Re Andrew - [2022] VSC 46

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0021

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for bail by KALEEDRE ANDREW

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2022
DATE OF RULING:	14 February 2022
CASE MAY BE CITED AS:	Re Andrew
MEDIUM NEUTRAL CITATION:	[2022] VSC 46

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CRIMINAL LAW – Bail application – Charges of aggravated home invasion and theft of motor vehicle – Applicant 18 years of age – Limited previous offending – First time in adult custody – Stable home environment and employment – Prospect of delay – Support of Youth Justice – Whether exceptional circumstances established – Whether unacceptable risk of offending or endangering the welfare and safety of members of the community – Bail granted with conditions – Bail Act 1977 ss 3AA, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Sala	James Dowsley & Associates
For the Respondent	Mr J Shaw	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 24 December 2021, the applicant was arrested and charged with the theft of a motor vehicle (charge 1) and aggravated home invasion (charge 2). He unsuccessfully applied to the Magistrates’ Court for bail on 29 December, and now applies to this Court for bail.

Alleged offending

The two offences, with which the applicant is charged, are alleged to have been committed by him on 24 December 2021 in company with two co–offenders, MM (aged 17 years) and JV (aged 16 years). The applicant was born on 28 April 2003, and is 18 years of age.

The summary of circumstances, filed by the informant, describes six separate incidents, which occurred between 12:01 am and shortly after 6:20 pm on 24 December last. The co–offender JV is charged with offences in relation to all six incidents, and MM and the applicant are charged in respect of their alleged involvement in the fifth and sixth incidents.

The second incident concerned an aggravated home invasion in Tarneit at 1:35 am on 24 December. In the course of that offence, a silver Mazda 3 hatch motor vehicle, belonging to the owner of the premises, was stolen.

The third incident constituted an attempted theft of a motor vehicle also in Tarneit at 4:35 am on 24 December, and in the course of the commission of that offending, the silver Mazda vehicle was sighted on closed circuit television (CCTV).

The fifth incident constituted the aggravated home invasion which is the subject of charge 2. The sixth incident concerns the flight by the applicant and his co-offenders in the stolen Mazda vehicle after the home invasion.

The home invasion is alleged to have taken place at premises in Tarneit at approximately 6:00 am. At that time, CCTV footage captured the silver Mazda vehicle pulled up opposite the victim’s address. MM and JV exited the vehicle and approached the front door of the victim’s premises. MM then…

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 Andrew

Details

AGLC: Re Andrew [2022] VSC 46
Case: [2022] VSC 46
Decision Date: 14 February 2022

CaseChat Overview and Summary

The case of Re Andrew involved a bail application by the applicant, who was facing charges of aggravated home invasion and theft of a motor vehicle. The matter was heard in the Court of Appeal, which was reviewing the decision of the lower court to refuse bail. The applicant, an 18-year-old, was on his first occasion in adult custody and had a limited history of offending. He was alleged to have committed the offences in the company of others and was currently remanded in custody awaiting trial.

The legal issues before the court were whether the lower court had correctly applied the relevant statutory provisions in reaching its decision to refuse bail. The applicant argued that exceptional circumstances had been established, given his age, limited criminal history, stable home environment, and employment. The applicant also contended that the risk of him reoffending or endangering the welfare and safety of members of the community was minimal. The court was required to determine whether these factors warranted a grant of bail.

The court found that the lower court had erred in its assessment of the risk of reoffending and the risk to the community. It was noted that the applicant had limited previous offending and had been living in a stable home environment with employment. The court found that the applicant's support of Youth Justice and the prospect of delay were significant factors in favour of bail. The court held that the lower court had not given sufficient weight to these factors and that the risk of reoffending or endangering the welfare and safety of members of the community was minimal. The court granted bail with conditions, including electronic monitoring and a curfew.

The court ordered that the applicant be released on bail, subject to the conditions of electronic monitoring and a curfew, pending the outcome of his trial. The applicant was also required to report to police on a regular basis and to refrain from contacting any witnesses in the case. The court noted that these conditions were necessary to ensure the safety of the community and to prevent the applicant from reoffending.

Orders