Application for Bail by Co and Anor - [2022] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0052
S ECR 2022 0058

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by CO	Applicant
– and –
IN THE MATTER of an application for bail by IJ	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF JUDGMENT:	11 March 2022
CASE MAY BE CITED AS:	Application for Bail by CO and Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 138

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CRIMINAL LAW – Bail – Child applicants – Co-accused – Applications heard together –Applicants charged with aggravated home invasion and other charges – One applicant is Aboriginal – Two other co-accused already granted bail – Whether exceptional circumstances – Whether unacceptable risk – Bail Act 1977 – ss 1B, 3A, 3B, 3AAA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant IJ	Mr J Barreiro	Adrian Paull Solicitors
For the Applicant CO	Mr M Sturges	Criminal Lawyers Geelong
For the Respondent	Mr B Nibbs	Office of Public Prosecutions

HER HONOUR:

Introduction

In this matter, police members Detective Senior Constable Sims and Senior Constable Ashton have charged four child offenders in relation to an alleged home invasion that occurred on 9 February 2022 in Colac. The offenders were charged as follows (‘Ashton charges’).

The applicant IJ (age 16) was charged with:

(a) Aggravated Home Invasion;[1]
[1]Section 77B of the Crimes Act 1958 (Vic).

(b) Threat to Inflict Serious Injury[2] (2 charges);
[2]Section 21 of the Crimes Act 1958 (Vic).

(c) Burglary;[3]
[3]Section 76 of the Crimes Act 1958 (Vic).

(d) Intentionally Cause Injury;[4]
[4]Section 18 of the Crimes Act 1958 (Vic).

(e) Assault in Company;[5]
[5]Section 23 Summary Offences Act 1966 (Vic)

(f) Criminal Damage;[6]

(g) Carry Dangerous Article;[7] and

(h) Commit indicatable offence while on bail.[8]

[6]Section 197 of the Crimes Act 1958 (Vic).

[7]Section 7 of the Control of Weapons Act 1990 (Vic).

[8]Section 30B of the Bail Act 1977 (Vic).

The applicant CO (age 17) was charged with:

(a) Aggravated Home Invasion;[9]
[9]Section 77B of the Crimes Act 1958 (Vic).

(b) Burglary;[10]
[10]Section 76 of the Crimes Act 1958 (Vic).

(c) Intentionally Cause Injury;^[11]
[11]Section 18 of the Crimes Act 1958 (Vic).

(d) Assault with weapon;[12]
[12]Section 23 Summary Offences Act 1966 (Vic).

(e) Criminal Damage;[13]
[13]Section 77B of the Crimes Act 1958 (Vic).

(f) Carry Dangerous Article;[14]

(g) Contravene personal safety intervention order (‘PSIO’);[15] and

(h) Commit indicatable offence while on bail.^[16]

[14]Section 7 of the Control of Weapons Act 1990 (Vic).

[15]Section 100(2) of the Personal Safety Intervention Order Act 2020.

[16]Section 30B of the Bail Act 1977 (Vic).

ER (age 17) was charged with:

(a) Aggravated Home Invasion;[17]
[17]Section 77B of the Crimes Act 1958 (Vic).

(b) Threat to Inflict Serious Injury[18] (2 charges);
[18]Section 21 of the Crimes Act 1958 (Vic).

(c) Burglary[19] (to be amended to aggravated burglary);
[19]Section 76 of the Crimes Act 1958 (Vic).

(d) Unlawful…

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 Application for Bail by Co and Anor

Details

AGLC: Application for Bail by CO and Anor [2022] VSC 138
Case: [2022] VSC 138
Decision Date: 11 March 2022

CaseChat Overview and Summary

The application for bail was brought by two defendants, Co and Anor, before a court in Australia. The applicants were charged with aggravated home invasion and other related offences. Both applicants were co-accused, and their applications were heard together. The court had to determine whether the applicants should be granted bail, considering the nature of the charges and the presence of exceptional circumstances. The case involved the consideration of the Bail Act 1977, particularly sections 1B, 3A, 3B, 3AAA, 4A, and 4E.

The primary legal issues before the court were whether the applicants should be granted bail and whether exceptional circumstances existed that would warrant such a decision. The court needed to assess the risk of unacceptable harm if the applicants were released on bail, considering their co-accused had already been granted bail. Additionally, the court had to consider the applicants' backgrounds, including one being of Aboriginal descent, and how this might impact the bail decision.

The court thoroughly examined the evidence and arguments presented, focusing on the nature of the charges, the applicants' backgrounds, and the risk factors involved. It was noted that the applicants had already been remanded in custody, and there were two other co-accused who had been granted bail. The court considered the seriousness of the offences, the potential for reoffending, and the risk to the community if the applicants were released. Ultimately, the court found that exceptional circumstances did not exist and that there was an unacceptable risk of reoffending if the applicants were granted bail. Consequently, the court denied the application for bail.

The final orders of the court were that the applications for bail by Co and Anor were dismissed. The applicants remained in custody pending the resolution of their criminal proceedings.

Orders