43 YEAR OLD APPLICANT CONVICTED OF BREACHING FAMILY VIOLENCE AND INTERVENTION ORDERS APPLIES FOR BAIL
Re Dinatale [2021] VSC 104 (9 March 2021)
This is an application for bail against the appellant on a large number of charges he faces principally alleging family violence and intervention order breaches in respect of his wife and two young children.
Facts:
The offending is alleged to have been committed over a period of years but mainly in the period from November 2019 to October 2020. The applicant was arrested on 9 September 2020 with some continued offending alleged after that time by virtue of telephone calls made by the applicant from prison. The applicant has been in custody since his arrest.
The applicant is 43 years old and has no criminal convictions. He has been in custody for almost six months by the time of the hearing, and will have been in custody for in excess of nine months by the time of the committal. A trial sometime in 2023 would mean a period in excess of two years, and approaching three years of pre-trial remand. As against that, and acknowledging the seriousness of the offending, there was a strong possibility that any sentence received by the applicant should he be found guilty would be exceeded by the time spent on remand.
Issue: Should the applicant be released on bail?
Law:
- Bail Act 1977 SS.1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
Analysis:
The applicant has no prior convictions. There is one matter which proceeded as a diversion, and there are some other pending charges, but the fact of his having reached the age of 43 without accruing any criminal convictions is a very significant matter when bail is being considered.
Should the court be willing to grant bail the residence of the applicant would be with his parents at an address far away from the scene of his alleged misconduct towards his wife and children. His mother, who would act as surety, has undertaken to keep a close eye on him and to report any infractions. The indications are that the applicant, with the guidance of his father, has begun to move on, to the extent of instructing lawyers to act on his behalf in divorce proceedings. There is no indication of any ongoing desire to contact his wife and family, although the risk that he may seek to do so cannot be dismissed.
The applicant has been in custody already for almost six months. Should these matters go to trial and he remain in custody until then, the period of remand will exceed two years and may approach three years. Notwithstanding the seriousness of the offending, it seems to be highly likely that such a period on remand would exceed any term of imprisonment. This is an important matter in the consideration of the question of whether the applicant has discharged the onus upon him in the first step of the bail process, and would also be important should the second step arise for consideration.
The applicant has discharged the burden resting upon him of proving the existence of exceptional circumstances that justify the grant of bail.
Conclusion: The applicant is hereby released on bail.
