Re IH - [2020] VSC 325

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0107

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by IH

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2020
DATE OF JUDGMENT:	27 May 2020
DATE OF REASONS:	3 June 2020
CASE MAY BE CITED AS:	Re IH
MEDIUM NEUTRAL CITATION:	[2020] VSC 325

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CRIMINAL LAW – Bail – 14 year old Aboriginal offender – Armed robbery, aggravated home invasion and other serious offending – Whilst on bail and subject to youth supervision orders – Absconding from residential address and contravention of curfew – Youth Justice still supportive – Family reunification order in place – Supervised accommodation and supports available – Whether period on remand would exceed likely sentence – Asserted change in attitude by the applicant – COVID-19 considerations – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Anderson	Camerons Lawyers
For the Defendant	Mr S Payne	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

The applicant applied for bail in respect of a large number of charges he faces including aggravated home invasion and armed robbery. Because of the facts of this case, he was in the position of having to prove the existence of exceptional circumstances before I could bail him. In spite of the fact that the applicant is only 14 years old and of Aboriginal heritage, and the resultant powerful considerations in favour of a grant of bail, I considered that he had failed to discharge that onus. Furthermore, I indicated that I would have been satisfied of the existence of an unacceptable risk under s 4E of the Bail Act 1977 (‘the Act’) had the first step of the bail process been determined in favour of the applicant. I therefore refused bail. I indicated at the time that I would publish my reasons at a later time. These are those reasons.

Procedural history

The applicant has been in custody since his arrest on 3 March 2020. A bail application was held in the Children’s Court on 30 April 2020. Bail was refused as the applicant had failed to establish exceptional circumstances, and it was further found that he would pose an unacceptable risk of re-offending and endangering the safety of the public.

The matter is next listed for mention in the Children’s Court on 1 June 2020.

Background to the offending

On 16 December 2019, the applicant was placed on a youth supervision order (YSO) for ten months on charges including unlawful assault, theft of a motor vehicle, reckless conduct endangering life, failing to stop a vehicle on police directions, dangerous driving, and committing an indictable offence whilst on bail.[1] He was placed on a second YSO for six months on 7 February 2020 on charges including…

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 IH

Details

AGLC: Re IH [2020] VSC 325
Case: [2020] VSC 325
Decision Date: 27 May 2020

CaseChat Overview and Summary

The case of Re IH involved a 14-year-old Aboriginal male who was charged with multiple serious offences, including armed robbery, aggravated home invasion, and other related crimes. He was on bail and subject to youth supervision orders at the time of the latest charges. The dispute arose when the applicant was alleged to have absconded from his residential address and contravened his curfew. The matter was heard in the Children's Court of Victoria, which had to determine whether the applicant should be granted bail.

The legal issues before the court centred on whether the period the applicant would spend on remand would exceed the likely sentence if convicted, as well as the risk of the applicant reoffending while on bail. The court also considered the applicant's asserted change in attitude, the support from the Youth Justice system, and the availability of supervised accommodation and supports. Additionally, the court took into account the exceptional circumstances posed by the COVID-19 pandemic and its impact on the case.

The court found that, despite the Youth Justice system's support for the applicant and the presence of a family reunification order, the risk of reoffending and the potential for the period on remand to exceed the likely sentence were significant. The court was not convinced that the applicant had genuinely changed his attitude, and it determined that the exceptional circumstances of COVID-19 did not warrant a departure from the usual bail considerations. Ultimately, the court refused the applicant's application for bail, finding that he posed an unacceptable risk to the community.

The final orders of the court were that the applicant remain in custody pending the determination of his criminal charges. The court also directed that the applicant continue to receive support through the Youth Justice system and that his case be reviewed periodically to assess any changes in circumstances.

Orders