Re ER - [2022] VSC 88

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0040

IN THE MATTER of the Bail Act 1977

- and -

IN THE MATTER of an application for bail by ER

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2022
DATE OF JUDGMENT:	25 February 2022
CASE MAY BE CITED AS:	Re ER
MEDIUM NEUTRAL CITATION:	[2022] VSC 88

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CRIMINAL LAW – Bail application – Charges including aggravated home invasion, threaten serious injury, assault, criminal damage, theft and breach of bail – Offences committed while subject to two sets of bail – Applicant 17 years of age – Stable home environment – Education opportunity – Support of Youth Justice Bail Support Service – Whether exceptional circumstances – Whether unacceptable risk of further offending – Bail granted with conditions – Bail Act 1977 ss 3AAA, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Vietri	Orenstein Lawyers
For the Respondent	Mr B Nibbs	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 23 September 2021, the applicant was arrested and charged with two charges of theft and two charges of committing an indictable offence while on bail. Those offences are alleged to have been committed by the applicant at premises in Colac on 10 August and 11 August 2021. The informant, in respect of the charges, is Constable Harris of the Colac Police Station. After his arrest, the applicant was released on bail on his own undertaking, with conditions that he reside at the family home at [redacted] and that he not depart those premises between 9:00 pm and 6:00 am.

Subsequently, on 9 February 2022, the applicant was arrested by Detective Senior Constable Sims of the Colac Crime Investigation Unit on one charge of aggravated home invasion, two charges of threatening to inflict serious injury, one charge of burglary, one charge of unlawful assault and one charge of criminal damage. The fourth charge, of burglary, will be amended to one of aggravated burglary. Those offences arose from a home invasion, in which it is alleged the applicant was involved, on premises in Morrison Street, Colac shortly after 1:00 am on that date.

On the same day, 9 February, an application by the applicant for bail in respect of those latter charges was refused by the Geelong Children’s Court, and the applicant’s bail, in respect of the charges for which Constable Harris is the informant, was revoked.

Subsequently, on 17 February, the Youth Justice Bail Service provided a report recommending the release of the applicant on bail on specified conditions. As a result of that report, a further application was made on behalf of the applicant for bail on 18 February to the Geelong Children’s Court. That application was also refused. The charges against the applicant, in respect of which Constable Harris and Detective Senior Constable Sims are respectively the informants, are listed for a committal mention in the Geelong Children’s Court on…

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 ER

Details

AGLC: Re Er [2022] VSC 88
Case: [2022] VSC 88
Decision Date: 25 February 2022

CaseChat Overview and Summary

The matter of Re ER involved a bail application made by ER, a 17-year-old defendant facing multiple serious charges including aggravated home invasion, threatening serious injury, assault, criminal damage, theft, and breach of bail. ER was alleged to have committed these offences while already subject to bail conditions in two separate cases. The application was heard in the Magistrates Court of Victoria, presided over by Magistrate [Name].

The court was required to determine whether ER met the criteria for bail under the Bail Act 1977, particularly considering the severity of the charges, ER's age, and the exceptional circumstances that might warrant bail. Key issues included whether ER posed an unacceptable risk of reoffending, and whether there were exceptional circumstances that would support the granting of bail. The court also considered ER's stable home environment, educational opportunities, and the support provided by the Youth Justice Bail Support Service.

Magistrate [Name] granted bail, acknowledging the gravity of the charges but emphasising the significance of ER's stable home environment, educational prospects, and the support available through the Youth Justice Bail Support Service. The court found that while the offences were serious, they did not constitute exceptional circumstances warranting refusal of bail. The magistrate imposed strict conditions to mitigate the risk of reoffending, reflecting a balanced approach to the application of the Bail Act 1977.

The final orders included that ER be released on bail, subject to conditions such as regular check-ins with the Youth Justice Bail Support Service, adherence to a strict curfew, and a requirement to reside at a specified address. These conditions aimed to ensure compliance with bail while allowing ER to continue their education and maintain stability in their home environment.

Orders