Re kN (No 2) - [2020] VSC 490

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0172

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
DATES OF HEARING:	3 and 5 August 2020
DATE OF JUDGMENT:	6 August 2020
CASE MAY BE CITED AS:	Re KN (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 490

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CRIMINAL LAW – Application for bail – 15 year old child applicant – Robbery, attempted robbery and related offences – Alleged offending occurred while on bail and subject to youth supervision order - Previous grant of bail to applicant on similar charges by Supreme Court – Failure to abide by conditions – Failure to fully engage with Youth Justice – Still assessed as suitable by Youth Justice for supervised bail – Family supports – Importance of education – Onerous conditions of remand due to COVID-19 pandemic – Positive cases of COVID-19 within youth justice centre but not acquired within the centre - Likely sentence upon finding of guilt - Whether exceptional circumstances exist justifying bail – Whether the applicant an unacceptable risk – Exceptional circumstances made out – Unacceptable risk established by respondent – Bail refused - Bail Act 1977 ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Jeronimus	Victoria Legal Aid
For the Respondent	Mr S Payne	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 charges of robbery, attempted robbery, assault, committing an indictable offence whilst on bail, and breaching a youth supervision order, the offences alleged to have been committed on 21 July 2020 (Informant Martin charges). He has been in custody since his arrest on that date. He made an application for bail in the Children’s Court on 22 July 2020. Bail was refused because the learned magistrate was not satisfied of the existence of exceptional circumstances in support of the grant of bail, and also because she considered there was an unacceptable risk the applicant would reoffend and endanger the safety of the public.

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 and subject to a sentence for a Schedule 2 offence.

Procedural history and background to the present application

Although the applicant has only been finally dealt with by a court for criminal charges on one occasion on 26 June 2020, since late 2019, he has had a great deal of contact with police and the criminal justice system, and has been the subject of a large number of grants of bail.

Addressing the procedural history briefly, the applicant was charged with three successive groups of robbery…

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 (No 2)

Details

AGLC: Re KN (No 2) [2020] VSC 490
Case: [2020] VSC 490
Decision Date: 6 August 2020

CaseChat Overview and Summary

The case of Re kN (No 2) involved a 15-year-old child applicant, who was applying for bail from the Supreme Court of Queensland. The applicant was facing charges of robbery, attempted robbery and related offences. The alleged offending occurred while the applicant was on bail and subject to a youth supervision order. The Supreme Court was required to determine whether the exceptional circumstances existed to justify bail and whether the applicant was an unacceptable risk.

The legal issues before the court were whether exceptional circumstances existed to justify the grant of bail, and whether the applicant was an unacceptable risk. The court was required to consider the previous grant of bail by the Supreme Court on similar charges, the failure to abide by conditions, the failure to fully engage with Youth Justice, and the importance of education. The court was also required to consider the onerous conditions of remand due to the COVID-19 pandemic and the positive cases of COVID-19 within the youth justice centre. The court had to balance these considerations against the likely sentence upon finding of guilt.

The court found that the exceptional circumstances existed to justify bail, including the applicant's age, the importance of education, and the onerous conditions of remand due to the COVID-19 pandemic. The court also found that the applicant was an unacceptable risk due to the failure to abide by conditions, the failure to fully engage with Youth Justice, and the likelihood of reoffending. The court considered the submissions of the applicant's legal representative and the evidence of the Youth Justice officer. The court refused the applicant's application for bail.

The Supreme Court of Queensland refused the applicant's application for bail, citing exceptional circumstances and the unacceptable risk posed by the applicant. The court found that the applicant's age, the importance of education, and the onerous conditions of remand due to the COVID-19 pandemic were exceptional circumstances that justified bail. However, the court found that the applicant was an unacceptable risk due to the failure to abide by conditions, the failure to fully engage with Youth Justice, and the likelihood of reoffending. The court noted that the applicant had previously been granted bail on similar charges but had failed to abide by the conditions, which was a significant factor in the court's decision. The court also noted the positive cases of COVID-19 within the youth justice centre, but found that these cases were not acquired within the centre.

Orders