Re FA - [2018] VSC 372

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2018 0173

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by FA

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2018
DATE OF JUDGMENT:	6 July 2018
CASE MAY BE CITED AS:	Re FA
MEDIUM NEUTRAL CITATION:	[2018] VSC 372

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CRIMINAL LAW – Bail – Child aged 16 years – Charges of assisting offender and theft of motor car – Bail refused by Children’s Court – Whether unacceptable risk that applicant would commit further offence, endanger person or fail to answer bail – Conditions capable of rendering risks acceptable – Bail granted – Bail Act 1977, s 3AAA, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Barker	Claudia Grimberg
For the Respondent	Ms J Piggott	Mr John Cain, Solicitor for Public Prosecutions

HIS HONOUR:

The child applicant — whom, for convenience, I shall refer to as ‘FA’ — turned 16 about seven weeks ago. To this point, she has been in custody for some 77 days, and seeks bail from this court.
She is charged with a number of serious offences which allegedly occurred on 21 April 2018 — when she was aged 15 years — including two charges of assisting Eric Victorsen (‘Victorsen’) — aged 19 years — to avoid apprehension[1] (charges 1 and 2) and one charge of theft of a Lexus motor vehicle,[2] valued at $170,000 (charge 3), which had been stolen in the course of an aggravated burglary on 19 April 2018. (She is also charged with possessing[3] and using[4] a drug of dependence, respectively methylamphetamine and cannabis.)
[1]Crimes Act 1958, s 325(1).
[2]Crimes Act 1958, s 74.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 75.

FA was arrested on 21 April 2018, and has been in custody since. On the day of her arrest, a Bail Justice remanded her to appear at the Melbourne Children’s Court on 23 April 2018. No application for bail was then made, and she was remanded for a ‘21-day rollover’ until 14 May 2018. Once more, no application for bail was made on 14 May 2018, and FA was again remanded for a 21-day rollover until 4 June 2018. No application for bail was made on 4 June 2018, and FA was further remanded for a Contest Mention on 25 June 2018.

On 12 June 2018, at the Melbourne Children’s Court, FA made an application for bail, in the course of which a Youth Justice Bail Service Report (‘the Bail Report’), dated 8 June 2018, was filed. The application for bail was adjourned part-heard until 15 June 2018 for further submissions and a decision. On 15 June 2018, the Children’s Court refused bail on findings that there was an unacceptable risk that FA would: ‘fail to appear in answer to…

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 FA

Details

AGLC: Re FA [2018] VSC 372
Case: [2018] VSC 372
Decision Date: 6 July 2018

CaseChat Overview and Summary

The case of Re FA involved a 16-year-old charged with assisting an offender and theft of a motor vehicle. The dispute arose from the refusal of bail by the Children's Court, which the applicant subsequently appealed. The court was tasked with determining whether the applicant posed an unacceptable risk of committing further offences, endangering another person, or failing to comply with bail conditions. Additionally, the court had to consider whether there were conditions that could mitigate these risks to an acceptable level.

The legal issues focused on the application of the Bail Act 1977, specifically sections 3AAA and 4E, which address the considerations for granting bail to a minor. The court had to weigh the seriousness of the charges against the applicant's background, prospects, and the potential for rehabilitation. The primary concern was whether the risks associated with granting bail could be sufficiently managed through appropriate conditions.

The court ultimately determined that while the charges were serious, the applicant’s background and prospects for rehabilitation could be sufficiently managed through stringent bail conditions. The court was satisfied that with proper supervision and adherence to strict conditions, the risks of reoffending, endangering others, or failing to comply with bail could be rendered acceptable. Consequently, the appeal was successful, and bail was granted with conditions designed to mitigate the identified risks.

The final orders of the court included the granting of bail subject to conditions aimed at ensuring the applicant's compliance and reducing the risk of reoffending. The specific conditions imposed were intended to monitor the applicant closely and provide support to prevent further criminal activity.

Orders