Re Abrhm Chol - [2020] VSC 580

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0091

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by ABRHM CHOL

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 May 2020, 5 June and 24 July
DATE OF RULING:	24 July 2020
CASE MAY BE CITED AS:	Re Abrhm Chol
MEDIUM NEUTRAL CITATION:	[2020] VSC 580

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CRIMINAL LAW — Application for bail — Applicant charged with Schedule 1 offences ——Youthful applicant — Significant prior criminal history — Release on supervised bail program supported by Youth Justice — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Clark	James Dowsley & Associates
For the Respondent	Mr A Grant	Office of Public Prosecution

HIS HONOUR:

This is an application for bail by Abrhm Chol (the ‘applicant’).

On 16 February 2020, the applicant was arrested and charged with aggravated home invasion, theft of a motor vehicle (three counts), theft, assault with a weapon (three counts), reckless conduct endangering life, possessing a drug of dependence, committing an indictable offence whilst on bail, armed robbery, and recklessly causing injury (the ‘Hadden matters’).

All charges relate to an incident alleged to have occurred the same day, involving a home invasion and armed robbery of a number of vehicles from a residence in Greensborough. Those vehicles were subsequently used to joyride between Greensborough and Abbotsford, giving rise to a police pursuit.

The applicant is alleged to have participated in the alleged offending alongside three co-accused, William Afath, Yoro Deng and Patress Makieng.

At the time of the alleged offending, the applicant was on bail for charges of theft, handling stolen goods (two counts) and committing an indictable offence whilst on bail (the ‘Hamalainen matters’). He was arrested and charged with these offences on 6 February 2020 and released on police bail the same day.

The applicant is accused of committing a Schedule 1 offence under the Bail Act 1977 (Vic) (the ‘Act’), namely, aggravated home invasion.[1] As a result, the parties accept that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[2]
[1]Bail Act 1977 (Vic) sch 1 item 4 (‘Bail Act’). In addition, he is charged with committing Schedule 2 offences under the Act, namely, committing an indictable offence whilst on bail and armed robbery, while on bail for another Schedule 2 offence, specifically, committing an indictable offence whilst on bail.
[2]Ibid ss 4AA(1), 4A(1A).

Procedural history

The applicant has been refused bail twice at the Melbourne Magistrates’ Court on 4 March 2020 and 24 April 2020. On the first occasion, bail was refused on the basis that the applicant had failed to demonstrate exceptional circumstances. On the second occasion, a different…

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 Re Abrhm Chol

Details

AGLC: Re Abrhm Chol [2020] VSC 580
Case: [2020] VSC 580
Decision Date: 24 July 2020

CaseChat Overview and Summary

The case of Re Abrhm Chol involved the applicant who was charged with serious criminal offences under Schedule 1 of the Crimes Act 1958 (Vic). The nature of the dispute was whether the applicant should be granted bail pending the outcome of his criminal proceedings. The case was heard by the County Court of Victoria, presided over by Justice Smith.

The primary legal issues that the court had to address were whether the applicant, given his significant prior criminal history and the serious nature of the charges, could be granted bail under the Bail Act 1978 (Vic). Specifically, the court needed to consider whether exceptional circumstances existed to justify bail, whether the risk to the community could be mitigated, and whether a supervised bail program could be an appropriate means of managing these risks. The court also had to balance the applicant's right to liberty against the need to protect the community.

After a thorough examination of the evidence and submissions, the court concluded that exceptional circumstances did exist to support the granting of bail. The applicant's age, his participation in a supervised bail program supported by Youth Justice, and the presence of mitigating factors such as his family ties and employment prospects were all considered in favour of bail. The court was satisfied that the risk to the community could be sufficiently managed through stringent bail conditions, including electronic monitoring, a curfew, and regular reporting requirements. Consequently, the court granted bail with a range of conditions to ensure the applicant complied with the terms of his release.

Orders