiting the use of drugs of dependence and to submit to testing, imposing a curfew, and requiring compliance with electronic monitoring. There was also a condition authorising the Post Sentence Authority (‘PSA’) to give directions to the applicant in relation to the operation of any condition of the SO, and requiring the applicant to comply with any such direction.

As a result of events which occurred from the time of the commencement of the SO, the Secretary to the Department of Justice and Community Safety (‘the Secretary’) applied for a review of the SO. That review was due to come…

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 [2020] VSC 618
Case: [2020] VSC 618
Decision Date: 23 September 2020

CaseChat Overview and Summary

The applicant, who had previously been convicted of murder, sought bail while on a supervision order under the Serious Offenders Act 2018. The court was required to determine whether bail should be granted to the applicant, who had allegedly breached conditions of the supervision order by recording sessions despite explicit directions not to do so. The matter came before the court as the applicant faced charges for breaching the supervision order. The legal issues included whether the applicant had established a compelling reason for bail under the Bail Act 1977 and whether it was in the interests of justice to grant bail considering the risk to the community.

The court noted the applicant's personal circumstances, including some instability, but found that this did not constitute a compelling reason for bail. The court also considered the risk to the community and the repeated breaches of the supervision order conditions. The applicant's history of non-compliance, including a prior conviction for breaching a condition prohibiting drug use, was significant. The court held that the risk of reoffending was unacceptable, and thus, bail was refused. The court found that the applicant had not shown a compelling reason for bail, and the risk to the community was too high, especially in light of the alleged recording of supervision sessions.

The court concluded that the risk to the community, coupled with the applicant's history of non-compliance, outweighed any potential compelling reasons for granting bail. The applicant's alleged actions in recording supervision sessions despite clear directions not to do so indicated a disregard for the conditions of the supervision order. The court determined that the risk of reoffending was unacceptable and that granting bail would not be in the interests of justice. The court's decision was influenced by the need to protect the community and the applicant's demonstrated lack of compliance with legal conditions.

Orders