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Compelling Reasons to Grant Bail

Schedule 2 Offences

If you are charged with a Schedule 2 offence, the onus is on you to satisfy the bail decision maker that there are “compelling reasons” why your remand is not justified. ‘Show Compelling’ reasons is an expression that was introduced into the amendments made to the Bail Act 1977 (Vic) in May 2018.

The Supreme Court of Victoria handed down a decision in the matter of Re Ceylan [2018] VSC 361 decided that a person in the ‘show compelling reasons’ category must demonstrate something ‘forceful’ and ‘convincing’ as to why their remand is not justified. The bail decision maker must consider and balance all of the applicant’s personal circumstances including the strength of the Prosecution case.[1]

The following is a list of Schedule 2 offences:

  1. An indictable offence that is alleged to have been committed by the accused—

a) while on bail for another indictable offence; or

b) while subject to a summons to answer to a charge for another indictable offence; or

c) while at large awaiting trial for another indictable offence; or

d) during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence; or

e) while released under a parole order.

  1. Manslaughter
  1. Child homicide.
  1. An offence against section 15A(1) of the Crimes Act 1958(causing serious injury  intentionally in circumstances of gross violence).
  1. An offence against section 15B(1) of the Crimes Act 1958(causing serious injury recklessly in circumstances of gross violence).
  1. An offence against section 16 of the Crimes Act 1958 (causing serious injury intentionally).
  1. An offence against section 20 of the Crimes Act 1958 (threats to kill) that is also a family violence offence.
  1. An offence against section 21A(1) of the Crimes Act 1958(stalking) and—

a) the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which the accused used or threatened to use violence against any person; or

b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom the accused is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.

  1. An offence against section 38(1) of the Crimes Act 1958(rape).
  1. An offence against section 39(1) of the Crimes Act 1958(rape by compelling sexual penetration).
  1. An offence against section 42(1) of the Crimes Act 1958(assault with intent to commit a sexual offence).
  1. An offence against section 47(1) of the Crimes Act 1958(abduction or detention for a sexual purpose).
  1. An offence against section 49A(1) of the Crimes Act 1958(sexual penetration of a child under the age of 12).
  1. An offence against section 49B(1) of the Crimes Act 1958(sexual penetration of a child under the age of 16) in circumstances other than where at the time of the alleged offence the child was 12 years of age or more and the accused was not more than 2 years older than the child.
  1. An offence against section 49J(1) of the Crimes Act 1958(persistent sexual abuse of a child under the age of 16).
  1. An offence against section 49P(1) of the Crimes Act 1958(abduction or detention of a child under the age of 16 for a sexual purpose).
  1. An offence against any of the following provisions of Subdivision (8C) of Division 1 of Part I of the Crimes Act 1958(incest) in circumstances other than where both people are aged 18 or older—

a) section 50C(1) (sexual penetration of a child or lineal descendant);

b) section 50D(1) (sexual penetration of a step‑child);

c) section 50E(1) (sexual penetration of a parent, lineal ancestor or step-parent);

d) section 50F(1) (sexual penetration of a sibling or half-sibling).

  1. An offence against section 37, 37A, 123 or 123A of the Family Violence Protection Act 2008 of contravening a family violence intervention order or family violence safety notice (as the case requires) in the course of committing which the accused is alleged to have used or threatened to use violence and –

a) the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence against any person; or

b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order or notice, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.

  1. An offence against section 125A(1) of the Family Violence Protection Act 2008 (persistent contravention of notices and orders).
  1. An offence against section 100 of the Personal Safety Intervention Orders Act 2010 of contravening an order in the course of committing which the accused is alleged to have used or threatened to use violence and—

a) the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which the accused used or threatened to use violence against any person; or

b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.

  1. An offence against section 63A of the Crimes Act 1958(kidnapping).
  1. An offence against any of the following provisions of the Crimes Act 1958 

a) section 75A(1) (armed robbery);

b) section 77 (aggravated burglary);

c) section 77A (home invasion);

d) section 79 (carjacking);

e) section 197A (arson causing death);

f) section 318(1) (culpable driving causing death);

g) section 319(1) or (1A) (dangerous driving causing death or serious injury);

h) section 319AA(1) (dangerous or negligent driving while pursued by police).

  1. Any indictable offence in the course of committing which the accused, or any person involved in the commission of the offence, is alleged to have used or threatened to use a firearm, offensive weapon, or explosive as defined by section 77 of the Crimes Act 1958
  1. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 

a) section 71AB (trafficking in a drug or drugs of dependence to a child);

b) section 71AC (trafficking in a drug of dependence);

c) section 72B (cultivation of narcotic plants);

d) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a), (b) or (c).

  1. An offence against any of the following provisions of the  Drugs, Poisons and Controlled Substances Act 1981(as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 )—

a) section 71(1) (trafficking in a drug of dependence);

b) section 72(1) (cultivation of narcotic plants);

c) section 79(1) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a) or (b).

  1. An offence against section 302.2, 302.3, 303.4, 303.5, 304.1, 304.2, 305.3, 305.4, 306.2, 307.1, 307.2, 307.5, 307.6, 307.8, 307.9, 307.11, 309.3, 309.4, 309.7, 309.8, 309.10, 309.11, 309.12, 309.13, 309.14 or 309.15 of the Criminal Code of the Commonwealth.
  1. An offence under section 231(1), 233A or 233B(1) of the Customs Act 1901 of the Commonwealth (as in force immediately before the commencement of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 of the Commonwealth) in circumstances where the offence is committed in relation to a commercial or trafficable quantity of narcotic goods within the meaning of that Act.
  1. An indictable offence that is alleged to have been committed while the accused is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 .
  1. An indictable offence, and the accused, at any time during the proceeding with respect to bail, is the subject of a supervision order, or interim supervision order, within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 .
  1. An offence against this Act.
  1. An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.”.

This flow chart illustrates the key points a bail decision maker should consider when determining the application of a person charged with a schedule 1 offence:

The Victorian Court of Appeal in DPP v Hughes [2016] interpreted the phrase – “compelling reasons” to mean ‘powerful circumstances of a kind wholly outside what might be described as “run of the mill” factors’.