Re Firebrace - [2023] VSC 137

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2023 0044

IN THE MATTER OF the Bail Act 1977

and

IN THE MATTER of an application for bail by SHONA LOU LOU FIREBRACE

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2023
DATE OF ORDERS:	23 March 2023
DATE OF RULING:	24 March 2023
CASE MAY BE CITED AS:	Re Firebrace
MEDIUM NEUTRAL CITATION:	[2023] VSC 137

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CRIMINAL LAW – Bail application – Applicant charged with aggravated burglary, dangerous driving – Whether exceptional circumstances exist – Whether unacceptable risk – Applicant’s disadvantaged and dysfunctional upbringing – Availability of suitable programs while on bail – Delay – Applicant of Aboriginal heritage – Bail granted with conditions – Bail Act 1977 ss 3A, 3AAA, 4A, 4AA, 4E, 5.

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APPEARANCES:	Solicitors
For the Applicant	Ms S Mansfield of Law and Advocacy Centre for Women
For the Respondent	Ms A Buzo of Victoria Police

HER HONOUR:

This is an application for bail by Shona Lou Lou Firebrace (‘the applicant’).

The applicant is a 25-year-old Aboriginal woman who seeks bail on the following twelve charges filed by informant Senior Constable Jackson Brice:

(a) Aggravated burglary;

(b) Theft (two charges);

(c) Theft of motor vehicle;

(d) Obtain property by deception (two charges);

(e) Drive in a manner dangerous whilst pursued by police;

(f) Handle stolen goods;

(g) Commit an indictable offence whilst on bail (two charges);

(h) Contravene a conduct condition of bail; and

(i) Reckless conduct endanger serious injury.[1]

[1]Affidavit in Response to Application for Bail filed 21 March 2023, Exhibit ‘NW-1’.

This matter will be referred to as the ‘remand matter’. It is next listed on 4 April 2023 at the Melbourne Magistrates’ Court for a plea of guilty.

The applicant has been remanded in custody since 22 February 2023 when she was arrested for the remand matter. She applied for bail on 23 February 2023 at the Mildura Magistrates’ Court. The application was refused on the basis that the applicant failed to show exceptional circumstances, and there was an unacceptable risk of her committing an offence while on bail, endangering the safety or welfare of any person and failing to surrender into custody.[2] A further application for bail was made on 10 March 2023 at the Mildura Magistrates’ Court, which was refused on the same basis.[3]
[2]Affidavit in Support of an Application for Bail filed 15 March 2023, Exhibit ‘SM-2’.
[3]Affidavit in Support of an Application for Bail filed 15 March 2023, Exhibit ‘SM-3’.

In addition to the remand matter, the applicant is also on bail for eight further matters:

Senior Constable Emily Redmond (a)

(i) Burglary;

(ii) Trespass; and

(iii) Theft.

Detective Senior Constable Daniel Vakulcyzk(b)

(iv) Obtain financial advantage by deception; and

(v) Handle stolen goods.

Constable Kyle Sellers(c)

(vi) Burglary; and

(vii) Theft.

Corrections Victoria (d)

(viii) Contravene Community Corrections Order (CCO) arising from failing to attend supervision appointments.

Senior Constable Michael Gsell(e)

(ix) Handle stolen…

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 Firebrace

Details

AGLC: Re Firebrace [2023] VSC 137
Case: [2023] VSC 137
Decision Date: 24 March 2023

CaseChat Overview and Summary

The case of Re Firebrace involved the applicant, who was charged with aggravated burglary and dangerous driving. The applicant applied for bail under the Bail Act 1977. The primary legal issues the court had to address were whether exceptional circumstances existed that warranted the grant of bail, and whether the applicant posed an unacceptable risk to the community. Additionally, the court had to consider the applicant's disadvantaged and dysfunctional upbringing, the availability of suitable programs while on bail, the impact of delay, and the applicant's Aboriginal heritage.

The court examined the applicant's background, including their disadvantaged and dysfunctional upbringing, which suggested potential rehabilitation opportunities. The availability of suitable programs while on bail was also a significant factor. The court acknowledged the delay in the proceedings but determined that it did not constitute a bar to bail. Furthermore, the applicant's Aboriginal heritage was considered, highlighting the importance of cultural connections and community ties. Based on these factors, the court concluded that exceptional circumstances existed and that the risk of reoffending was not unacceptable. The court granted bail with specific conditions to ensure the applicant's compliance and to mitigate any potential risks.

The court's reasoning was grounded in a thorough analysis of the statutory provisions under the Bail Act 1977, particularly sections 3A, 3AAA, 4A, 4AA, 4E, and 5. The court found that the applicant's background and the availability of suitable programs while on bail were compelling factors in favour of granting bail. The court's decision was balanced, taking into account the need to protect the community while also recognising the applicant's potential for rehabilitation.

The final orders included specific bail conditions to ensure the applicant's compliance and to mitigate any potential risks. These conditions were tailored to the applicant's circumstances, reflecting the court's detailed consideration of the case. The court's decision demonstrates a nuanced approach to bail applications, particularly in cases involving individuals with complex backgrounds and cultural considerations.

Orders