Re BJ
[2021] VSC 742
•5 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0293
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by BJ |
---
JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 October 2001 & 5 November 2021 |
DATE OF JUDGMENT: | 5 November 2021 |
CASE MAY BE CITED AS: | Re BJ |
MEDIUM NEUTRAL CITATION: | [2021] VSC 742 |
---
CRIMINAL LAW – Application for bail – Theft – Burglary – Theft of motor vehicle – Exceptional circumstances established – No unacceptable risk – Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Swiney | Balit Ngulu – Victorian Aboriginal Legal Service |
| For the Respondent | Mr S McGinness | Victoria Police |
HIS HONOUR:
On 25 June, 26 June and 30 June 2021, not long after being released on a Youth Probation Order (parole), it was alleged that the applicant had been involved in theft of a motor vehicle, armed robbery, false imprisonment, additional two thefts of a motor vehicle, aggravated burglary and a further theft of a motor vehicle. In relation to events that occurred on 24 October 2021, there is a further charge of theft and burglary.
In relation to the events of 25, 26 and 30 June 2021, the applicant remained on remand for a significant period. After having been released from remand, the applicant was then subsequently arrested for the later offending and the bail that he was then on was revoked.
Of more significance for present purposes however, is that the behaviour of the applicant in relation to his conditions of bail between his release on bail and his re-arrest, was unsatisfactory. It turns out that his behaviour on remand has also been relatively unsatisfactory.
The Applicable Legislation
The applicant’s general history of offending and offending whilst on bail, leads the applicant into the position where he has to show exceptional circumstances.[1]
[1]The Bail Act 1977 (‘the Act’) ss 4AA(1), 4A(1A) and 4A(2).
Exceptional Circumstances
He is a child, as the law understands that expression, and he is of Aboriginal descent. In relation to those two considerations, he has specific provisions in the Bail Act which are to be applied to him.[2] He has the advantage of the law regarding his rehabilitation as being more significant at this time in his life, than punishment, although punishment is not irrelevant.
[2]Ibid ss 3A and 3B.
It is not clear to me that the applicant would necessarily receive a term of detention which would exceed the time that he has already spent on remand or, that by the time the matter comes to be completed, he might be detained for a period greater than the period of his detention. Because of his youth in particular and because of that likelihood, I am satisfied that exceptional circumstances are made out.
Unacceptable Risk
That brings me to my obligation to consider whether or not it has been shown that the applicant is an unacceptable risk of offending, in particular of offending whilst on bail, and, as a subset of that, of offending by failing to keep the conditions of any bail on which he is released.
Only a foolish person would, on examining the history of the applicant, conclude that he was not a risk and a fairly significant risk of reoffending whilst on bail. The question though arises as to whether or not two things have occurred:
(a) That the applicant, by finding himself back in custody and hopefully therefore having some appreciation of what happens in relatively short order if he does not obey his conditions of bail or if he reoffends; and
(b) That such conditions may be imposed as to reduce the risk to a level which his not unacceptable.
Now, it is not a positive finding that it is an acceptable risk. It is merely a finding that by the imposition of these conditions I find that the risk will be a not unacceptable one. And in those conditions I propose the following orders.
Ruling
I note the Court is satisfied that exceptional circumstances exist that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
BJ be admitted to bail on his own undertaking and on the following special conditions:
a) He attend the Shepparton Children’s Court on 8 November 2021 and the Koori Court at Melbourne Children’s Court on 18 November 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
b) He reside at the direction of the Department of Families, Fairness and Housing (DFFH) and will notify the informant within 24 hours of any proposed change of address.
c) He remain at those premises between the hours of 9.00pm and 8.00am each day for the duration of bail unless in the company of DFFH, a Youth Justice representative or Ms Boland, or a Delegate or nominee of DFFH or Youth Justice.
d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
e) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
g) He comply with all lawful directions of Youth Justice and attend all appointments as directed by them or by Ms Boland.
h) He not contact, directly or indirectly, the co-accused, being LHG, IH, NH and TM for the duration of the bail period.
i) He not contact, directly or indirectly, any witness for the prosecution, except the Informant.
j) He not leave the Greater Shepparton LGA unless in the company of DFFH or Youth Justice, or to attend Court.
k) He not leave the State of Victoria.
---
0
0
0