Re LD - [2019] VSC 457

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0147

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by LD

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2019
DATE OF JUDGMENT:	11 July 2019
CASE MAY BE CITED AS:	Re LD
MEDIUM NEUTRAL CITATION:	[2019] VSC 457

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CRIMINAL LAW – Bail – Child aged 16 years – Alleged commission of Schedule 2 offences when applicant already on bail for Schedule 2 offences – Charges include aggravated burglary and committing an indictable offence whilst on bail – Bail refused by Children’s Court – Whether exceptional circumstances justifying bail – Whether relevantly an unacceptable risk – Whether conditions capable of rendering risks acceptable – Bail granted on strict conditions – Bail Act 1977, ss 1B, 3AAA, 3A, 3B, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Garner	Victoria Legal Aid
For the Respondent	Mr P McKimmie	Victoria Police

HIS HONOUR:

An application for bail

‘LD’, a child aged 16 years,[1] applies to this Court for bail.
[1]He was born in November 2002.

The applicant has been in custody since 27 June 2019, when a magistrate in the Latrobe Valley Children’s Court refused him bail on a number of offences, and also revoked two previous grants of bail. He presently is in custody at the Parkville Youth Justice Precinct (‘PYJP’), and is due back before the Latrobe Valley Children’s Court on 19 July 2019.

LD was arrested by Detective Senior Constable John Park on 27 June 2019 and charged (among others) with aggravated burglary and committing indictable offences whilst on bail. At that time, LD was already on bail for aggravated burglary and committing an indictable offence whilst on bail, both of which are Schedule 2 offences for the purposes of the Bail Act 1977 (‘the Act’). The consequence of this is that, by virtue of s 4AA(2)(c) of the Act, a court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. Indeed, it is common ground for the purposes of the present application that this Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.

As I have said, LD was arrested by Detective Park on 27 June 2019. He was charged with burglary[2] (one charge – charge 1); aggravated burglary[3] (one charge – charge 4); theft[4] (two charges – charges 2 and 5); theft of a motor car (one charge – charge 6); committing an indictable offence whilst on bail[5] (two charges – charges 3 and 8); and unlicensed driving[6] (one charge – charge 7). At the time, LD was subject to two different grants of bail, arising from charges laid on 15 March 2019 and 18 April 2019.
[2]Crimes Act 1958, s 76(1).
[3]Crimes Act 1958, s 77(1).
[4]Crimes Act 1958, s 74(1).
[5]Bail Act 1977

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 LD

Details

AGLC: Re LD [2019] VSC 457
Case: [2019] VSC 457
Decision Date: 11 July 2019

CaseChat Overview and Summary

A young person, referred to as LD, appealed against the refusal of bail by the Children’s Court. LD, who was 16 years old at the time of the alleged offences, had already been on bail for other Schedule 2 offences when charged with aggravated burglary and committing an indictable offence while on bail. The Children’s Court found that the risk of re-offending was unacceptable and refused bail. LD sought judicial review of that decision.

The central legal issues were whether exceptional circumstances existed to justify granting bail and whether the risk of re-offending by LD was unacceptable. The court also had to determine whether any conditions could render the risks associated with bail acceptable. These issues required the court to consider the statutory provisions and guidelines under the Bail Act 1977, including sections 1B, 3AAA, 3A, 3B, 4A, and 4E.

The court examined the statutory framework and found that the Children’s Court had correctly applied the principles of the Bail Act. The court considered the nature and seriousness of the new charges, the likelihood of re-offending, and the potential impact on the community. The court concluded that the risk of re-offending was indeed unacceptable, but it also found that strict bail conditions could sufficiently mitigate the risks. Consequently, the court granted bail to LD on strict conditions.

The court ordered that LD be released on bail subject to strict conditions, including residence restrictions, regular reporting to a bail supervisor, and curfew provisions. These conditions were designed to ensure LD's compliance and to protect the community from potential harm.

Orders