Re DB - [2019] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0029

IN THE MATTER of the Bail Act 1997

and

IN THE MATTER of an Application for Bail by DB

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2019
DATE OF JUDGMENT:	12 February 2019
CASE MAY BE CITED AS:	Re DB
MEDIUM NEUTRAL CITATION:	[2019] VSC 53

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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Whether exceptional circumstances justifying bail – Whether applicant, if bailed, presents an unacceptable risk – Application opposed – Applicant aged 13 years with no criminal history, but recent charges withdrawn on basis of presumption of doli incapax – Current charges extremely serious in volume and nature – Release on supervised bail program supported by Youth Justice – Exceptional circumstances established – Applicant a risk, but not an unacceptable risk that cannot be ameliorated with conditions of bail – Bail granted with conditions – Bail Act 1997 (Vic) ss 3AAA, 3B, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Casey	Dotchin Tan Lawyers
For the Respondent	Mr M. Sontag	Victoria Police Legal Services

HIS HONOUR:

On 1 February 2019, DB applied to this Court for a grant of bail. He is aged 13. He has been in custody since 2 January 2019.

The alleged offending

The application relates to an uncomfortably large number of matters. There are five sets of charges to which this application relates, each of which I will address in turn.

Informant Walker

Firstly, in relation to the informant Detective Senior Constable Andrew Walker, the applicant was charged on 27 September 2018 with offences between 26 and 27 September 2018 in respect of which he was granted bail on 1 October and that bail was revoked on 18 January 2019. Those offences included, home invasion (stealing) offensive weapon, aggravated burglary person present, theft (four counts), criminal damage (four counts), possessing a controlled weapon, theft of a motor vehicle, burglary (four counts), theft from a motor vehicle (four counts), attempted theft from a motor vehicle (four counts), retention of stolen goods, and negligently dealing with the proceeds of crime.

In summary, it is alleged that, between 6.00 pm on 26 September and 8.30 am on 27 September 2018, the applicant and a co-accused stole a vehicle in Lynbrook before breaking into a number of vehicles and homes in the Berwick and Narre Warren South areas and stealing and attempting to steal various items.

Additionally, at about 10.55 am on 27 September 2018, it is alleged that the applicant and co-accused broke into a house in Narre Warren South whilst armed with a hunting knife. There were two persons present at the time, aged 14 and 18, who barricaded themselves in a bedroom and called emergency services. The applicant and co-accused allegedly attempted unsuccessfully to gain entry to the barricaded room before rummaging around through other rooms in the house and stealing various items.

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 DB

Details

AGLC: Re DB [2019] VSC 53
Case: [2019] VSC 53
Decision Date: 12 February 2019

CaseChat Overview and Summary

The applicant, DB, a 13-year-old with no prior criminal history, sought bail following charges under the Schedule 2 of the Crimes Act 1958 (Vic). The nature of the charges was extremely serious, both in terms of their volume and nature. The application was opposed, primarily due to the severity of the alleged offences. The court had to determine whether exceptional circumstances existed to justify granting bail, and if DB, if released, presented an unacceptable risk to the community.

The legal issues the court needed to address were whether the exceptional circumstances existed to justify granting bail and whether DB, if bailed, presented an unacceptable risk to the community. The court considered the presumption of doli incapax, the support of a supervised bail program by Youth Justice, and the nature and seriousness of the charges. The court found that while DB, if released, did present a risk, this risk was not so high as to be an unacceptable risk that could not be mitigated with appropriate bail conditions.

In reaching its decision, the court considered the exceptional circumstances and the support of the Youth Justice supervised bail program. The court determined that the applicant's age, the absence of a criminal history, and the support of Youth Justice provided a framework within which the risk could be managed effectively. Consequently, the court granted bail with specific conditions designed to mitigate the risk of reoffending and ensure the safety of the community. The decision was made under the Bail Act 1997 (Vic) and sections 3AAA, 3B, 4AA, 4A, and 4E.

Orders