Re Dr - [2020] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0096

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by DR

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2020
DATE OF JUDGMENT:	13 May 2020
DATE OF REASONS	20 May 2020
CASE MAY BE CITED AS:	Re DR
MEDIUM NEUTRAL CITATION:	[2020] VSC 282

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CRIMINAL LAW – Bail Home invasion, aggravated home invasion and other offences – 17 year old child offender – Criminal history with appearances for violence - Applicant on Youth Justice Supervised Bail and subject to youth supervision order at time of offending – Breach of curfew – Youth Justice still supportive – Family support and stable accommodation – Period on remand not likely to exceed sentence – COVID-19 considerations - Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Portelli	James Dowsley & Associates
For the Respondent	Ms D Caruso	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant, a child aged 17, applied for bail in respect of a number of serious charges he faces, including home invasion and aggravated home invasion, arising from a spree of offending on 7 and 8 September 2019.

The parties agreed that bail was required to be refused unless the applicant could demonstrate that exceptional circumstances existed that justified his release on bail. This was because aggravated home invasion is a Schedule 1 offence.

Having heard the application, I determined that the applicant had failed to discharge the onus resting upon him of establishing exceptional circumstances. Furthermore, I was of the view that even had the applicant succeeded in discharging the above onus, I would have concluded that the respondent had proved that the risk posed by the applicant of reoffending or endangering the community if released on bail would be unacceptable.

I therefore refused the application for bail. I indicated at the time that I would publish my detailed reasons for the decision at a future time. These are those reasons.

Procedural history

The applicant has been in custody since being remanded on 8 September 2019. The next listed date is a mention on 21 May 2020.

The applicant has been refused bail on two occasions in the Children’s Court on 14 October 2019 and 30 April 2020. Bail was refused on the first occasion on the basis that the applicant had failed to demonstrate exceptional circumstances and in addition because there was an unacceptable risk that he would commit an offence while on bail or endanger the safety or welfare of any person. On the second occasion, it was found that the applicant had demonstrated the existence of exceptional circumstances, but bail was refused on the basis of an unacceptable risk.

Background to offending the subject of bail application

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 Dr

Details

AGLC: Re Dr [2020] VSC 282
Case: [2020] VSC 282
Decision Date: 13 May 2020

CaseChat Overview and Summary

The matter before the Court involved a 17-year-old applicant who was facing charges including home invasion, aggravated home invasion, and other related offences. The applicant had a history of appearing in court on violent charges and was on Youth Justice Supervised Bail at the time of the current offending. The applicant's youth justice supervision order was in place due to a breach of curfew, yet the youth justice system remained supportive of the applicant. The applicant had family support and stable accommodation. The central issue for the Court was whether the applicant should be granted bail, considering the nature and seriousness of the offences, the applicant's history, and the COVID-19 considerations.

The Court examined whether the applicant's history and the gravity of the current charges established an unacceptable risk to the community or any individual if the applicant were granted bail. The Court also considered the support systems available to the applicant, including family and youth justice support, and whether these could mitigate the risk of reoffending. The Court determined that the exceptional circumstances required to grant bail were not met, as the risk to the community was deemed unacceptable. Additionally, the Court noted that the period on remand would likely not exceed the potential sentence if the applicant were convicted, and thus bail was not warranted.

The Court concluded that the risk to the community and any individual from the applicant's release on bail outweighed any mitigating factors. The Court was mindful of the COVID-19 pandemic, but it found that these circumstances did not alter the inherent risk posed by the applicant's release. Therefore, the Court refused the application for bail, emphasising the seriousness of the charges and the applicant's criminal history.

The final orders of the Court were that the application for bail was refused. The applicant remained in custody pending the outcome of the criminal proceedings.

Orders