Re JH - [2023] VSC 444

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0095

IN THE MATTER of an application for bail
Between:
JH	Applicant
-and-
VICTORIA POLICE	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2023
DATE OF ORDERS & EX TEMPORE REASONS:	29 May 2023
DATE OF PUBLICATION OF WRITTEN REASONS:	1 August 2023
CASE MAY BE CITED AS:	Re JH
MEDIUM NEUTRAL CITATION:	[2023] VSC 444

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CRIMINAL LAW — Application for bail — Applicant charged with multiple offences, including aggravated burglary (intent to steal/persons present), theft of car, possess weapon, breaching bail conditions — Applicant charged on summons with numerous other offences — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of offending or endangering others — Applicant aged 18 — Aboriginality — Deprived background — Intellectual disability — Mental health afflictions — Presently, no case on aggravated burglary — If convicted, custodial sentence unlikely — Delay — Even if convicted and custodial sentence imposed, period to be spent in custody before hearing likely to exceed any such sentence — Risk of preventative detention — Extensive supports available on bail — Salutary experience of first time in adult custody — Damaged individual — Exceptional circumstances established — Unacceptable risk not established — Bail granted on own undertaking with conditions; Bail Act 1977 (Vic), s 3A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H Lewis	Victoria Legal Aid
For the Respondent	Mr A Austin	Victoria Police, Legal Practice Group

HIS HONOUR:

Overview

On 29 May 2023, I granted an application for bail by JH,[1] and released him on his own undertaking, with conditions.
[1]While the applicant JH is aged 18 and the charges for which he applies for bail are to be heard in the Magistrates’ Court, there is necessarily an interaction between these matters and other charges dealt with, and some still to be dealt with, in the Children’s Court. In those circumstances, and given the prohibition, in s 534 of the Children, Youth and Families Act 2005 (Vic), on publication of reports of proceedings in the Children’s Court containing any particulars likely to lead to the identification of a child or other party to, or witness in, such proceedings, or the particular venue of that court (other than, relevantly) the Koori Court (Criminal Division)), I have described the applicant as JH and, where appropriate, have employed similar means to describe other persons or organisations that might be connected with the Children’s Court aspects of this matter.

I gave ex tempore reasons and indicated to the parties that I did not intend to publish written reasons. While the parties were content with that course at the time, more recently, JH’s solicitor has asked whether I might publish written reasons. I am happy to do so.

What follows is a revised and edited version of my ex tempore reasons, which I have left in the present tense.

Revised/edited reasons

Background

This is an application for…

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 JH

Details

AGLC: Re JH [2023] VSC 444
Case: [2023] VSC 444
Decision Date: 1 August 2023

CaseChat Overview and Summary

The case of Re JH involved an application for bail by the respondent, JH, who was charged with multiple serious offences including aggravated burglary, theft of a car, possession of a weapon, and breaching bail conditions. JH had also been charged on summons with additional offences. The case was heard in the relevant court where the primary issue was whether JH's circumstances were exceptional enough to justify the granting of bail, and if bail was granted, whether it would pose an unacceptable risk of JH offending again or endangering others.

The court examined whether there were exceptional circumstances that warranted bail, considering JH's age, background, and mental health conditions. It was noted that JH had no prior convictions, and if convicted, a custodial sentence was unlikely due to the nature of the charges and the possibility of spending more time in custody before the hearing than any potential sentence. The court also took into account JH's deprived background, intellectual disability, and mental health afflictions. The absence of a case on the aggravated burglary charge and the extensive support available to JH on bail were further considered in the decision-making process.

The court concluded that JH had established exceptional circumstances, and there was no unacceptable risk of offending or endangering others if bail were granted. Therefore, the court granted bail to JH on her own undertaking, subject to specific conditions. The decision was made under the Bail Act 1977 (Vic), section 3A, which allows for the granting of bail in exceptional circumstances. The court's ruling acknowledged JH's disadvantaged background and the potential salutary effect of her first experience in adult custody, along with the availability of extensive support mechanisms to mitigate any risk of reoffending.

Orders