Re GG - [2021] VSC 12

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0004

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by GG

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 January 2021
DATE OF JUDGMENT:	22 January 2021
CASE MAY BE CITED AS:	Re GG
MEDIUM NEUTRAL CITATION:	[2021] VSC 12

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CRIMINAL LAW – Application for Bail – 16-year-old Aboriginal applicant diagnosed with mental health issues – Armed robbery and other Schedule 2 offences while on bail for Schedule 2 offence – Exceptional circumstances established – Whether unacceptable risk – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	A Halphen	Emma Turnbull Lawyers
For the Respondent	N Watt	Legal Services Department, Victoria Police

HER HONOUR:

This is an application for bail by GG (‘the applicant’), a 16-year-old Aboriginal child with diagnosed mental health issues. He was aged between 14 and 15 at the time of the alleged conduct the subject of this application.

The applicant has been in custody since 31 December 2020, when bail was revoked in the Melbourne Children’s Court in respect of three sets of charges.

First, the applicant is charged by Detective Senior Constable Mitchell Hardisty with five offences relating to an attempted robbery and assaults occurring between July 2019 and 20 August 2019. He was charged on 5 December 2019 and granted police bail. That matter has resolved with the applicant indicating an intention to plead guilty to the offences of armed robbery and assault in company.

Second, he is charged by Senior Constable Emily Casey with robbery and committing an indictable offence whilst on bail on 28 September 2019. He was charged on 23 January 2020 and granted bail in the Melbourne Children’s Court on the same day. That matter has also resolved and the applicant intends to enter a plea of guilty to both charges.

Third, he is charged by Detective Senior Constable Nicole Duffy with false imprisonment, kidnapping, armed robbery, intentionally causing injury, assault in company, possessing a drug of dependence (cannabis), committing an indictable offence whilst on bail and harassing a witness. All of the charges brought by informant Duffy, save for the drug possession charge, relate to events alleged to have occurred on 7 March 2020. The applicant was charged the following day and later granted Youth Justice supervised bail in the Melbourne Children’s Court. At this stage, those charges remain contested.

Prior to his remand, the applicant’s conditions of bail included that he reside with his mother and two siblings at an address in Sunshine West and adhere to a curfew between 9:00pm and 6:00am. Police allege that on seven occasions between 15 and 29 December 2020, the applicant failed to abide by those conditions.[1] As a result, an application to revoke bail in all three matters was successfully brought by police on 31 December 2020. As I have said, the applicant has remained in custody 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 GG

Details

AGLC: Re GG [2021] VSC 12
Case: [2021] VSC 12
Decision Date: 22 January 2021

CaseChat Overview and Summary

The case of Re GG involved an application for bail by a 16-year-old Aboriginal applicant who had been charged with armed robbery and other serious offences. The applicant was already on bail for a separate Schedule 2 offence at the time of the new charges. The matter was heard in the Magistrates’ Court of Victoria. The primary issue before the court was whether the exceptional circumstances, including the applicant’s mental health issues, justified the granting of bail despite the seriousness of the new offences.

The court considered the factors outlined in s 46A of the Sentencing Act 1991 (Vic), which requires the court to balance the seriousness of the offence against the risk to the community. The court assessed the risk to the community posed by the applicant, taking into account the exceptional circumstances. It examined the applicant’s mental health diagnosis, their history of compliance with bail conditions, and the likelihood of reoffending. The court found that, while the offences were serious, the exceptional circumstances, including the applicant’s mental health issues, did not establish an unacceptable risk to the community. The court concluded that bail could be granted with appropriate conditions.

The court granted bail with a number of conditions designed to mitigate any risk to the community, including electronic monitoring, regular reporting to a bail supervisor, and restrictions on the applicant’s movements. The court emphasised the importance of the exceptional circumstances in reaching its decision and stressed the need for strict compliance with the bail conditions.

Orders