Re KE

Case [2021] VSC 175 13 April 2021

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2021 0071

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an application for bail by KE

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2021
DATE OF RULING:	13 April 2021
CASE MAY BE CITED AS:	Re KE
MEDIUM NEUTRAL CITATION:	[2021] VSC 175

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CRIMINAL LAW – Bail – Applicant charged with carjacking, aggravated burglary, attempted aggravated burglary, theft of motor vehicle, and committing an indictable offence while on bail – Applicant also on bail in respect of three sets of other charges – Whether exceptional circumstances exist – Whether unacceptable risk – Bail refused – Bail Act 1977 ss 3AAA, 3B, 4AA, 4A, 4D, 4E, Children, Youth and Families Act 2005 s 346.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	WEstjustice
For the Respondent	Mr G Carr	Victoria Police

HIS HONOUR:

The applicant, who is 16 years of age, was arrested on 29 January 2021 on one charge of carjacking, one charge of aggravated burglary, one charge of attempted aggravated burglary, one charge of theft of a motor vehicle, one charge of unlicensed driving and one charge of committing an indictable offence while on bail. Having been refused bail by the Children’s Court, he now applies to this Court for bail.

The Alleged Offending

The offences, that are the subject of those charges, were committed between 28 January and 29 January 2021.

The victim of the first charge, that of carjacking, was an elderly 94 year old man. Shortly after 8:00 am on 29 January, the victim got into his Holden Cruz sedan that was parked in the driveway of his home in Altona North, in order to visit his dying wife who was in palliative care. As he did so, he was approached by two males, one of whom is alleged to have been the applicant. They yelled at the victim and forcibly dragged him out of the vehicle. Having done so, the two offenders, and another male who was standing nearby, got into the vehicle and drove off with it. The victim was left lying on the ground near the entrance to the property. A short time later, he was helped to his feet by a neighbour who came to his assistance. As a result of the incident, the victim received minor injuries, including grazing to the right knee and a bruised hand.

Earlier, between 11:00 pm on the previous evening and 4:00 am that morning, three male offenders, one of whom is alleged to be the applicant, broke into an address in Point Cook. They removed car keys that were on the top of a refrigerator, and then stole a vehicle that was owned by the occupant. Those offences are the subject of charges 2 and 3, aggravated burglary and theft. The vehicle was subsequently located at Altona North after it had been involved in a…

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 KE

Details

AGLC: Re KE [2021] VSC 175
Case: [2021] VSC 175
Decision Date: 13 April 2021

CaseChat Overview and Summary

The applicant, KE, sought bail in a court presided over by Justice Smith. KE was charged with multiple serious offences, including carjacking, aggravated burglary, attempted aggravated burglary, theft of a motor vehicle, and committing an indictable offence while on bail. KE was also currently on bail for three other sets of charges. The central issue before the court was whether exceptional circumstances existed that would warrant the granting of bail, considering the severity and nature of the charges against KE, and whether KE posed an unacceptable risk to the community if released on bail.

The court meticulously examined the nature and seriousness of the charges, KE's criminal history, and the risk factors associated with releasing KE on bail. Justice Smith noted that the offences for which KE was seeking bail involved significant violence and were of a serious nature, indicating a high risk of reoffending. The court also considered KE's previous breaches of bail conditions and the risk posed to the community. Given these factors, the court concluded that there were no exceptional circumstances that would justify granting bail, and that KE posed an unacceptable risk if released.

Based on the assessment of the evidence and the applicable legal principles, Justice Smith found that KE did not meet the criteria for bail. The court held that the severity of the charges, combined with KE's prior history and the risk to the community, warranted the refusal of bail. Consequently, KE's application for bail was dismissed.

Orders