Re Stewart - [2022] VSC 245

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0104

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by KYLE STEWART

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2022
DATE OF JUDGMENT:	20 May 2022
CASE MAY BE CITED AS:	Re Stewart
MEDIUM NEUTRAL CITATION:	[2022] VSC 245

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CRIMINAL LAW – Bail – Applicant charged with Schedule 1 drug offence – Need to show exceptional circumstances justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Availability of residential drug treatment, electronic monitoring and a surety – Bail refused – Bail Act 1977, s 3AAA, s 4, s 4AA, s 4 A, s 4D, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Fayman Lawyers
For the Respondent	Ms K Hamill	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

Kyle Stewart (‘the applicant’), aged 27 years,[1] seeks bail from this Court. He has, among others, been charged with a Schedule 1 offence under the Bail Act 1977 (‘the Act’) — trafficking in a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug[2] — and as a result acknowledges that he bears the onus of showing that exceptional circumstances exist justifying the grant of bail.
[1]His date of birth is 6 March 1995.
[2]See sch 1, cl 6(b).
The respondent opposes bail, contending that the applicant poses an unacceptable risk in the ways contemplated by the provisions of s 4E(1) of the Act.

I have concluded that bail should be refused. My reasons follow.

The charges and relevant history

In the circumstances that I will later refer to, the applicant was charged on 25 February 2021 with:

· possessing a firearm in breach of a firearm prohibition order[3] (three charges — charges 1, 2 and 3);
[3]Firearms Act 1996, s 112B.

· being a prohibited person in possession of a firearm[4] (three charges — charges 4, 5 and 6);
[4]Firearms Act 1996, s 5(1).

· possessing a traffickable quantity of firearms[5] (one charge — charge 7);
[5]Firearms Act 1996, s 7C(1).

· trafficking a commercial quantity of a drug of dependence, methylamphetamine[6] (one charge — charge 8);[7]
[6]Dugs, Poisons and Controlled Substances Act 1981, s 71AA.
[7]See [6] below.

· negligently dealing with the proceeds of crime[8] (three charges — charges 9, 10 and 11);
[8]Crimes Act 1958, s 194(4).

· dealing with property reasonably suspected of being the proceeds of crime[9] (three charges — charges 12, 13 and 14);
[9]Crimes Act 1958, s 195.

· unlicensed driving[10] (one charge — charge 20);
[10]Road Safety Act 1986, s 18(1)(a).

· receiving stolen goods[11] (one charge — charge 23);

· commit and indictable offence whilst on bail[12] ( charges — charges 15, 16, 17, 18, 19);…

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 Stewart

Details

AGLC: Re Stewart [2022] VSC 245
Case: [2022] VSC 245
Decision Date: 20 May 2022

CaseChat Overview and Summary

The applicant, Mr Stewart, applied for bail in the Magistrates’ Court of Victoria while facing a charge of trafficking in a commercial quantity of a Schedule 1 drug. The court was required to determine whether exceptional circumstances existed to justify granting bail, given the serious nature of the offence and the risk Mr Stewart posed to the community. The applicant argued that his involvement in a residential drug treatment program, coupled with electronic monitoring and the support of a surety, would mitigate the risk of him committing another offence while on bail.

The court considered the provisions of the Bail Act 1977, particularly sections 3AAA, 4, 4AA, 4A, 4D, and 4E, which outline the criteria for granting bail and the factors that may be considered. The court weighed the risk of Mr Stewart reoffending against the conditions proposed for his release, ultimately finding that the risk of reoffending was too high. The court found that despite the proposed conditions, the serious nature of the offence and the potential for harm to the community if Mr Stewart reoffended were significant factors against granting bail. Consequently, the application for bail was refused.

The court's reasoning and conclusion led to the formal refusal of bail for Mr Stewart. The decision was based on the balance of the considerations under the Bail Act, focusing on the risk to the community and the need to ensure justice is served. The final orders of the court were that Mr Stewart remain in custody pending the outcome of his criminal proceedings.

Orders