Re AZ - [2023] VSC 648

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0249

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by AZ

---

JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2023
DATE OF RULING:	26 October 2023
CASE MAY BE CITED AS:	Re AZ
MEDIUM NEUTRAL CITATION:	[2023] VSC 648

---

CRIMINAL LAW – Bail – Applicant a 15 year old child – No prior convictions – Charges of armed robbery, aggravated assault, theft and committing an indictable offence whilst on bail – Support of Youth Justice bail support services – Whether exceptional circumstances – Whether an unacceptable risk – Bail granted with conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 12 – Children, Youth and Families Act 2005 (Vic), ss 3, 346, 356I, 534.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	D Zajd	Victoria Legal Aid
For the respondent	K McGregor	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

This is an application for bail made by a 15 year old child. On 13 October 2023, the applicant (“AZ”)[1] was arrested and charged with 1 count of armed robbery, 1 count of aggravated assault, 1 count of theft and 2 counts of committing an indictable offence whilst on bail. The charges relate to an incident which occurred on 11 October 2023 in Pakenham, Victoria.

B. Background

[1]A pseudonym has been used in this ruling to protect the identity of the applicant: compare Children, Youth and Families Act 2005 (Vic), s 534(1)(a)(ii).

B.1 Alleged offending

At approximately 2.57pm on 11 October 2023, the victim of the alleged offending was sitting outside a group of shops on Henry Street in Pakenham when 2 males wearing hooded jumpers and face masks approached the victim and demanded that he hand over his mobile phone. Closed-circuit television footage from a nearby shop shows that when the victim refused to hand over his mobile phone, the 2 males kicked the victim several times in the head and body and repeated their demands. The male later identified by police as AZ demanded that the victim logout of his Apple iCloud account on his mobile phone. The other perpetrator then produced a large kitchen knife which he had been concealing in his pants. The victim subsequently handed over his mobile phone and the perpetrators fled the scene.
On 13 October 2023, a search warrant was executed at AZ’s residence. Police seized several items of clothing which matched the clothing worn by the perpetrator identified as AZ in the closed-circuit television footage obtained. AZ was arrested and conveyed to Narre Warren Police Station for interview. AZ was then charged by Senior Constable Lyons with the above listed charges,[2] and was remanded in custody.
[2]See par 1 above.

B.2 Procedural history

On 19 October 2023, AZ made an application to this court for a grant of bail after having been denied bail in the…

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 AZ

Details

AGLC: Re AZ [2023] VSC 648
Case: [2023] VSC 648
Decision Date: 26 October 2023

CaseChat Overview and Summary

The matter before the Court involved a 15-year-old child, referred to as the applicant, who faced serious charges including armed robbery, aggravated assault, theft, and committing an indictable offence while on bail. The applicant had no prior convictions and was supported by Youth Justice bail support services. The crux of the dispute was whether the applicant should be granted bail under the Bail Act 1977 (Vic), considering the exceptional circumstances and the risk of reoffending. The court had to determine if there were exceptional circumstances justifying the grant of bail and whether the risk of reoffending was unacceptable.

The legal issues before the court were the interpretation and application of various sections of the Bail Act 1977 (Vic) and the Children, Youth and Families Act 2005 (Vic). Specifically, the court needed to consider sections such as 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, and 12 of the Bail Act, as well as sections 3, 346, 356I, and 534 of the Children, Youth and Families Act. The primary question was whether the exceptional circumstances of the case warranted the granting of bail, and if the risk of reoffending by the applicant was an unacceptable risk that precluded bail.

The court found that the applicant's age, lack of prior convictions, and the support from Youth Justice bail support services constituted exceptional circumstances. The court also concluded that the risk of reoffending, while a consideration, was not such as to render it an unacceptable risk for the purposes of granting bail. Consequently, the court exercised its discretion under the Bail Act to grant bail to the applicant, subject to specific conditions designed to ensure the applicant’s appearance in court and to protect the community.

The final orders of the court included granting the applicant bail under the Bail Act 1977 (Vic), with conditions such as reporting requirements, residence restrictions, and electronic monitoring. The court also required the applicant to comply with the terms of the Youth Justice bail support services. The orders were designed to balance the applicant's right to liberty with the need to protect the community and ensure the applicant's attendance in court.

Orders