Re Application for Bail by JS - [2020] VSC 447

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0151

IN THE MATTER OF the Bail Act 1977

and

IN THE MATTER OF an Application for Bail by JS

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2020
DATE OF ORDERS:	3 July 2020
DATE OF REASONS:	23 July 2020
CASE MAY BE CITED AS:	Re Application for Bail by JS
MEDIUM NEUTRAL CITATION:	[2020] VSC 447

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CRIMINAL LAW — Application for bail — Child aged 15 years — Trafficking in a drug of dependence to a child and other offences whilst on bail for Schedule 2 offences — Seven sets of charges — Applicant required to demonstrate exceptional circumstances justifying the grant of bail — Exceptional circumstances conceded by respondent — Exceptional circumstances established — No unacceptable risk — Bail granted with conditions —Bail Act 1977, ss 1B, 3AAA, 3B, 4AA, 4A, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K Rolfe	Criminal Lawyers Geelong
For the Respondent	Mr P McKimmie	Victoria Police

HIS HONOUR:

The applicant, JS, is a child aged 15 years.

On 4 June 2020, he was arrested and remanded in custody on the following charges:

· Trafficking in a drug of dependence to a child (cannabis);

· Retaining stolen goods;

· Supplying a drug of dependence to a child (cannabis);

· Possessing a drug of dependence (two counts) (cannabis, magic mushrooms); and

· Committing an indictable offence whilst on bail (four counts).

At the time of the alleged offending, the applicant was on bail or charged on summons in respect of six additional matters. In total, he faces 37 charges arising from offending said to have occurred between 22 October 2019 and 4 June 2020.

On 5 June 2020, the applicant applied for bail in the Geelong Children’s Court. His application was refused on the basis that, although he had successfully demonstrated exceptional circumstances, the presiding magistrate found that there was an unacceptable risk that, if granted bail, he would endanger the safety and welfare of any person or commit an offence while on bail. On the same day, his existing grants of bail were revoked and he was remanded on all seven matters.

On 29 June 2020, the applicant made a further application for bail in the Geelong Children’s Court, which was again refused on the same basis as the first application.

By notice dated 30 June 2020, he made an application for bail in this Court.

Because the applicant is accused of committing Schedule 2 offences within the meaning of the Bail Act 1977 (‘the Act) while on bail for additional Schedule 2 offences, I am required to refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify his release on bail.[1]
[1]Bail Act 1977 ss 4AA(2)(c)(i) and s 4A(1A) (‘the Act’).

In written material filed on behalf of the respondent, it is conceded that it is open to me to find that…

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 Application for Bail by JS

Details

AGLC: Re Application for Bail by JS [2020] VSC 447
Case: [2020] VSC 447
Decision Date: 23 July 2020

CaseChat Overview and Summary

The 15-year-old applicant, JS, applied for bail in the Magistrates' Court of Victoria following the committal of seven sets of charges including trafficking in a drug of dependence to a child and various other offences, whilst on bail for Schedule 2 offences. The respondent conceded that exceptional circumstances existed, justifying the grant of bail, but submitted that the applicant’s risk to the community was unacceptable. The court was required to determine whether bail should be granted and, if so, what conditions should apply.

The court considered the statutory criteria for bail under the Bail Act 1977. It found that the exceptional circumstances condition was satisfied as the respondent conceded that exceptional circumstances existed. The court further considered the risk to the community posed by the applicant, and concluded that there was no unacceptable risk of the applicant reoffending or interfering with witnesses or the administration of justice. The court also considered the circumstances of the alleged offending, including the fact that the applicant was a minor, and the impact that a custodial sentence may have on the applicant.

Accordingly, the court granted the applicant bail, subject to certain conditions including a curfew and electronic monitoring. The court ordered that the applicant reside with a relative, and that the relative sign a bail undertaking. The applicant was also required to surrender any travel documents and to report to a police station on a regular basis. The court further ordered that the applicant be subject to a drug and alcohol assessment, and that the results of the assessment be provided to the court prior to the next hearing.

Orders