Re DS (a pseudonym) - [2024] VSC 823

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2024 0292

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by DS (a pseudonym)[1]

[1]As the applicant is under 18 years of age, a pseudonym has been adopted pursuant to s 534 of the Children, Youth and Families Act 2005 (Vic).

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JUDGE:	Kaye JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2024
DATE OF JUDGMENT:	23 December 2024
CASE MAY BE CITED AS:	Re DS (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VSC 823

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CRIMINAL LAW — Bail application — Applicant charged with home invasion, aggravated burglary person present, burglary, theft of motor vehicle, obtaining property by deception, theft, retaining stolen goods — Whether exceptional circumstances established — Whether unacceptable risk of endangering the safety and welfare of others —Applicant 14 years of age — Applicant diagnosed with Attention Deficit Hyperactivity Disorder and Generalised Anxiety Disorder—Difficult circumstances in custody — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4A, 4AA, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Kounnas	McFarlane Criminal Lawyers
For the Respondent	Ms J Hotchkin	Victoria Police

HIS HONOUR:

The applicant, who is 14 years of age, is subject to three sets of charges for indictable offences, alleged to have been committed between 6 July 2024 and 12 November 2024. Following his arrest on 13 November, he was remanded in custody. On 10 December 2024, his most recent application for bail to the Wonthaggi Children’s Court was refused. He now applies to this Court for bail.

The alleged offending

For the purposes of the application, it is necessary to set out the circumstances of the alleged offending in brief detail.

(1) The Cole charges

The first set of charges, laid by Detective Sergeant Leigh Cole, comprises one charge of home invasion (charge 1), four charges of theft of a motor vehicle (charges 2, 3, 4 and 8), one charge of obtaining property by deception (charge 5), one charge of burglary (charge 6), and three charges of theft (charges 7, 10 and 11).

It is alleged that, at some time between 9:30 pm on 16 September 2024 and 4:15 am on 17 September 2024, offenders entered a home through an unlocked laundry door. The owner of the house was asleep in his bedroom. The offenders stole keys for two motor vehicles and a bankcard belonging to the victim. They then stole both vehicles, namely, an Alfa Romeo sedan and a Holden Commodore. On 17 September 2024 at 5:18 am, the Alfa Romeo sedan attended at a service station in Braeside. It is alleged that CCTV footage depicts that the applicant exited the passenger seat, entered the store, and, using the victim’s stolen bankcard, purchased a beverage for $4.20. He then left the store in the stolen vehicle. Subsequently, the stolen Holden Commodore vehicle was recovered in Lyndhurst. On examination, a fingerprint belonging to the applicant was lifted from the internal…

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 DS (a pseudonym)

Details

AGLC: Re DS (a pseudonym) [2024] VSC 823
Case: [2024] VSC 823
Decision Date: 23 December 2024

CaseChat Overview and Summary

The case of Re DS was heard in the Children's Court of Victoria. The applicant, DS, sought bail in relation to a number of serious criminal charges, including home invasion, aggravated burglary, theft of a motor vehicle, and obtaining property by deception. The case involved complex considerations of the applicant's mental health, his age, and the exceptional circumstances in which he found himself. The court was tasked with determining whether exceptional circumstances existed that would justify granting bail, and whether there was an unacceptable risk of endangering the safety and welfare of others if bail were granted.

The primary legal issue before the court was whether the exceptional circumstances, as defined by the Bail Act 1977 (Vic), were present in this case. The applicant, who was 14 years old at the time of the hearing, had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Generalised Anxiety Disorder (GAD). The court considered the impact of these conditions on the applicant's behaviour and the difficulties he faced in custody. The court also examined the nature and seriousness of the offences with which the applicant had been charged, and the potential risk to the community if bail were granted.

In its decision, the court found that while the applicant's mental health conditions and difficult circumstances in custody were indeed exceptional, they did not outweigh the seriousness of the charges against him. The court concluded that there was an unacceptable risk of endangering the safety and welfare of others if bail were granted. The court considered the need to protect the community and the potential for the applicant to reoffend if released on bail. The court ultimately denied the applicant's application for bail.

The court ordered that the applicant remain in custody until the matter was further heard. The court acknowledged the difficult circumstances faced by the applicant but emphasised the need to balance these with the need to protect the community and uphold the rule of law. The decision highlights the complex considerations that arise in bail applications involving young people with mental health issues, and the importance of carefully weighing the competing interests involved.

Orders