Re kN - [2020] VSC 35

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0018

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by KN

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	14 February 2020
CASE MAY BE CITED AS:	Re KN
MEDIUM NEUTRAL CITATION:	[2020] VSC 35

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CRIMINAL LAW – Application for bail – 15 year old child applicant – Three successive robbery-related offences with co-offenders – Succeeding offences in breach of bail – Whether exceptional circumstances exist justifying bail – Whether the applicant is an unacceptable risk – No prior convictions – Good history at school – Prospects of resuming education – Good family support – Support from Youth Justice - Likely sentence – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Vietri	Victoria Legal Aid
For the Respondent	Mr G Carr	Legal and Prosecutions Specialists Branch, Victoria Police

HIS HONOUR:

Introduction

The applicant is a 15 year old child. He applies for bail in respect of three sets of offences alleged to have occurred between 16 November 2019 and 31 January 2020, as follows:

(a) Informant Bolitho (offending date 16 November 2019, charged on 9 December 2019)(‘the Bolitho charge’)

Robbery[1]
[1]Crimes Act 1958, s 75(1) (‘Crimes Act’).

(b) Informant Macdonald (offending date 22 December 2019, charged on 14 January 2020) (‘the Macdonald charges’)

Robbery;

Committing an indictable offence while on bail

(c) Informant Munro (offending and charge date 31 January 2020) (‘the Munro charges’)

Attempted robbery;

Committing an indictable offence while on bail (two charges)

Affray; and

Unlawful assault

It is common ground between the parties that bail must be refused unless the applicant can satisfy the court that exceptional circumstances exist that justify the grant of bail. That is because the applicant is accused of committing Schedule 2 offences while on bail for Schedule 2 offences.

Procedural history

Addressing the procedural history briefly, the applicant was charged and released on police bail in respect of the Bolitho charge on 9 December 2019. On 14 January 2020, while on bail, he was charged with the Macdonald charges. He was remanded overnight in that matter and granted bail the following day, on 15 January 2020, in the Dandenong Children’s Court. On 31 January 2020, the applicant was charged and remanded in respect of further alleged offending (the Munro charges). An application for bail in that matter was refused in the Dandenong Children’s Court on 3 February 2020, on the basis that the applicant was an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person and failing to surrender in accordance with conditions of bail. In addition, that same day, bail was revoked in relation to the outstanding matters of Bolitho and Macdonald.

The law

Section 1B of 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 kN

Details

AGLC: Re kN [2020] VSC 35
Case: [2020] VSC 35
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case before the court involved a 15-year-old applicant seeking bail in relation to three robbery-related offences committed in the company of co-offenders. The offences occurred while the applicant was on bail for a previous robbery offence, thereby breaching the conditions of that bail. The primary issues for the court were whether exceptional circumstances existed to justify the granting of bail and whether the applicant posed an unacceptable risk to the community.

The court considered various factors in its determination. Notably, the applicant had no prior convictions and exhibited a positive history at school, with prospects of resuming their education. The applicant also had the support of their family and Youth Justice services. The court also considered the likely sentence the applicant would face if convicted. In light of these factors, the court found that exceptional circumstances did exist, and the applicant did not represent an unacceptable risk to the community. Consequently, the court granted bail with specified conditions.

The court's decision was based on the unique circumstances of the case, including the applicant's age, lack of criminal history, and the support available from family and Youth Justice services. The court balanced these factors against the seriousness of the offences and the breach of bail conditions. The final orders included the applicant being granted bail subject to conditions designed to ensure their appearance in court and to prevent further offending.

Orders