MG (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0129

MG (A PSEUDONYM)	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2025
DATE OF JUDGMENT:	8 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 167
JUDGMENT APPEALED FROM:	ReMG [2025] VSC 384 (Tinney J)

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CRIMINAL LAW – Appeal – Bail – Appeal against refusal of bail – Appellant charged with aggravated burglary (two charges), theft, theft of motor vehicle and possession of methylamphetamine – Offences committed while appellant on seven grants of bail and subject to seven separate sets of charges – Appellant 17 year old First Nations person of Yorta Yorta, Kurnai, Gunditjmara and Monero peoples – Appellant of extremely low intellect – History of physical and sexual abuse – Judge found exceptional circumstances existed which justified grant of bail – Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence or otherwise endanger the safety of any person if granted bail – No error established – Appeal dismissed.

Bail Act 1977, ss 1B, 3A, 3AAA, 3B, 4AA, 4A, 4D, 4E, considered – Disability Act 2006, referred to.

House v The King (1936) 55 CLR 499; HA (a pseudonym) v The Queen [2021] VSCA 64, referred to.

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Counsel
Appellant:		Mr DA Dann KC, with Ms C Marcs and Ms F Fox
Respondent:		Mr DD Gurvich KC, with Mr L Carter
Solicitors
Appellant:	Kurnai Legal Practice
Respondent:	Victoria Police

PRIEST JA
BOYCE JA
KAYE JA:

The appellant was arrested on 4 June 2025 on two charges of aggravated burglary, and one charge each of theft, theft from a motor vehicle, and possession of methylamphetamine. The offences were alleged to have been committed by the appellant on 4 June 2025. On the following day, 5 June 2025, an application for bail on his behalf was made to the Latrobe Valley Children’s Court. On 12 June 2025, the magistrate who heard the application refused to grant bail, on the ground that if the appellant were released on bail, he would be an unacceptable risk of endangering the safety and welfare of another person and of failing to surrender into custody, in accordance with the conditions of bail.
On 13 June 2025, the appellant applied to a judge of the Trial Division of the Court for bail. As the appellant was charged with committing Schedule 2 offences (aggravated burglary) while on bail for such an offence, the judge was required to refuse bail, unless the appellant demonstrated that exceptional circumstances existed that justified the grant of bail.[1] It was common ground, and the judge accepted, that such circumstances existed. However, his Honour was satisfied that, if the appellant were released on bail, there would be an unacceptable risk that he would commit a Schedule 1 or Schedule 2 offence while on bail, or otherwise endanger the safety or welfare of another person.[2] Accordingly, the application for bail was refused.
[1]Bail Act 1997, s 4AA(2) (‘the Act’).
[2]Ibid s 4 E (1) (e).
The appellant is currently remanded in custody at the Parkville Youth Justice Precinct.
The appellant seeks leave to appeal that decision on the following grounds:
Ground 1: The bail decision-maker’s conclusion that the appellant was an unacceptable risk (and thus to refuse the appellant bail pursuant to the test provided for at section 4E of the Bail Act 1977 (Vic)) was unreasonable.
Ground 2: The bail decision-maker erred in proceeding on the basis he could be confident that the Appellant’s charges would be disposed of in the remaining months of this year.
Ground 3: The bail decision-maker erred in proceeding on the basis that the Disability Justice Plan offered nothing additional to what had previously been provided by Youth Justice.

The alleged offending

It is alleged that, at approximately 12:55 am on Wednesday 4 June 2025, the appellant, in company with three unidentified offenders, was captured on CCTV attending premises in Hare Street, Morwell. The appellant and one of the unidentified offenders entered the building through an unlocked front door. When the occupants of the house were alerted to their presence, the appellant ran out of the house, taking with him the occupier’s backpack, which was on the couch in the living room. The backpack contained a black Samsonite laptop X13 model, house keys, grey headphones and a work Notebook. The laptop was valued at $1,500.
About 20 minutes later, at 1:15 am on Wednesday 4 June 2025, the appellant, in company with three other persons, attended a home address in Sherrin Street, Morwell. They gained entry to the residence by smashing a window at the front of the house, which caused the occupants of the house to awaken. One of them observed the appellant and three other unidentified co-offenders enter her vehicle, a blue 2007 Volkswagen Jetta sedan, which they drove away. The keys to the vehicle, which had been left on a coffee table close to the smashed window, had been taken by them. The vehicle was valued at approximately $4,600.
On the same day, at 5:15 am, police attended the appellant’s bail address to conduct a curfew check. The appellant was not present at home. PS,[3] the appellant’s grandfather, stated that the appellant was at another address.
[3]A pseudonym.
The stolen vehicle was located by police on 5 June 2025. Two DNA swabs were taken from a drink container located inside the vehicle.

Matters in respect of which appellant is currently on bail

As mentioned, the appellant is currently on bail in respect of seven separate sets of charges.

(1) Informant — Senior Constable Wishnowsky

On 22 August 2023, the appellant was arrested and charged with 20 offences, which included aggravated burglary, theft, theft of a motor vehicle, assault with a weapon, and committing an indictable offence while on bail (2 charges). The offending is alleged to have occurred on the same day, 22 August 2023. The matter has partly resolved. The appellant will plead guilty to four of the charges, and the prosecution will withdraw seven charges. The remaining nine charges are proceeding to contest. The appellant was released on bail by the Latrobe Valley Children’s Court on 24 August 2023, with conditions that included a curfew, not to drive a motor vehicle, to reside at premises in Spring Court, Morwell, being the premises of his grandfather, PS, and to obey the directions of Youth Justice.

(2) Informant — Detective Senior Constable Woodbridge

On 18 January 2024, the appellant was arrested and charged with ten offences, namely, reckless conduct endangering life, reckless conduct endangering serious injury, being a prohibited person using a firearm, being a prohibited person possessing a firearm, criminal damage, possessing ammunition without a licence, possessing a prohibited weapon without exemption/approval, handling/receiving stolen goods, theft, and theft of motor vehicle.
The offending is alleged to have occurred in Morwell on 16 January 2024 and 18 January 2024. It is alleged that, in the course of the theft of the motor vehicle, the appellant leant across a passenger, who was seated behind the driver, and discharged a single shotgun round into the rear of the vehicle. Subsequently, when the appellant was arrested on 18 January 2024, upon being searched, he was found in possession of (inter alia) a plastic bag containing shotgun cartridges and a taser.
The appellant was released on bail by the Latrobe Valley Children’s Court on 19 January 2024. The matter is currently listed at the Latrobe Valley Children’s Court on 15 August 2025.

(3) Informant — Senior Constable Aoun

On 10 January 2025, the appellant was arrested and charged with affray, recklessly causing serious injury, intentionally causing injury, common assault (two charges), and contravening conduct conditions of bail. The offending is alleged to have occurred on 9 January 2025.
It is alleged that the appellant and three co-offenders forced their way into the front yard of premises occupied by AW, the partner of one of the co-offenders with whom the appellant committed the offences. Having done so, it is alleged that the appellant punched AW’s 11-year-old nephew to the head, before also punching AW’s sister, CW, to the head. The appellant and his co-offenders then punched JN, the partner of CW, to the ground, where he was kicked and stomped a number of times. The appellant and one of his co-offenders were observed to be armed with knives. As a consequence of the assault, JN sustained a broken jaw, missing teeth, and puncture wounds, which were consistent with being caused by a screwdriver.
On his arrest, the appellant made an unsuccessful application for bail in the weekend online remand court. The application was refused because the magistrate concluded that if the appellant were released there would be an unacceptable risk that he would endanger the safety and welfare of another person. Subsequently, on 16 January 2025, the appellant was granted bail on condition that he reside at the premises of his grandfather, that he not carry a weapon, that he abide by a curfew (between 9:00 pm and 6:00 am), and that he obey directions of the Youth Justice Bail Supervised Service.
The matter is next listed at the Latrobe Valley Children’s Court on 15 August 2025.

(4) Informant — Detective Senior Constable Park

On 22 February 2025, the appellant was arrested and charged with one charge each of aggravated burglary, theft, and attempted theft from a motor vehicle. The offences are alleged to have been committed on 19 February 2025. On his arrest, the appellant was bailed by police on conditions that he abide by a curfew, and reside at the premises of his grandfather. The matter is currently listed at the Latrobe Valley Children’s Court on 15 August next.

(5) Informant — Detective Senior Constable McWhirter

On 27 March 2025, the appellant was arrested and charged with one charge of burglary and one charge of theft, those offences being alleged to have been committed by the appellant on 5 March 2025. Following his arrest, the appellant was bailed by police. The matter has been transferred to the Latrobe Valley Children’s Court, and is currently also listed at that Court on 15 August next.

(6) Informant — Detective Senior Constable Wakker

On 31 March 2025, the appellant was arrested and charged with aggravated burglary, theft of a motor vehicle (two charges), possession of ammunition, unlicensed driving, and committing an indictable offence while on bail (two charges). The offending is alleged to have occurred between 10.00pm 28 March to 6.30 am 29 March 2025.
On 1 April 2025, the appellant unsuccessfully applied for bail to the Latrobe Valley Children’s Court. The application was refused, because the Magistrate concluded that if he were released on bail, there would be an unacceptable risk that he would endanger the safety and welfare of another person.
The appellant made a further unsuccessful application for bail to the Latrobe Valley Children’s Court on 4 April 2025. As a consequence, he remained in custody from the date of his arrest on 31 March 2025 until 30 April 2025, when he was granted bail, by the Latrobe Valley Children’s Court, on conditions that included: that he reside at the premises of his grandfather; that he adhere to a curfew from 9:00 pm to 6:00 am; that he not drive a motor vehicle; that he comply with the Youth Justice Intensive Bail Service program; and that he be subject to judicial monitoring on 8 May 2025.

(7) Informant — Detective Senior Constable Milner

On the morning of 30 May 2025, the appellant and two co-accused were arrested by police, and charged with offences that included theft of a motor vehicle, possession of a prohibited weapon and carrying an imitation firearm. The offending was alleged to have occurred two hours earlier. It is alleged that the appellant and his co-offenders broke into, and stole, a 2022 Toyota Hilux utility, that was parked outside premises in Spry Street, Morwell. When the appellant and his co-accused were arrested by police, a search of the stolen vehicle located a large hunting knife/machete in the possession of one of the co-accused.
On 30 May 2025, the appellant was bailed to appear at Latrobe Valley Children’s Court on 4 July 2025, on conditions that included that he reside at the premises of his grandfather in Spring Court, Morwell, that he abide by a curfew, and that he not drive a motor vehicle.

Matters in respect of which the appellant is on summons

At the time of his arrest, the appellant was also on summons in respect of seven separate sets of charges. Each of those matters are next listed on 15 October 2025 at the Latrobe Valley Children’s Court for deferral of sentence:
(1)Theft (2 charges), attempt to commit indictable offence, and carrying imitation firearm without exemption/approval. The offences are alleged to have been committed on 21 March 2024.
(2)Dishonestly assist in retention of stolen goods. The offence is alleged to have been committed on 28 March 2024. The appellant was charged on the same day.
(3)Theft of motor vehicle (2 charges), alleged to have been committed on 19 August and 5 September 2024 respectively. The appellant was charged on 6 May 2024.
(4)Theft of motor vehicle, allegedly committed on 15 September 2024. The appellant was charged on the same day.
(5)Possess methylamphetamine and deal with property suspected of being proceeds of crime. The offending is alleged to have been committed on 4 March 2025 and 4 June 2025. The appellant was originally charged (with the first charge) on 4 March 2025.
(6)Carrying a prohibited weapon without exemption/approval. The offending is alleged to have been committed on 5 May 2025.
(7)Possession of a prohibited weapon without exemption/approval, and possession of cannabis. The offending is alleged to have been committed on 28 February 2025.

The appellant’s bail history

The appellant has had a chequered history while on bail during the last six months.
In January 2025, Youth Justice assessed the appellant as suitable for the Youth Justice Bail Service supervised bail program. Accordingly, on 16 January 2025, he was released from custody and placed on a supervised bail order in relation to the matters in which Senior Constable Jarred Aoun is the informant.
On 1 April 2025, the appellant was remanded in custody in respect of the further alleged offending in which Detective Senior Constable Wakker is the informant. Youth Justice, which was requested to complete a bail assessment, assessed that the appellant was not suitable for Youth Justice Bail Service, based on his presenting risks, which primarily comprised his reported significant polysubstance use, and his continued alleged offending while he was subject to the supervised bail order issued on 16 January 2025. As a consequence, bail was refused, and the appellant remanded in custody.
On 16 April 2025, a pre-sentence report was ordered from Youth Justice in respect of six of the then outstanding matters against the appellant, in which the offending dates ranged between March 2024 and March 2025. On 30 April 2025, the appellant was released on Intensive Bail, after he was found suitable by Youth Justice. His compliance during the initial period of Intensive Bail was poor, and, on the Judicial Monitoring appearance before the Court on 8 May 2025, Youth Justice submitted an Intensive Bail Progress Report that assessed that the appellant was no longer suitable for the program, due to his poor compliance. The appellant failed to attend Court on that date, and the matters were adjourned to 22 May 2025.
On 9 May 2025, the appellant was remanded for further alleged offending. He remained in custody until 28 May 2025, when he was released on bail, subject to a Deferral of Sentencing for the purpose of the Group Conference (returning on 15 October) in respect of the summary charges.
On 4 June 2025, the appellant was remanded in custody on the current charges by a bail justice to 5 June 2025. On that date, he was further remanded in custody to 12 June 2025 for a further bail assessment to be completed by Youth Justice. The Youth Justice Bail Service report of that date assessed that the appellant presented high risks of repeat and high harm offending, which are currently unable to be mitigated through the Bail Service Program. Accordingly, Youth Justice assessed that the appellant was not suitable for the Youth Justice Bail Service at that time.

Appellant’s previous convictions

On 27 February 2024, the appellant was before the Latrobe Valley Children’s Court on a number of charges, that included: recklessly causing injury; assault and hinder police officer; robbery; committing an indictable offence while on bail (12 charges); burglary (3 charges); attempted theft from a motor vehicle (3 charges); theft of a motor vehicle (3 charges); unlawful assault; assault an emergency worker on duty; and possession of methylamphetamine. Without conviction, the charges were adjourned to 27 February 2025 at the Latrobe Valley Children’s Court, with the appellant being released upon entering into a good behaviour bond, with conditions that included that he work with the Koori Education Children’s Court Liaison Officer.
Subsequently, on 28 May 2025, the appellant was before the Latrobe Valley Children’s Court on charges of using an unregistered motor vehicle, unlicensed driving, failing to wear a motorbike helmet, and using a vehicle that was not in a safe or roadworthy condition. Without conviction, the charges were dismissed upon the appellant entering into an undertaking for 12 months.

Appellant’s background and history

The appellant was born on 11 January 2008 and is 17 years of age. He is a First Nations person of the Yorta Yorta, Kurnai, Gunditjmara and Monero peoples.
The appellant’s parents had five children, and he also has a half-brother to his mother, and a half-brother to his father. The appellant suffered physical abuse and sexual abuse from a very early age, and he grew up in an environment of domestic violence, substance abuse, and criminal activities engaged in by his parents. At an early age, he was removed from his parents’ care and placed, with his siblings, in the care of his grandfather, PS. He has principally been living with his grandfather since that time.
The appellant has engaged in illicit substance abuse from a very young age. He commenced using cannabis at the age of 10 years, and ‘chromed’ from the age of 11 years for a period of some two years. He commenced using crystal methamphetamine when he was 14 years of age, as well as engaging in regular consumption of alcohol.
The appellant attended Morwell Primary School from Preparatory Grade to Grade 3, but he left before returning to Grade 4 at Bairnsdale Primary School, where he went to live with his mother for a period. He was only at that school for a few weeks before he moved back to Morwell to live with his grandfather. He then did not attend school for several years, until he subsequently attended Berry Street School, which is a school for students who have difficulty in mainstream schooling. He commenced that program in Year 8, but again he did not remain in it for long.

Psychological reports

The appellant has an established background of having an intellectual disability as defined by the Disability Act 2006.
In a report conducted by clinical psychologist, Ms Carla Lechner, dated 19 December 2019, it was assessed that the appellant was found to be doli incapax, which resulted in criminal charges against him being withdrawn.
Subsequently, the appellant was assessed by a clinical neuropsychologist, Dr Frank Muscara, in November 2023. Dr Muscara found that the appellant’s full-scale IQ was 57, which met the definition of a significant sub-average intellectual functioning. Dr Muscara also identified that the appellant had poor social reasoning skills, which impacted his ability to adequately problem solve, and thus had a direct impact on his criminal trajectory.

More recently, in February 2025, the appellant was examined by Mr Martin Jackson, a consultant clinical neuropsychologist. Mr Jackson assessed the appellant as having sub-average general intellectual functioning, with a full-scale IQ of 69, which is in the extremely low range. In particular, his basic processing speed was extremely low; his verbal intellectual abilities and perceptual intellectual abilities, sequencing span, and executive functions, including planning, organisation, verbal abstract reasoning and visual logical thinking, were all in the borderline range. His immediate memory span and working memory span were in the low average range.
Mr Jackson noted that the appellant has been diagnosed as suffering Complex Post-Traumatic Stress Disorder and Emotional Dysregulation. All of his areas of adaptive living skills were assessed to be in the extremely low range. Mr Jackson noted that the appellant requires a referral to the NDIS to assist him to obtain supports and services in terms of his adaptive living skills, his ability to live and function in the community, to address his drug and alcohol issues, and to assist the appellant to find something useful for him to do with his time.

Youth Justice reports

In January 2025, when the appellant was held on remand in relation to the Aoun charges, he was assessed as suitable for a Youth Justice Supervised Bail Program. A progress report of Ms Jo Fuhrmann, from Youth Justice, dated 11 April 2025 was provided to the Court. It was noted that the appellant’s attendance and engagement with Youth Justice and other services had been inconsistent, and Youth Justice had significant concerns about his substance abuse and associated risk.
Ms Fuhrmann provided a further report dated 8 May 2025, which was prepared in anticipation of the Judicial Monitoring appearance of the appellant that was scheduled for that date. Ms Fuhrmann noted that the appellant’s participation in previous and more recent orders had varied between short periods of compliance, and periods of non-compliance. He had failed to attend numerous appointments, including appointments with Youth Justice, Youth Justice Community Support Services, the Aboriginal Youth Justice Program and the Youth Justice Advocacy Services. On 7 May 2025, Youth Justice was informed by the appellant’s grandfather that he was not aware of the appellant’s whereabouts. Ms Fuhrmann assessed that the appellant was no longer suitable for the Youth Justice Bail Service, Intensive Bail Program.
The most recent Youth Justice Bail Service Report, prepared by Ms Lilli Bates-Fennessy, was dated 12 June 2025. Ms Bates-Fennessy noted that the periods of support and intervention available to the appellant on previous occasions, when he has been released on bail, had not been effective in reducing his overall offending. The report noted that the appellant’s alleged offending presents ‘high harm consequence’ to himself and the community, involving the possession of weapons, motor vehicle-related offending, and possession of substances. Throughout the period in which the appellant has been released on bail, his engagement with services had been poor. He has demonstrated difficulties abiding by bail conditions.
The report further noted that, during the supervision appointments while he was in custody throughout 2025, the appellant had presented as receptive to, and he had engaged well with, Youth Justice. During those times, the appellant had engaged with Youth Justice to complete his residential rehabilitation referral and planning for potential release.
While in custody, the appellant had access to support through the Aboriginal Youth Justice Program (AYJP). The appellant was referred to the 16 Yards Program, which is a lived experience, mentoring intensive one-on-one support. The appellant has been matched for that purpose with Kalijah Lovett. It was reported that the appellant had engaged positively with that program. It is also noted that the appellant provided consent to be referred to the Gippsland Youth Residential Rehabilitation Program (GYRRP) in Traralgon, but that application has not been progressed, as further paperwork (including a comprehensive AOD assessment) is required. In her report, Ms Bates-Fennessy has attached an Intensive Bail Plan for the appellant, should he be released on bail. The plan seeks to address identified areas of risk and need for the appellant, which include behavioural management, education, recreational activities to occupy the appellant’s idle time, cultural support, substance abuse, mental health and functioning. It also includes the appellant continuing to attend the 16 Yards Lived Experience Mentoring Program.
Ms Bates-Fennessy gave evidence on the hearing of the present application before the primary judge. Ms Bates-Fennessy noted that the appellant had not previously had access to Disability Services. She considered that the fact that that service might now be available, would represent a significant shift in his circumstances. Ms Bates-Fennessy also noted that Ms Annie Hamilton, of the Aboriginal Youth Justice Service, had been allocated to the appellant’s case on 16 January, and that Ms Hamilton had reported a positive relationship with both the appellant and his family. Ms Bates-Fennessy stated that, in his dealings with those allocated to support him, the appellant had always been polite. His level of engagement had varied, particularly due to him being substance-affected at the times of some of those appointments. She noted that although the appellant identified issues concerning his peers and substance abuse that have impacted him, he struggled to disassociate himself from those influences.
In cross-examination, Ms Bates-Fennessy stated that the appellant’s attendance and engagement had improved since he had been in custody. In respect of the supports that were then in place for the appellant, that level of support was the same as that which had been previously available to him.
On the hearing of the application, Ms Lynda Mayze, a Disability Justice Co-ordinator with the Department of Families, Fairness and Housing, gave evidence. Ms Mayze had prepared a report entitled ‘Plan of Services’ dated 23 May 2025 that was tendered in evidence. The Plan set out the background and past history of the appellant, and Mr Jackson’s diagnosis. Under the heading, ‘Plan of Services’, she described that the role of the Department was to provide a coordination of forensic disability supports and treatment for offenders with an intellectual disability. In particular, Disability Justice Co-ordinators work with Corrections Victoria mainstream supports to encourage treatment and support, which is targeted to those with an intellectual disability, and catered for their disability requirements. Disability Justice coordination applies evidence-based approaches to support and treatment.
In the conclusion to her report, Ms Mayze noted that the appellant was currently accessing many services to address his criminogenic needs. The role of Disability Justice Co-ordination in his case would be to support the appellant to continue to access those services, and to assist to identify other services necessary to meet his needs.
In her evidence, Ms Mayze described her role as being a kind of ‘translator’ between Youth Justice on the one hand, and the appellant’s level of comprehension. She also noted that the appellant had not had any previous involvement with Disability Services. She stated that, due to the appellant’s intellectual disability and his low cognitive functioning, he requires a lot more time to have matters explained to him. In particular, he may need more assistance to attend appointments, such as being prompted by a telephone call at an appropriate time before any appointments. Ms Mayze also noted that the Disability Justice Plan would be different to the Youth Justice Supervised Bail Plan that was already in place, in that it would be more specific to the appellant’s disabilities. In response to questions by the judge, Ms Mayze said that the highest that that aspect could be put would be that, if the appellant were placed on a Plan of Services, he could be guided and encouraged to engage in supports, but he could not be compelled to do so.

The judge’s reasons

The judge provided detailed and comprehensive reasons for determining that the appellant’s application for bail should be refused.[4]
[4]Re MG [2025] VSC 384 (‘Reasons’).
The judge commenced by accepting that he was satisfied that the appellant had discharged the onus of proving the existence of exceptional circumstances.[5]
[5]Ibid [85].
His Honour considered that the offending, alleged against the appellant, is serious. In particular, the theft of a motor vehicle involved a danger to the community, which arises from young, unqualified people driving stolen motor vehicles late at night. His Honour also noted that aggravated burglary is an inherently serious offence.[6] The judge accepted that the prosecution case against the appellant was at least of reasonable strength.[7] His Honour noted that the appellant’s criminal history, while not lengthy, was nevertheless significant.[8]
[6]Ibid [87].
[7]Ibid [88].
[8]Ibid [89].
In considering s 3AAA(1)(d) and (e) of the Bail Act 1977 (‘the Act’), the judge noted that the appellant was on seven separate grants of bail at the time at which he committed the offending in question. His Honour noted that the appellant’s history was such that he has shown scant regard for the conditions of bail, and that he had shown a complete lack of respect for the institution of bail, having ‘… effectively gone on a crime spree encompassing a vast array of serious crimes, interrupted only by the periods of remand to which he has been subject, and in no way curtailed by conditions of bail’.[9] The judge also noted that, with the exception of a possible change comprising Ms Mayze’s evidence, that no change in the living circumstances have been proposed in respect of the appellant than those which were in operation at the time of each of the previous instances of offending.
[9]Ibid [90].
The judge noted, from the evidence of Ms Bates-Fennessy, that it was clear that Youth Justice, with its experience and expertise in trying to assist troubled children and young persons, had devoted a great deal of time, effort and care to the appellant, but that, unfortunately, the appellant had been ‘almost entirely’ unwilling to accept the supports and supervision on offer.[10]
[10]Ibid [93]–[94].
The judge accepted that the appellant’s actions, following his previous grants of bail, must be considered through the prism of issues which arose from his history, including his experiences of trauma, inter-generational trauma and abuse, social and economic disadvantage, his intellectual disability and other relevant cultural issues or obligations.[11]
[11]Ibid [95].
The judge rejected the submission, made on behalf of the appellant, that the Plan of Services provided by Ms Mayze, and the intervention of Disability Services, would be a ‘game-changer’. His Honour considered that that contention significantly underestimated the experience and expertise of Youth Justice in dealing with troubled children and young people with varying cognitive levels and backgrounds. In essence, the judge accepted the prosecution contention that the proposals, that were put forward on behalf of the appellant, were no different than what had previously been available to him.[12]
[12]Ibid [97].
The judge did not accept that the likely period on remand would be as long as that asserted on behalf of the appellant — that is, nine months to twelve months. His Honour considered that if the charges were contested, they would be resolved in the Children’s Court within the remaining months of the current year. His Honour accepted that it was unlikely that the appellant would receive a period of detention, particularly in view of the time that he had already been in custody. He also accepted the prosecution contention that a period of detention would be within the appropriate range of sentences, in view of the seriousness of the offending, the age of the appellant, and his criminal history.[13]
[13]Ibid [99].
The judge then considered the special vulnerabilities of the appellant as an Aboriginal child with an intellectual disability. He noted that the appellant is now 17 and a half years of age, his application was not supported by Youth Justice, he has had a poor history of compliance with supervision, and it was proposed that he would return to live with his grandfather in the same conditions of limited supervision and poverty, in which he had been living at the time of the offending.[14]
[14]Ibid [107].
In conclusion, the judge accepted that the matters put in favour of the appellant, including his age, his Aboriginal identity, and his disability, were weighty factors. However, he concluded that, if the appellant were released on bail, there would be little prospect that he would abide by any conditions of bail which could be imposed. His Honour concluded:
In my view, he would be highly likely to reoffend, and were he to do so, there would be a very real, and by no means, unrealistic, risk that members of the community may be endangered by his offending.[15]
[15]Ibid [112].

The grounds of appeal

Before considering ground 1, it is first convenient to consider grounds 2 and 3, each of which contend that the judge made specific errors in his reasons.

Ground 2

In his affidavit in support of the application for bail, the appellant’s solicitor contended that, if the appellant were not granted bail, it was likely that he would spend approximately nine to 12 months in custody awaiting a contested hearing date for his matter. In his reasons, the judge did not accept that proposition, and was ‘confident’ that if the charges remained contested, they would be resolved in the Children’s Court as expeditiously as possible in the remaining months of the current year.[16]
[16]Ibid [98].
The proposition by the appellant, that there would be a delay of nine to 12 months in the hearing and determination of the charges against him, was put in issue by the respondent. In his affidavit in response to the application for bail, the respondent’s solicitor referred to, and exhibited, an email from the Registrar of the Latrobe Valley Children’s Court dated 18 June 2025, in which the Registrar stated that the earliest dates for a one day contest at Latrobe Valley were currently mid-October to November.
Senior counsel for the appellant submitted that the judge erred in accepting, on the basis of that email, that the charges, in respect of which the appellant seeks bail, would be resolved in the Children’s Court by at least December 2025. Counsel noted that in respect of a number of the matters on which the appellant is on bail, there has been a significant delay between the appellant’s arrest and the expected disposition of the charges. For example, a period of 23 months have already passed since the appellant was arrested on the matters in respect of which Senior Constable Wishnowsky was advised the informant. The appellant was arrested on the matters in respect of which Detective Senior Constable Woodbridge, and Senior Constable Aoun, were respectively the informants, in January 2025, and those matters are next listed at the Latrobe Valley Children’s Court on 15 August 2025. Counsel also noted that there were outstanding matters in relation to the DNA evidence which have not been attended to, and which would involve a potentially substantial period of delay in the present case.
In considering those submissions, it must be noted, as counsel for the respondent correctly pointed out, that the appellant is on bail in respect of each of the other sets of charges against him, including those in which Messrs Wishnowsky, Woodbridge and Aoun are the informants. Accordingly, those matters have not been accorded a priority listing in the Children’s Court. The email by the Registrar of the Latrobe Valley Children’s Court was provided in response to a specific request by the lawyer for the respondent, namely, that if the appellant ‘was to remain in custody’, what was the earliest time at which a court time could be allocated for a full single day contested hearing of the matter. It was on that basis that the Registrar responded that the earliest date for such a hearing was currently then mid-October to November. Thus, it is quite evident that the fact, that the appellant is on remand in respect of the present charges, differentiates the expected timing of the listing of those charges from the delayed listing of the charges in respect of which the appellant is on bail.
The issue of delay was the subject of discussion in the course of argument before the judge. Counsel for the appellant submitted that if the appellant were not granted bail, he would remain in custody until a contested hearing that was scheduled for December. In further discussion with the judge, counsel noted that there was some disagreement about the length of the potential delay, and noted that he had originally suggested that that delay would be nine to 12 months. Relevantly, counsel, referring to the correspondence from the Latrobe Valley Children’s Court Registrar which indicated that the hearing date would be as early as October, stated: ‘There’s a four month delay to contest’. Counsel did add that the examination of the DNA evidence was still outstanding, which added a further six weeks. Counsel did not suggest that that circumstance would significantly add to the delay in the hearing of the matter, or cause the expectation, that the delay would be in the order of four months, to be unrealistic.
In those circumstances, and, in particular, taking into account the email from the Registrar of the Latrobe Valley Children’s Court, it could not be concluded that the judge was in error in proceeding on the basis that he could be confident that the appellant’s charges would be disposed of in the remaining months of the current year.
For those reasons, ground 2 must fail.

Ground 3

Ground 3 is directed to the judge’s conclusion, in respect of the proposed involvement of Disability Services, namely, that ‘in terms of the supports and supervision on offer’, that plan was no different than that which had been previously available to the appellant while he was on bail.[17]
[17]Ibid [96]–[97].
Counsel for the appellant submitted that that conclusion by the judge was erroneous for three reasons. First, on the hearing of the bail application, counsel for the respondent did not submit that the Disability Services plan made no difference to the Youth Justice plans on the basis of which the appellant had previously been granted bail. Rather, the respondent had submitted that there was not such a significant difference between the Disability Services plan, and the previous Youth Justice plans, that it reduced the risk, to an acceptable level, of the appellant reoffending in a manner which might endanger the safety and welfare of the community.
Secondly, counsel noted that on 28 May, the Koori Children’s Court, in disposing of the summary charges, made a disposition which could allow for the attachment and operation of the Disability Services plan.
Thirdly, counsel submitted that the unchallenged evidence of Ms Mayze was to the effect that the Disability Services plan would be specifically directed to the appellant’s intellectual and psychological disabilities, which would relevantly differentiate it from the Youth Justice plans.
In oral submissions before the judge, counsel for the appellant placed some emphasis on the plan. She contended that, although Youth Justice had the best of intentions, they did not apply their supports through a ‘disability lens’. She submitted that the Disability Service Plan would thus add an important dimension to the support for the appellant, by addressing the underlying causes of his previous poor compliance with the services that were provided to him by Youth Justice. In particular, counsel emphasised that Youth Justice did not have the requisite expertise for persons who have disabilities.

In response, counsel for the respondent submitted to the judge that there was not such a significant difference provided by Disability Services that it would reduce the risk, of the appellant endangering members of the public, to an acceptable level.
As we have already set out, the essence of the Disability Services plan was that the role of Disability Justice Co-ordination, in the case of the appellant, would be to support him to continue to access the services that were in place, and to assist to identify other services that were required to meet his needs.
Ms Mayze described the principal role, that would be performed by Disability Justice, as providing assistance to the appellant to attend his appointments. Relevantly, in answer to questions by the judge, Ms Mayze accepted that, while Disability Justice could guide and encourage the appellant to engage with the supports that were on offer, it did not have power to compel the appellant to do so.
In his reasons relating to this aspect of the case, the judge considered that the submissions, made on behalf of the appellant, significantly underestimated the expertise of Youth Justice in dealing with troubled children and with young people who have varying cognitive levels and difficult backgrounds. That proposition, by the judge, was not put in issue in this case, and understandably so. It was in the context of that consideration that the judge then assessed whether, as asserted by the appellant, the involvement of Disability Justice would be a ‘game changer’ in the supervision and support of the appellant.[18] In that context, it is significant, first, that Ms Mayze did not proffer any additional program for the appellant. Further, in answer to the question from the judge, she frankly accepted that while Disability Justice had the power to guide and encourage the appellant to engage with supports, it could not compel him to do so.
[18]Ibid [96].
In those circumstances, and taking those matters into account, it could not be concluded that the judge erred in proceeding on the basis that the Disability Services Plan did not materially add, in terms of supports and supervision, to those which had already been provided by Youth Justice during the periods in which the appellant had been on bail.
For those reasons, ground 3 must fail.

Ground 1 — Appellant’s submissions

In support of the ground of appeal, it was submitted that the judge’s conclusion, that the appellant is an unacceptable risk, was unreasonable in light of a number of particular considerations.
First, counsel noted that the appellant has a special vulnerability as a consequence of his age, his Aboriginality, and his intellectual disability. As such, he is especially vulnerable in custody. His intellectual deficits limit his capacity to comply with expectations, and restrict his insight into what is in his best interests.
Secondly, the appellant’s background is of particular relevance. The appellant has been exposed to violence, abuse (physical, sexual and emotional), neglect, substance misuse and criminality from a very young age. Child Protection have been involved with this family from very early in his life. He has been abusing substances since the age of ten years, and he only has very limited formal education.
Thirdly, counsel noted that the support available to the appellant, particularly in terms of the Disability Justice Plan of Services of 23 May 2025, is of particular importance in assisting and directing the appellant to be able to contact and work with the various services that are available for him.
Fourthly, counsel noted that, as a result of the appellant’s special vulnerability, it is unlikely that he will be sentenced to a term of detention if he is found guilty of the offences with which he is charged.
Fifthly, counsel submitted that the period of time which the appellant could be held in custody on remand would substantially outweigh any sentence.
Taking those matters into account, it was submitted that the judge’s conclusion, that if the appellant were released on bail there would be an unacceptable risk of the appellant endangering the community by offending, was unreasonable.

Ground 1 — Respondent’s submissions

In response, counsel for the respondent noted that, in March 2025, s 1B of the Bail Act was amended, so that s 1B (1AA) now provides, as a guiding principle, recognition of the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.
In respect of the surrounding circumstances provided for in s 3AAA of the Act, the respondent made the following points. First, it was conceded that if the appellant is found guilty of the offences for which he seeks bail, it is unlikely he would be sentenced to a term of detention. It was also accepted that if the appellant should remain on remand, that period of remand is ‘highly likely’ to exceed any period of detention for which he may be ultimately sentenced. The respondent noted that the charges of aggravated burglary are inherently serious offences, and the appellant’s criminal record includes findings of guilt for offences of robbery and burglary involving violence and weapons. The respondent accepted that there are triable issues in respect of the charges on which the appellant seeks bail, but, it was submitted, the prosecution case on those charges is of reasonable strength. The respondent also noted that the appellant has a poor record of compliance with previous grants of bail. He was on seven separate grants of bail at the time of the alleged offending in respect of which he seeks bail. He was also on summons (or awaiting sentence) for other matters. The respondent accepted that the appellant has a special vulnerability as he is an Aboriginal child with a mild intellectual disability.
Counsel for the respondent accepted that there were significant considerations that tended against a finding that the appellant was an unacceptable risk. However, it was submitted, despite those considerations, the judge was also required to have regard to the following factors: the guiding principles set out in s 1B of the Bail Act; the fact that Youth Justice did not support a grant of supervised bail; the serious nature of the offences; the appellant’s criminal record and his poor compliance with previous grants of bail; and the fact that the appellant was on seven separate grants of bail at the time at which he allegedly committed the offences for which he now seeks bail.
In those circumstances, it was submitted that it was open to the judge to conclude, as his Honour did, that if the appellant were released on bail, he would be ‘highly likely to reoffend’, and if he were to do so, there would be a very real risk that members of the community might be endangered by his offending.[19]
[19]Ibid [112].
Accordingly, it was submitted, it was reasonably open to the judge to refuse the application for bail.

Legislative regime governing the grant or refusal of bail

Several provisions of the Bail Act bore on the primary judge’s decision whether to grant or refuse bail.
Section 4 of the Act provides clear that the appellant was entitled to be granted bail unless other provisions of the Act required the judge to refuse it.
In the present case, the appellant was charged with aggravated burglary[20] — a Schedule 2 offence[21] — when already on bail for aggravated burglary. As a result, s 4AA(2)(c)(i) of the Act was engaged. It provides that a person accused of a Schedule 2 offence, which is alleged to have been committed when on bail for another Schedule 2 offence, the ‘exceptional circumstances test’ provided for in s 4A of the Act applies to a decision whether to grant bail. As a result, the judge was required to refuse the appellant bail unless satisfied that exceptional circumstances existed that justified the grant of bail,[22] the burden of satisfying the judge of the existence of exceptional circumstances resting on the appellant.[23]
[20]Crimes Act 1958, s 77.
[21]The Act, sch 2, cl 22(b).
[22]See ibid s 4A(1A).
[23]See ibid s 4A(2).
In considering whether exceptional circumstances existed, the judge was required to take into account the ‘surrounding circumstances’. The judge was also required to take into account the considerations spelled out in ss 3A and 3B, which relate respectively to Aboriginal persons and children. If satisfied of the existence of exceptional circumstances justifying the grant of bail, the judge was then required to consider the ‘unacceptable risk test’ set out in s 4E.[24]
[24]See ibid ss 4A(4) and 4D.
Section 4E provides that the judge was required to refuse bail if satisfied that there was an unacceptable risk (s 4E(1)(b)) that, if granted bail, the appellant would commit a Schedule 1 or Schedule 2 offence (s 4E(1)(a)(iaa)); otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means (s 4E(1)(a)(i)); interfere with a witness or otherwise obstruct the course of justice in any matter (s 4E(1)(a)(iii)); or fail to surrender himself into custody in accordance with the conditions of bail (s 4E(1)(a)(iv)). The burden of proving the existence of an unacceptable risk (or risks) lay upon the ‘prosecutor’.[25] In considering whether there was an unacceptable risk the judge was required to take the surrounding circumstances into account,[26] and also to consider whether there were any conditions of bail that might be imposed ‘to mitigate the risk so that it is not an unacceptable risk’.[27]
[25]See ibid s 4E(2).
[26]See ibid s 4E(3)(a).
[27]See ibid s 4E(3)(b).
Section 3AAA of the Act deals with ‘surrounding circumstances’. So far as relevant, it provides that the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i)that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)… ;
(f)… ;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused … ;
(i)the availability of treatment or bail support services;
(j)… ;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
...
Section 3A(1) provides in respect of Aboriginal persons:
3A Determination in relation to an Aboriginal person
(1) In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including the following—
(a)the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;
(b)the risk of harm and trauma that being in custody poses to Aboriginal people;
(c)the importance of maintaining and supporting the development of the person’s connection to culture, kinship, family, Elders, country and community;
(d)any issues that arise in relation to the person’s history, culture or circumstances, including the following—
(i)the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;
(ii) any experience of out of home care, including foster care and residential care;
(iii)any experience of social or economic disadvantage, including homelessness and unstable housing;
(iv)any ill health the person experiences, including mental illness;
(v)any disability the person has, including physical disability, intellectual disability and cognitive impairment;
(vi)any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;
(e)any other relevant cultural issue or obligation.
Section 3B(1) provides in respect of children:
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act) the following issues—
(a) the child’s age, maturity and stage of development at the time of the alleged offence;
(b)the need to impose on the child the minimum intervention required in the circumstances;
(c)the presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence;
(d)the need to preserve and strengthen the child’s relationships with—
(i)the child’s parents, guardian and carers; and
(ii) other significant persons in the child’s life;
(e)the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f)the importance—
(i)of supporting the child to engage in education, or in training or work; and
(ii)of that engagement being subject only to minimal interruption or disturbance;
(g)the need to minimise the stigma to the child resulting from being remanded;
(h)the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
(i)a risk that the child will become further involved in the criminal justice system; and
(ii)a risk of harm;
(i)the need to ensure that the conditions of bail—
(i)are no more onerous than is necessary; and
(ii)do not constitute unfair management of the child;
(j)the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort’s overrepresentation in the criminal justice system—
(i)Aboriginal children;
(ii)children involved in the child protection system;
(iii)children from culturally and linguistically diverse backgrounds;
(k)whether, if the child were found guilty of the offence charged, it is likely—
(i)that the child would be sentenced to a term of imprisonment; and
(ii)if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(l)any of the following issues that arise—
(i)any ill health the child experiences, including mental illness;
(ii)any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
(iii)the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;
(m)any other relevant factor or characteristic.
Additionally, when interpreting the Act, the judge was required by s 1B(1AA) to take into account (among other things) that the Parliament recognises the ‘overarching importance’ of maximising the safety of the community and persons affected by crime ‘to the greatest extent possible’; and also recognises the importance of taking account of the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in bail decision making; and promoting public understanding of bail practices and procedures.

Appeal of bail decision — principles

In accordance with previous decisions of this Court, it is now established that the principles stated in House v King[28] apply to an appeal to this Court from a bail decision.[29]
[28](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘House’).
[29]Zayneh v The King [2023] VSCA 311, [40] (Walker, Taylor and Boyce JJA); FT (a pseudonym) v The King [2024] VSCA 90, [51], [60]–[61] (Beach, McLeish and Niall JJA) (‘FT’).
In FT, the Court made the following observation concerning restraint which should be exercised by the Court in such an appeal:
There are other reasons that further justify appellate restraint in relation to the decision whether to grant bail, which relate to the nature of bail itself and in themselves support the application of the House v The King test. A decision to grant or refuse bail is an interlocutory decision about a matter of practice and procedure. Further, it is not a final order and may be revoked at any time. For both of these reasons, this Court has shown appropriate restraint in reviewing decisions in relation to bail.[30]
[30]FT [2024] VSCA 90, [61] (Beach, McLeish and Niall JJA).
The ground of appeal, relied on by the appellant, is that the judge’s conclusion, that the appellant was an unacceptable risk, was unreasonable. To establish that ground, the appellant must demonstrate that it was not reasonably open to the judge to reach that conclusion.[31]
[31]House (1936) 55 CLR 499, 504–5 (Dixon, Evert and McTiernan JJ); [1936] HCA 40.

Ground 1 — Analysis and conclusion

In considering that question, the starting point is that it is unarguable that, if the appellant were released on bail, there would be a material risk that he might re-offend and, in doing so, endanger other persons.
The charges in respect of which the appellant seeks bail, and the charges on which he was already on bail at the time that he is alleged to have offended, include possession of a firearm, reckless conduct endangering life, reckless conduct endangering serious injury, assault with a weapon, aggravated burglary, and thefts of motor vehicles.
The offending that is the subject of the charges brought by Detective Senior Constable Woodbridge include discharging a firearm. The charges brought by Senior Constable Aoun include physically assaulting an 11-year-old child and a woman, and being involved in a violent assault on the woman’s partner, who sustained serious injury as a consequence. The alleged offending in those charges involved acts of violence, which had the potential to, and in one case did, result in serious harm. In addition, the appellant has previous convictions for recklessly causing injury, assault and theft of a motor vehicle.
It is of further concern that the charges, in respect of which the appellant seeks bail, involved offending alleged to have been committed by him while he was subject to seven separate sets of bail, some of which were subject to restrictive conditions, including a curfew, and that he not drive a motor vehicle. He was also subject to seven separate sets of summary charges. As the judge correctly observed, the appellant has manifested a complete disregard for the conditions of bail, which were designed to provide protection to the community.[32]
[32]Reasons, [90].
In those circumstances, the conclusion is irresistible that if the appellant were released on bail, there would be a realistic risk that he would engage in further offending and conduct, which would endanger the safety or welfare of other persons. The critical question is whether it was reasonably open to the judge to reach the conclusion that, in the circumstances, that risk was unacceptable for the purposes of s 4E of the Bail Act, taking into account the surrounding circumstances prescribed by s 3AAA of the Act, and the considerations that apply to the appellant pursuant to s 3A and s 3B of the Act.

As the judge correctly acknowledged, the surrounding circumstances, and, in particular, the special vulnerabilities of the appellant as an Aboriginal child with an intellectual disability, who has, from a very early age, grown up in a dysfunctional home environment, are all significant considerations. They weighed against a conclusion that the risk, to which we have referred, was unacceptable.
The appellant is, and identifies as, an Aboriginal person. Section 3A of the Act provides that, in making a determination whether to grant bail in relation to an Aboriginal person, the Court must take into account any issues that arise due to the appellant’s Aboriginality, including his cultural background, his ties to extended family or place, and any other relevant cultural issue or obligation.
In HA (a pseudonym) v The Queen,[33] this Court explained the significance of those provisions in the following terms:
The fourth relevant factor was the appellant’s Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[34]
[33][2021] VSCA 64 (‘HA’).
[34]Ibid [68]–[69] (Maxwell P, Kaye JA).
In that respect, it is of note that, while in custody, the appellant had been receptive to, and had received, constructive support from the Aboriginal Youth Justice Program, including participating in the 16 Yards Program. As this Court recognised in HA, reconnection of an Aboriginal offender with culture and Country has been demonstrated to play a positive and constructive role in diverting such a person from established offending behaviours.[35]
[35]Ibid [68]; Re Hooper (No 2) [2021] VSC 476, [53] (Tinney J); Re Smith-Goode [2022] VSC 798, [68] (Kaye JA).
The appellant, being 17 years of age, is a child by law. Section 3B of the Bail Act provides that, in making a determination whether to grant bail, the Court must take into account (inter alia): the child’s age, maturity and stage of development at the time of the alleged offence; the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort; the need to preserve and strengthen the child’s relationships with that child’s guardian and other significant persons in his life; the importance of supporting the child to engage in education or in training or work; the need to minimise the stigma to the appellant resulting from being remanded in custody; the fact that time in custody has been shown to pose criminogenic and other risks for children; and the likely sentence should the appellant be found guilty of the offences charged.
In that respect, while the appellant is now 17 and a half years of age, it must be borne in mind that, from infancy, he has experienced significant trauma and abuse, and social and economic disadvantage, and has been raised in a dysfunctional home environment. He has a significant intellectual impairment, and he has been diagnosed to suffer Complex Post-Traumatic Stress Disorder and Emotional Dysregulation.
A further consideration, which was of some significance, was that, as noted by the judge, if the appellant were not granted bail, it is most probable that the period on which he would remain on remand would exceed any period of detention, which might ultimately be imposed on him for the charges which are outstanding against him.[36]
[36]Reasons, [99].
That consideration is a matter of particular importance. As the Court noted in HA, in respect of the circumstances in that case:
The Act does not direct that bail must be granted in a case in which the length of time that an accused is likely to spend in custody if bail is refused would exceed the likely sentence that would be imposed should the accused be found guilty. Rather, s 3AAA(1)(k) and (l) specify that as a consideration which must be taken into account as part of the “surrounding circumstances”.
It is, nevertheless, a consideration of significant importance in deciding whether ‘exceptional circumstances exist that justify the grant of bail’ and in considering whether such a risk as an offender would present if released on bail is acceptable. Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant’s age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventive detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.
In the absence of any specific statutory provision, preventive detention is alien to fundamental principles that underpin our system of justice.[37]
[37]HA [2021] VSCA 64, [62]–[64] (Maxwell P, Kaye JA); See also Roberts v The Queen [2021] VSCA 28 [36]–[39],[46] (Maxwell P, Niall and Emerton JJA).
Each of the above considerations are of significant weight in the present case. Ultimately, the issue for the judge was whether, giving appropriate weight to those circumstances, it should be concluded that, if the appellant were granted bail, there would be an unacceptable risk that he would endanger the safety or welfare of another person or other persons, particularly by committing an offence that has that effect.
In determining that issue, it was a matter of central relevance that the Youth Justice programs, which were available to the appellant when he was previously released on grants of bail, had been ineffective in diverting him from engaging in further offending, and, in particular, in offending which had endangered, or had the potential to endanger, members of the community.
In that respect, as the judge correctly noted, Youth Justice personnel have significant experience and capacity in dealing with troubled children and with young people with cognitive deficits, and who have grown up in dysfunctional and often traumatic domestic circumstances. It was not suggested on behalf of the appellant that the programs previously available to him were in any way defective or deficient, save that they might not, at that point, have been specifically directed to his intellectual disability.
In the Youth Justice report dated 8 May 2025, Ms Fuhrmann recorded that the appellant had not consistently demonstrated the capacity to comply with the requirements of a supervisory bail order, and that his inconsistent attendance had impacted the ability of Youth Justice and other service providers to implement supports and thereby mitigate risks in the community.
In the Youth Justice report dated 11 June 2025, Ms Bates-Fennessy similar noted that the appellant had demonstrated difficulties with abiding by the strict bail conditions, that included curfew and judicial monitoring, and which were designed to mitigate the risk of reoffending. Ms Bates-Fennessy noted that the appellant’s grandfather, and other care team members, had reported that the appellant had inconsistently complied with the curfew conditions of his bail.
It is in that context that particular reliance was placed by counsel for the appellant, both before the judge and on this appeal, on the involvement of Disability Justice, which, it was submitted, was a most important consideration in determining whether the relevant risk in the present case was unacceptable.
It might fairly be concluded that the involvement of Disability Justice may add a further layer of support to the appellant. However as we have discussed in considering ground 3, Ms Mayze did not proffer any additional particular program for the appellant. Further, she stated that while Disability Justice have the power to guide and encourage the appellant to engage with supports available to him, Disability Justice do not have the power or right to compel him to do so. Thus, as we have concluded in respect of ground 3, it was open to the judge to properly conclude that, in substance, the additional involvement of Disability Justice would not materially contribute to the reduction of the risk of the appellant offending in a manner which might endanger the community if he were released on bail.
It is quite apparent, from the foregoing discussion, that there were significant competing, and conflicting, factors, which the judge was required to take into account and balance in determining whether the appellant posed an unacceptable risk of committing a Schedule 1 or Schedule 2 offence while on bail, or otherwise endangering the safety or welfare of another person. That issue was not one which must necessarily admit of but one answer.
As the judge and the respondent have properly recognised, there were a number of factors militating against such a conclusion, including the appellant’s youth, his intellectual disability, his psychological disorder, his Aboriginality, his dysfunctional upbringing, his vulnerability in custody, the period he would remain on remand if he were not granted bail, and the likelihood that that period would exceed any period of detention which might ultimately be imposed on the appellant.
On the other hand, it was appropriate and necessary for the judge to weigh the considerations which militate in support of the conclusion that that risk was unacceptable. They included the appellant’s repeated reoffending while on previous grants of bail, and his repeated failure to connect with, and be assisted by important services, that were made available to him. Of particular significance, in considering that issue, was that the offending in which the appellant is alleged to have been implicated, while he was on bail, included Schedule 2 offences and offending which endangered the safety or welfare of other persons.
If the appellant were released on bail, he would return to live in the same domestic circumstances in which he resided when he allegedly repeatedly offended while on bail. We have no doubt that his grandfather has acted with the best intentions, and has indeed commendably provided a home to the appellant and his siblings in circumstances of real necessity. However, it is quite apparent that the appellant’s domestic circumstances were such that he was given to reoffending without any apparent restraint, notwithstanding the support and services provided to him by Youth Justice. As we have noted, at the risk of repetition, the judge did not err in concluding that the involvement of Disability Justice would not materially add to the protections already provided by Youth Justice.
In those circumstances, it could not be determined that the judge’s conclusion, that the appellant was an unacceptable risk of offending in a manner which might endanger the safety or welfare of another person or other persons, was unreasonable.
It follows that ground 1 must fail.

Summary of conclusions

For the foregoing reasons, the appellant has not succeeded on any of the three grounds of appeal relied on. The appeal must therefore be dismissed.
Finally, we note that counsel and solicitors, who appeared and acted on behalf of the appellant on this appeal, did so pro bono. Their conduct in doing so was consistent with the highest traditions of the Victorian legal profession. The submissions that were presented on behalf of the appellant were well prepared, thorough and comprehensive. It is appropriate that the Court acknowledges the important contribution that counsel, and their instructing solicitors, in that way, made to the presentation of the appellant’s case, and to our system of justice.
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[2025] VSCA 167

8 July 2025