Re DZ (a pseudonym) - [2024] VSC 687

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0235

IN THE MATTER of the Bail Act 1977

and

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

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	T Forrest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17–18 October 2024
DATE OF JUDGMENT:	18 October 2024
CASE MAY BE CITED AS:	Re DZ (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VSC 687

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CRIMINAL LAW — Bail application — Applicant facing multiple charges including aggravated intentional exposure of an emergency worker to a safety risk, aggravated reckless exposure of an emergency worker to a safety risk, theft of a motor vehicle, unlicensed driving, attempted robbery — Appellant 17 years old — Mild intellectual disability — Aboriginal heritage — Factors relevant to assessing whether risk unacceptable — Compelling reasons — Unreasonable delay before trial — Unacceptable adverse impacts of continued pre‑trial incarceration — Appeal allowed — Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Foot	Kurnai Legal Practice
For the Respondent	Mr N Moran	Mr N Moran, Solicitor Advocate for Victoria Police

HIS HONOUR:

Introduction

The applicant is a 17‑year‑old male Aboriginal child. In the last 18 months, he has been in a good deal of criminal trouble, regrettably, in my view, of escalating seriousness. He has been the subject of numerous grants of bail, all of which he has allegedly breached by further offending.

He has no prior convictions at this stage, although, as I shall explain shortly, there are a number of matters pending. I shall set out a brief chronology of that prior history before setting out the factual circumstances of the charges upon which he seeks bail from this Court.

From about March 2023, it is alleged that the applicant and his friends committed numerous offences in regional Victoria.

In short, the main type of offending involved breaking into houses, often occupied, stealing car keys and using them to steal cars. Often those cars were driven erratically and quickly. Between 5 June 2023 and 6 July 2024, the applicant was charged with at least the following offences: 12 thefts of motor vehicle, three charges of unlicensed driving, two charges of trespass, one of burglary, one of robbery, one of unlawful assault, one of dishonestly undertaking and the retention of stolen goods, one of criminal damage and one of behaving in a riotous manner.

Outline of current offending

The applicant, as I have said, was on many grants of bail until these matters came to Court, before a regional Children’s Court on 7 August 2024. On that day, as I understand it, he pleaded guilty to a consolidation of many of the above charges, including 12 thefts of motor vehicle, two charges of trespass, and charges of burglary, robbery and theft.

The Magistrate deferred sentence and released…

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 DZ (a pseudonym)

Details

AGLC: Re DZ (a pseudonym) [2024] VSC 687
Case: [2024] VSC 687
Decision Date: 18 October 2024

CaseChat Overview and Summary

The appellant, a 17-year-old Aboriginal Australian with a mild intellectual disability, was facing multiple criminal charges including aggravated intentional exposure of an emergency worker to a safety risk, aggravated reckless exposure of an emergency worker to a safety risk, theft of a motor vehicle, unlicensed driving, and attempted robbery. The case was before the court following an appeal against the refusal of a bail application. The appellant argued that he should be granted bail on the basis that the risk he posed was not unacceptable, there were compelling reasons for bail, and the delay in trial had caused unreasonable adverse impacts.

The legal issues before the court included whether the appellant's risk profile was unacceptable, whether there were compelling reasons for granting bail, and whether the delay in the trial had caused unreasonable adverse impacts. The court had to balance these factors against the seriousness of the offences and the need to protect the community. The appellant argued that he should be granted bail on the basis that he had no prior criminal history, he had a mild intellectual disability, and the delay in the trial had caused him significant hardship. The respondent argued that the appellant's risk profile was unacceptable, there were no compelling reasons for bail, and the delay in the trial had not caused unreasonable adverse impacts.

The court found that the appellant's risk profile was not unacceptable, there were compelling reasons for bail, and the delay in the trial had caused unreasonable adverse impacts. The court noted that the appellant had no prior criminal history and had a mild intellectual disability. The court also noted that the delay in the trial had caused the appellant significant hardship, including separation from his family and community, and a negative impact on his mental health. The court found that the appellant's risk profile was not unacceptable because he had no prior criminal history and had a mild intellectual disability. The court also found that there were compelling reasons for bail because the appellant's separation from his family and community had caused him significant hardship. Finally, the court found that the delay in the trial had caused unreasonable adverse impacts because the appellant had been separated from his family and community for an extended period of time. The court allowed the appeal and granted bail.

Orders