Re Stephan - [2022] VSC 130

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0036

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by ROBERT STEPHAN

---

JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF JUDGMENT:	16 March 2022
CASE MAY BE CITED AS:	Re Stephan
MEDIUM NEUTRAL CITATION:	[2022] VSC 130

---

CRIMINAL LAW – Bail application – Compelling reason test – Bail opposed – Unacceptable risk – Applicant has relevant prior convictions involving use of a firearm – Alleged offending involves use of a firearm – Delay – Availability of electronic monitoring by private company – Whether proposed conditions sufficient to ameliorate risk – Compelling reason established however the applicant is an unacceptable risk of committing an offence whilst on bail, and endangering the safety and welfare of any person – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4C, 4D and 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Milides Lawyers
For the Respondent	Mr Z Petric	Office of Public Prosecutions

HER HONOUR:

The applicant applies for bail on charges of kidnapping, blackmail, intentionally causing injury, threat to kill, threat to inflict serious injury (alternative charge), assault (alternative charge), reckless conduct endangering life, unlawful discharge of a firearm at premises and damaging property.

The alleged offending

On 13 or 14 May 2021, Brodie Reichle (‘Reichle’) arranged for Raymond Stephan (‘Raymond’) to supply cannabis to a third party. Raymond attended as arranged, and was set upon. His cash, cannabis and personal belongings valued at $20,000 were stolen. Raymond, who is the applicant’s son, blamed Reichle for setting him up. Reichle agreed to meet Raymond at an address in Coburg North on 17 May 2021.

Incident One – “the shooting incident”

On 17 May 2021, the applicant and Raymond exchanged text messages and arranged to attend at an address in Truganina. That address was the residence of Dion Kaa-Weeds (‘Kaa-Weeds’), a friend of Reichle’s. Also residing at that address was Kaa-Weeds’ father and his eight year old sister. At around 8:30pm, the applicant, Raymond, Wayne Favaloro (‘W.Favaloro’) and Ricky Favaloro (‘R.Favaloro’) travelled to the address in the applicant’s Holden Commodore. One of the males exited the car and fired three shots into the garage door. The three shots penetrated the steel roller door. One bullet ricocheted off the ceiling into the floor. The other two bullets went through the internal plaster walls at the end of the garage, and lodged in the far bedroom wall of Kaa-Weed’s sister. She was in another room at the time.

Incident Two – “the kidnapping incident”

The four offenders left in the Holden Commodore. Kaa-Weeds messaged Reichle and told him what had occurred, and Reichle messaged Raymond and arranged to meet him at the Coburg North address. The applicant, Raymond and R.Favaloro travelled in the Holden Commodore to the address. W.Favaloro and a fifth unknown male travelled in another vehicle.…

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 Stephan

Details

AGLC: Re Stephan [2022] VSC 130
Case: [2022] VSC 130
Decision Date: 16 March 2022

CaseChat Overview and Summary

The matter before the court was an application for bail by Stephan, who was facing charges of armed robbery and making threats to kill. The prosecution opposed the application, arguing that Stephan posed an unacceptable risk to the community if released on bail. The court had to determine whether there was a compelling reason for Stephan's release on bail and whether any proposed conditions could sufficiently mitigate the risk he posed.

The court considered the legal principles set out in the Bail Act 1977 (Vic), which required the balancing of the presumption in favour of bail against the risk that Stephan may not attend court or reoffend if released. The court noted Stephan's history of violence and his prior convictions involving firearms, which were relevant to the risk he posed. The court also considered the alleged offending, which involved the use of a firearm, and the potential delay in the proceedings. The court was satisfied that there was a compelling reason for Stephan's release on bail, however, it was not satisfied that the proposed conditions were sufficient to mitigate the risk he posed.

The court found that Stephan was an unacceptable risk of committing an offence whilst on bail, and endangering the safety and welfare of any person. The court rejected the suggestion that electronic monitoring by a private company could sufficiently mitigate the risk. The court considered that Stephan's history of violence and prior convictions involving firearms, coupled with the nature of the alleged offending, made it likely that he would reoffend if released on bail. The court was also concerned about the potential for harm to the community if Stephan was released without sufficient conditions. The court refused Stephan's application for bail.

The court ordered Stephan to remain in custody until his trial. The court noted that its decision was not a reflection on Stephan's ultimate guilt or innocence, but rather a consideration of the risk he posed if released on bail. The court emphasised the importance of balancing the presumption in favour of bail with the need to protect the community from unacceptable risks posed by those charged with serious offences.

Orders