Re Kuol - [2021] VSC 598

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0228

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by KUOL KUOL

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2021
DATE OF JUDGMENT:	3 September 2021
DATE OF REVISED REASONS:	17 September 2021
CASE MAY BE CITED AS:	Re Kuol
MEDIUM NEUTRAL CITATION:	[2021] VSC 598

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CRIMINAL LAW — Application for bail — Charges of attempted robbery, attempted theft, resist police, committing an indictable offence whilst on bail, contravening a conduct condition of bail and property damage — Likely that pre-sentence detention would exceed any custodial sentence imposed — No prior criminal history — Appropriateness of proposed bail address — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA — Cases cited: Re Whiteside [1999] VSC 413; Re KE [2021] VSC 175; Roberts v The Queen [2021] VSCA 28.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr James Mitchell	Michael J. Gleeson & Associates
For the Respondent	Mr Peter Murphy	Victoria Police

HIS HONOUR:

This is an application for bail by Kuol Kuol (the ‘applicant’). The applicant is 23 years of age and has no criminal history. He has been on remand since 28 August 2021, a period of six days as at the day of this application, having been charged by the informant Constable Jacob Kitching with attempted robbery,[1] attempted theft,[2] resisting arrest,[3] committing an indictable offence whilst on bail,[4] contravening a conduct condition of bail[5] and property damage[6] (‘the informant Kitching matter’). The charges relate to events alleged to have occurred in the early hours of that same morning. The applicant’s remand on these charges represents his first time in custody.
[1]Contrary to s 321M of the Crimes Act 1958 (Vic).
[2]Contrary to s 321M of the Crimes Act 1958 (Vic).
[3]Contrary to s 31(1)(b) of the Crimes Act 1958 (Vic).
[4]Contrary to s 30B of the Bail Act 1977 (Vic).
[5]Contrary to s 30A(1) of the Bail Act 1977 (Vic).
[6]Contrary to s 9(1)(c) of the Summary Offences Act 1966 (Vic).

The applicant was refused bail in the Magistrates’ Court on 28 August 2021, the same day as his arrest. The basis for the refusal was that the applicant failed to show exceptional circumstances and, if granted bail, was considered to be an unacceptable risk of committing an offence or endangering the safety and welfare of any person. As I have noted in other decisions, the issue of risk does not need to be considered in circumstances where an applicant has not discharged the onus of establishing either exceptional circumstances or a compelling reason justifying the grant of bail.

On 30 August 2021, the applicant filed an application for bail in this Court. The matter is next listed for mention in the Sunshine Magistrates’ Court on…

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 Kuol

Details

AGLC: Re Kuol [2021] VSC 598
Case: [2021] VSC 598
Decision Date: 3 September 2021

CaseChat Overview and Summary

In the County Court of Victoria, the matter of Re Kuol was heard. The applicant, Kuol, is facing multiple charges including attempted robbery, attempted theft, resisting police, committing an indictable offence while on bail, contravening a conduct condition of bail, and property damage. The central issue before the court was whether Kuol was eligible for bail, considering the nature and seriousness of the charges, as well as the risk of pre-sentence detention exceeding any potential custodial sentence.

The court examined several legal factors pertinent to the bail application. It considered the likelihood that pre-sentence detention would exceed any custodial sentence, Kuol’s lack of prior criminal history, and the appropriateness of the proposed bail address. The court also assessed whether exceptional circumstances were present and whether there was an unacceptable risk that Kuol would fail to comply with bail conditions or reoffend. The decision hinged on whether the exceptional circumstances sufficiently mitigated the risk factors.

In granting bail, the court found that the exceptional circumstances established by Kuol were compelling. It noted that the risk of pre-sentence detention exceeding any custodial sentence was significant and that Kuol had no prior criminal history. The proposed bail address was deemed suitable, and the risk of reoffending or breaching bail conditions was not deemed unacceptable. Consequently, the court concluded that bail was appropriate and ordered it with specified conditions.

The court’s final orders included that Kuol be granted bail subject to conditions such as residing at the approved address, reporting to a designated police station, and adhering to a curfew. These conditions were designed to ensure compliance and mitigate any risk of reoffending or breaching bail terms.

Orders