Ripohau v Director of Public Prosecutions

[2018] VSC 117

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0054

IN THE MATTER of an Application for Bail by Teira Ripohau

Between:

TEIRA RIPOHAU	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	16 March 2018
CASE MAY BE CITED AS:	Ripohau v DPP
MEDIUM NEUTRAL CITATION:	[2018] VSC 117

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CRIMINAL LAW – Application for bail pending appeal against sentence to County Court – Charge of trafficking a drug of dependence (methamphetamine) – Charge of breaching community correction order (“CCO”) by non-compliance – Total effective sentence of three months’ imprisonment plus CCO – Applicant spent five weeks in custody – Imprisonment component of sentence will expire before appeal to be heard – Applicant on bail without incident leading up to hearing in Magistrates’ Court – Prior convictions, including for drug offences and breaching CCO – Bail not opposed by DPP – Whether applicant has “shown cause why his detention in custody is not justified” – Whether applicant, if bailed, presents unacceptable risk of further offending etc – Bail granted on own undertaking with residential, reporting and curfew conditions – Bail Act 1977 (Vic), s 4.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K. Ljubicic	Farrelly Legal, Warrnambool
For the Respondent	Ms K. Churchill	John Cain, Solicitor for Public Prosecutions

HIS HONOUR:

Overview

1. On 12 February 2018, Teira Ripohau pleaded guilty at a contest mention hearing in the Magistrates’ Court at Warrnambool to a charge of trafficking (simpliciter) in a drug of dependence (methamphetamine)[1] between 13 and 24 December 2016 and a charge of contravening a community correction order (“CCO”)[2] imposed on 4 November 2016 by various failures to comply with its conditions in June/July 2017.  The magistrate sentenced Mr Ripohau to three months’ imprisonment on the trafficking offence and to two months’ imprisonment on the CCO offence, to be served concurrently.  His Honour also varied the original CCO and directed that it commence upon Mr Ripohau’s release from prison and run for a period of 18 months.[3]

   [1] Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

   [2] Contrary to s 83AD(1) of the Sentencing Act 1991 (Vic).

   [3] See s 83AS of the Sentencing Act 1991 (Vic).

1. The same day, Mr Ripohau lodged an appeal against sentence to the County Court and then applied for bail pending appeal to the magistrate who had just sentenced him.[4]  Bail was refused.  While his Honour’s reasons are not available, the “refusal grounds” listed in the certified extract of the Court’s order are: “appeal follows acceptance of sentence indication” and “appeal hearing in February 2018 likely to be available”.

   [4] Pursuant to s 265 of the Criminal Procedure Act 2009 (Vic).

1. Mr Ripohau now applies to this Court for bail.  In order to succeed on that application, because he is charged with drug-trafficking (simpliciter), he must show cause why his detention in custody is not justified.[5]  The Bail Act 1977 (Vic) also provides that the Court shall refuse bail if satisfied that there is an unacceptable risk that the applicant, if released on bail, would fail to answer bail, commit an offence while on bail, endanger the safety or welfare of the public or interfere with witnesses or otherwise obstruct the course of justice.[6]

   [5] See s 4(4)(ca) of the Bail Act 1977 (Vic).

   [6] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).

1. Having considered the materials and counsel’s submissions made this morning, I am satisfied that Mr Ripohau has shown cause why his detention in custody is not justified and I am not satisfied that, if granted bail, he would present an unacceptable risk of further offending or the like.  Accordingly, I have determined to grant Mr Ripohau’s application and release him on bail on his own undertaking with certain conditions.

1. In the particular circumstances of this case, I can state my reasons very briefly, to which I now turn.

Reasons

1. First, as things have turned out, Mr Ripohau’s appeal is not listed until the County Court sittings in Warrnambool commencing 4 June 2018.  By that stage, the imprisonment component of his sentences will have expired, as he is due for release on 11 May 2018.  Thus, if he were not granted bail, his appeal would be rendered all but nugatory.  While the Director has indicated that she would not oppose an application to bring the appeal on sooner, there is no guarantee that any such application would succeed.  As it happens, Ms Ljubicic, who appears for Mr Ripohau in this Court, advised that inquiries with the Registry of the County Court revealed that the earliest the matter could be heard in Melbourne is mid-May.  Thus, I must proceed on the basis of the current listing date, which, as I have indicated, is nearly a month after Mr Ripohau’s prison sentence will expire.  In my view, this factor alone is sufficient to show cause why bail should be granted.

1. Secondly, Mr Ripohau has a stable address to which to be bailed.  While it is of some concern that that is the same address at which he was living when the drug-trafficking occurred, and while Mr Ripohau has some prior convictions (including for drug-trafficking (simpliciter) and contravening a CCO imposed for that offending, which is the same CCO that has been breached a second time by non-compliance), the informant does not consider the address to be unsuitable for a residential condition of bail.

1. Thirdly, the Director does not submit that there is unacceptable risk that, if bailed, Mr Ripohau would commit further offences, fail to appear, endanger the public or interfere with witnesses or otherwise obstruct the course of justice.  Indeed, Ms Churchill, who appears for the Director in this Court, indicated that bail is not opposed.  While the Director notes that Mr Ripohau has a history of trafficking and using drugs, she also concedes that bail was not opposed when he was originally charged and that he has complied with his bail conditions in the interim.  Nevertheless, the Director’s position is that, if bail is granted, there should be a static residential condition, a reporting condition and a curfew so as to ensure that any risk of offending is not at an unacceptable level.  Ms Ljubicic indicated that those conditions would not be opposed.

1. I think that the foregoing matters, in combination, compel the view that Mr Ripohau has shown cause why his detention in custody is not justified.  Further, while I am not satisfied that there is any unacceptable risk of the kind spelt out in the Act, I too would be more comfortable in limiting such risks as there might be by the imposition of conditions of the type suggested by the Director.

Order

1. Accordingly, Mr Ripohau (“the applicant”) will be admitted to bail on his own undertaking on the following conditions:

1)The applicant is to reside at 78 Curdies Street, Cobden, in the State of Victoria (his “residence”).

2)The applicant is to report to the officer-in-charge of the Colac Police Station each Monday and Friday between 6:00 a.m. and 9:00 p.m.

3)The applicant is not to be absent from his residence between the hours of 9:00 p.m. and 6:00 a.m.

4)The applicant is to appear at the County Court at Warrnambool at 9:30 a.m. on 4 June 2018 and thereafter as directed by that court.