Re Ha - [2021] VSC 96

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0025

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an Application for Bail by HA

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2021
DATE OF JUDGMENT:	26 February 2021
DATE OF REASONS	4 March 2021
CASE MAY BE CITED AS:	Re HA
MEDIUM NEUTRAL CITATION:	[2021] VSC 96

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CRIMINAL LAW – Bail – 15 year old, intellectually disabled Aboriginal offender – Wide array of alleged offending – Successive grants of bail on strict conditions – Disregard for strictures of bail – Absconding from care and in breach of curfew condition – Youth Justice still supportive of bail – Attempts to reunite applicant with father – Same conditions of housing and supervision proposed as existed previously – Custodial sentence unlikely – Exceptional circumstances established – Unacceptable risk made out by respondent – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Kurani Legal Practice
For the Respondent	Ms A Buzo	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

The applicant, a 15 year old child of indigenous heritage, applied for bail in respect of a large number of charges arising from four separate bouts of alleged criminality laid by four different informants. I will turn to the charges shortly.

It was agreed between the parties that because the applicant was accused of Schedule 2 offences under the Bail Act 1977 (‘the Act’) committed while he was on bail for a Schedule 2 offence, bail was required to be refused unless the applicant satisfied the Court that exceptional circumstances existed that justified the grant of bail. If the applicant was able to overcome the hurdle constituted by that first step in the bail process, I would be required to refuse bail if satisfied by the respondent that there would be an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any person or commit an offence while on bail.

Having heard the application, I was satisfied that the applicant had established the existence of exceptional circumstances that would justify the grant of bail. However, I was further satisfied of the existence of an unacceptable risk. I therefore refused bail. I indicated at the time that I would publish detailed reasons for my decision in future. These are those reasons.

Procedural background

Between July and December 2020, the applicant was charged and released on bail on three succeeding occasions in respect of the first three groups of charges. When bailed on 17 July 2020, and on the last occasion on 29 December 2020, the conditions included a curfew between the hours of 8.00pm and 7.00am. On 8 January 2021, the applicant was arrested and charged with the final group of charges laid by the informant Constable Kyle Spiliopoulos. Bail was refused in the…

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 Ha

Details

AGLC: Re Ha [2021] VSC 96
Case: [2021] VSC 96
Decision Date: 26 February 2021

CaseChat Overview and Summary

The case of Re Ha involved a 15-year-old intellectually disabled Aboriginal offender who faced a wide array of alleged criminal offences. The matter was heard in the Supreme Court of New South Wales, where the primary concern was the granting of bail to the young offender, despite a history of disregarding bail conditions, absconding from care, and breaching curfew conditions. The court was tasked with balancing the youth's rights and the community's need for protection.

The legal issues before the court were whether the applicant's exceptional circumstances justified the granting of bail, despite the unacceptable risk posed to the community, and whether the applicant had shown a sufficient likelihood of abiding by bail conditions. The court had to consider the provisions of the Bail Act 1977, including sections 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D, and 4E, in reaching its decision.

The court ultimately decided that the unacceptable risk made out by the respondent outweighed the exceptional circumstances presented by the applicant. The youth justice system's previous support for bail and attempts to reunite the applicant with his father were not enough to counter the risk posed to the community. The court found that the same conditions of housing and supervision previously proposed were still appropriate and that a custodial sentence was unlikely. Therefore, the application for bail was refused.

The court's decision was based on a careful consideration of the relevant statutory provisions and the specific circumstances of the case. The Supreme Court of New South Wales exercised its discretion under the Bail Act 1977 to refuse bail to the applicant, taking into account the risk to the community and the applicant's history of disregarding bail conditions. The final orders of the court were that the applicant's bail application be refused, and the applicant remain in custody pending the outcome of the criminal proceedings against him.

Orders