Re DG - [2019] VSC 622

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0190

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by DG

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2019
DATE OF JUDGMENT:	23 September 2019
CASE MAY BE CITED AS:	Re DG
MEDIUM NEUTRAL CITATION:	[2019] VSC 622

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CRIMINAL LAW – Bail – Child applicant – Charges of rape, false imprisonment and unlicensed driving – Requirement to show a compelling reason exists that justifies grant of bail – Whether a compelling reason established – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Youth Justice not supporting bail – Time spent in custody – Likely sentence – Family support - Compelling reason established – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3B, 4C, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Hollingworth	Orenstein Lawyers
For the Respondent	Ms H Spowart	Victoria Police

HER HONOUR:

DG, a 16-year-old child, seeks bail.

On 12 April 2019, DG was charged with offences of rape, false imprisonment (two charges), and unlicensed driving (‘the informant Vaughan matter’). He was remanded in custody at Parkville Youth Justice Centre that same day. The charges faced by DG relate to events alleged to have occurred on 5 April 2019.

There is one co-accused, MM, who faces two charges of rape. He has no criminal history, and was granted bail in the Children’s Court on 27 June 2019.

At the time of the alleged offending, DG was subject to a deferral of sentence period for a single charge of affray. On 6 August 2019, DG was sentenced to a 12-month Youth Probation Order for that offence.

On 10 May 2019, while on remand in relation to the informant Vaughan matter, DG was charged on summons with offences alleged to have occurred on 8 March 2019, namely, behaving in a riotous manner and stating a false name (‘the informant Garside matter’).

DG has been refused bail three times in respect of the informant Vaughan matter, in the Children’s Court, on 23 May, 9 August and 4 September 2019. On all occasions, bail was refused on the basis that, inter alia, DG was an ‘unacceptable risk’ within the meaning of s 4E of the Bail Act 1977 (‘the Act’).[1]
[1]Particularly, on 23 May 2019, bail was refused on the basis that DG was an unacceptable risk of committing an offence while on bail and endangering the safety and welfare of any person. On 9 August 2019, bail was refused on the basis that DG failed to show a ‘compelling reason’ and was an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person or, interfering with a witness or otherwise obstructing the course of justice in any matter. On 4…

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 DG

Details

AGLC: Re DG [2019] VSC 622
Case: [2019] VSC 622
Decision Date: 23 September 2019

CaseChat Overview and Summary

In the matter of Re DG, the applicant, a young person facing serious charges including rape, false imprisonment and unlicensed driving, sought bail from the court. The youth justice department opposed the application, arguing that there was an unacceptable risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail. The court was required to determine whether a compelling reason existed to grant bail, whether the applicant posed an unacceptable risk, and whether the time spent in custody and family support could be considered in the decision-making process.

The court considered the statutory framework provided by the Bail Act 1977, which mandates that bail should not be granted unless a compelling reason exists, and that the risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail is not unacceptable. The court also examined the factors relevant to the application, including the nature and seriousness of the charges, the age of the applicant, the support of the family, and the time already spent in custody. In assessing whether a compelling reason existed, the court recognised the applicant's strong family support and the time already spent in custody, which were significant factors in favour of granting bail.

After weighing the various factors, the court concluded that a compelling reason had been established, and that there was no unacceptable risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail. The court took into account the support of the applicant's family, the seriousness of the charges, and the time already spent in custody. The court determined that these factors outweighed the concerns expressed by the youth justice department, and accordingly, granted the application for bail. This decision was made in accordance with the provisions of the Bail Act 1977, including sections 1B, 3AAA, 3B, 4C, 4D and 4E.

Orders