Re KP - [2018] VSC 436

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0182

IN THE MATTER of the Bail Act 1977

- and -

IN THE MATTER of an Application for Bail by KP

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JUDGE:	EMERTON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2018
DATE OF JUDGMENT:	7 August 2018 (First revision 9 August 2018)
CASE MAY BE CITED AS:	Re KP
MEDIUM NEUTRAL CITATION:	[2018] VSC 436

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CRIMINAL LAW – Bail – Ten charges including armed robbery and intentionally causing serious injury in circumstances of gross violence – Offences committed while applicant was on a Community Correction Order for two robbery offences and while on a good behaviour bond for three theft offences – Whether the charged offences were Schedule 1 offences or Schedule 2 offences – Operation of ‘uplift clauses’ (sch 1 cl 3, sch 2 cl 1) - Whether compelling reason shown justifying bail – ‘Unacceptable risk’ test applied – Compelling reason not shown – Bail refused – Bail Act 1977 ss 3, 3AAA, 4, sch 1 cl 3, sch 2 cl 1.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Lacy	Giorgianni & Liang Lawyers
For the Respondent	Mr D Porceddu	Office of Public Prosecutions

HER HONOUR:

Introduction

On 6 February 2018, the applicant was arrested and charged with armed robbery, intentionally causing injury, possessing a controlled weapon without lawful excuse, recklessly causing injury, recklessly causing serious injury, intentionally causing serious injury, intentionally causing serious injury in circumstances of gross violence (two counts), and recklessly causing serious injury in circumstances of gross violence (two counts).

The charges arise out of the events alleged to have occurred on 3 February 2018, when the applicant and his co-accused, JT, are alleged to have robbed and stabbed a victim in their vehicle.

At the time of the alleged offending, the applicant was subject to a 12 month Community Correction Order (‘CCO’) imposed on 24 July 2017 in respect of two robberies.

The applicant has been in custody since 6 February 2018. On 27 June 2018, he applied for bail in the Magistrates’ Court of Victoria. The magistrate refused the application for bail on the basis that the applicant had not established exceptional circumstances and was an unacceptable risk of further offending, failure to appear and endangering prosecution witnesses and members of the public.

The charges are currently listed for committal hearing on 28 August 2018.

The co-accused was granted bail in the Children’s Court on 17 April 2018.

The applicant

The applicant is 20 years of age. He was born in Australia of parents who came to Australia from Vietnam. He has two younger sisters. Prior to his arrest and incarceration, he lived with his father and one of his sisters in the family home in the western suburbs of Melbourne. The applicant does not get on with his father. His mother, with whom he does get on, is currently serving a custodial sentence for fraud. When his mother was imprisoned…

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 KP

Details

AGLC: Re KP [2018] VSC 436
Case: [2018] VSC 436
Decision Date: 7 August 2018 (First revision 9 August 2018)

CaseChat Overview and Summary

The matter before the court was an application for bail by the respondent, KP, who faced ten charges, including armed robbery and intentionally causing serious injury in circumstances of gross violence. These offences were alleged to have been committed while KP was on a Community Correction Order for two previous robbery offences and while on a good behaviour bond for three theft offences. The respondent's application for bail was heard in the Magistrates’ Court of Victoria.

The primary legal issues before the court were whether the charged offences constituted Schedule 1 or Schedule 2 offences under the Bail Act 1977 and whether compelling reasons existed to justify bail in light of the 'unacceptable risk' test. The court had to consider the nature and seriousness of the charged offences, the respondent's criminal history, and the potential risk to the community if bail was granted.

In delivering its decision, the court held that the charged offences were Schedule 2 offences due to the significant level of violence involved and the risk to public safety. The court found that KP had a concerning history of offending, including violent behaviour while on community-based orders. Applying the 'unacceptable risk' test, the court concluded that KP had not demonstrated compelling reasons justifying bail. The court found that granting bail would create an unacceptable risk to the community, given the nature of the alleged offences and the respondent's criminal history. Consequently, the application for bail was refused.

The court made orders in line with the Bail Act 1977, specifically sections 3, 3AAA, 4, schedule 1 clause 3, and schedule 2 clause 1, reflecting its determination that KP's charged offences were Schedule 2 offences and that compelling reasons for bail had not been established.

Orders