Re JS - [2020] VSC 606

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0227

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by JS

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2020
DATE OF RULING:	18 September 2020
CASE MAY BE CITED AS:	Re JS
MEDIUM NEUTRAL CITATION:	[2020] VSC 606

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CRIMINAL LAW – Bail – Applicant 17 years old – Multiple charges including aggravated burglary, committing indictable offence while on bail and theft – Applicant subject to four sets of bail in respect of multiple charges for like offending during previous 9 months – Whether exceptional circumstances established – Whether applicant an unacceptable risk of re-offending and endangering public safety – Bail Act 1977, ss 3AA, 3B, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Lacy	Dribbin and Brown Criminal Lawyers
For the Respondent	Mr S Payne	Victoria Police

HIS HONOUR:

On 19 August 2020, the applicant was charged by Senior Constable McCooke with two charges of aggravated burglary, one charge of committing an indictable offence (burglary) while on bail, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft of a motor vehicle, two charges of attempted theft from a motor vehicle, and five charges of theft. She was also charged with traffic offences arising from the circumstances in which she was pursued and arrested, including unlicensed driving, dangerous driving, careless driving and failing to stop. Each of those offences were alleged to have been committed by the applicant and her co-offenders between 11pm on 18 August and 1:55 pm on 19 August.

The applicant was born on 14 September 2003, and has just turned 17 years of age. It is alleged that she committed the offences in company with three other co-offenders, namely, James Fernando and Shannon Mondon-Butler, who were each 19 years of age, and the applicant’s younger brother, VD, who was 14 years of age.

The applicant was arrested at 1:55 pm on 19 August. After her arrest, she attempted to asphyxiate herself whilst detained at Parkville Youth Justice Centre. As a result she required urgent medical attention, and she was unable to attend at Dandenong Children’s Court on 20 August. On the following day, 21 August, her application for bail before the Dandenong Children’s Court was refused, on the basis that Youth Justice was not supportive of the applicant being released on bail, and also due to concerns that the applicant posed a risk to the community. Following another assessment by Youth Justice, the applicant made a further application to the Dandenong Children’s Court on 28 August 2020. The magistrate who heard the application was satisfied that exceptional circumstances existed, but refused bail because the applicant constituted an unacceptable risk of reoffending and endangering the community. The matter is currently listed for a contest mention at the Dandenong Children’s Court on 25 September. The applicant now applies to this…

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 JS

Details

AGLC: Re JS [2020] VSC 606
Case: [2020] VSC 606
Decision Date: 18 September 2020

CaseChat Overview and Summary

The case of Re JS involved a 17-year-old applicant who was facing multiple charges including aggravated burglary, committing an indictable offence while on bail, and theft. The applicant had already been subject to four sets of bail conditions in the previous nine months in relation to similar offending. The matter was before the court to determine whether exceptional circumstances existed to justify granting bail and whether the applicant posed an unacceptable risk of re-offending and endangering public safety. The relevant provisions of the Bail Act 1977 were sections 3AA, 3B, 4A, 4D, and 4E.

The primary legal issues before the court were whether the applicant had established exceptional circumstances that would justify granting bail despite the history of re-offending, and whether the applicant posed an unacceptable risk of re-offending and endangering public safety. The court needed to consider the seriousness of the alleged offending, the history of bail breaches, and the impact of the applicant's offending on the community. The court also had to consider the principles of proportionality and justice in determining whether bail should be granted.

The court found that the applicant had not established exceptional circumstances as the history of re-offending and bail breaches demonstrated a disregard for the conditions of bail and the law. The court concluded that the applicant was an unacceptable risk of re-offending and endangering public safety. The seriousness of the alleged offences and the frequency of the breaches indicated that the applicant was unlikely to comply with any conditions of bail. The court emphasised the need to protect the community and the principle that bail should not be granted if it would undermine the administration of justice. Consequently, the court refused the application for bail.

Orders