Re Ss (No 2) - [2021] VSC 526

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0175

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
DATE OF HEARING:	20 August 2021
DATE OF JUDGMENT:	20 August 2021
DATE OF REASONS	25 August 2021
CASE MAY BE CITED AS:	Re SS (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 526

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CRIMINAL LAW – Bail – Breach of condition of supervision order – Unlawful assault – Applicant subject to a supervision order under Serious Offenders Act 2018 – Ordered to reside in Rivergum Residential Treatment Centre (‘Rivergum’) pursuant to intensive treatment and supervision condition - Alleged offending during the course of an excursion away from Rivergum for a dental appointment – Desirability of applicant returning to treatment – Secure nature of facility – Whether sufficient to ensure security and safety of applicant, other residents and staff – Whether appropriate that applicant return to Rivergum while charges pending – Only short delay until hearing of contested charges – Compelling reason not made out – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Vietri	Marshall Jovanovska Ralph Criminal Lawyers
For the Respondent	Ms R Champion	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applied for bail on a number of charges he faces in respect of incidents which occurred on 9 July 2021. The charges are of contravening a condition of a supervision order pursuant to s 169(1) of the Serious Offenders Act 2018 (‘SOA’)(2 charges) and unlawful assault.

The charges of contravening a condition of a supervision order are offences contained within Schedule 2 of the Bail Act 1977 (‘the Act’), meaning that the compelling reason test applied to this application. This meant that I was required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail.

Having heard the application, I refused the application, on the basis that the applicant had failed to discharge the burden resting upon him of establishing, to my satisfaction, a compelling reason that justified the grant of bail. I indicated for completeness that even had I been satisfied of the existence of a compelling reason, I would have been satisfied that the applicant posed an unacceptable risk of endangering the safety or welfare of a person or of committing an offence while on bail.

I indicated at the time of announcing my decision that I would publish detailed reasons for the decision at a later time. These are those reasons.

Background

The applicant was convicted of murder in 2000. He was made subject to a supervision order (‘SO’) under the SOA on 23 August 2019. The order permitted the applicant to reside in the community. On a review of that SO on 8 January 2021, the order 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 (No 2)

Details

AGLC: Re Ss (No 2) [2021] VSC 526
Case: [2021] VSC 526
Decision Date: 20 August 2021

CaseChat Overview and Summary

In the matter of Ss, the court addressed the application for bail from the applicant who was subject to a supervision order under the Serious Offenders Act 2018. The applicant was ordered to reside at the Rivergum Residential Treatment Centre as part of an intensive treatment and supervision condition. The applicant had been charged with an unlawful assault that allegedly occurred during an excursion from Rivergum for a dental appointment. The court was tasked with determining whether it was appropriate for the applicant to return to Rivergum while the charges were pending.

The central legal issues revolved around the desirability of the applicant returning to Rivergum, the secure nature of the facility, and whether it was sufficient to ensure the security and safety of the applicant, other residents, and staff. The court also had to consider whether there was a compelling reason for the applicant to be granted bail, particularly in light of the short delay until the hearing of the contested charges. The court found that there was an unacceptable risk if the applicant was released on bail, and thus, a compelling reason was not made out.

The court concluded that the security and safety concerns at Rivergum were significant, and the risks of the applicant committing further offences were too high to warrant bail. Consequently, the court refused the application for bail, adhering to the provisions of the Bail Act 1977. The court found that it was not appropriate for the applicant to return to Rivergum while the charges were pending.

No further orders were made by the court beyond the refusal of bail.

Orders