Re LJ - [2019] VSC 765

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0248

IN THE MATTER of the Bail Act 1977 (Vic)
- and -
IN THE MATTER of an Application for Bail by LJ

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2019
DATE OF JUDGMENT:	22 November 2019
CASE MAY BE CITED AS:	Re LJ
MEDIUM NEUTRAL CITATION:	[2019] VSC 765

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CRIMINAL LAW — Bail — Application for bail — 12-year-old Indigenous applicant — Applicant charged with Schedule 2 offence whilst on bail for Schedule 2 offence —Application unopposed — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Gillihan	Victoria Aboriginal Legal Service
For the Respondent	Mr S Payne	Victoria Police

HIS HONOUR:

This is an application for bail by LJ, who is a 12-year-old Aboriginal child. He is currently charged with affray, committing an indictable offence while on bail, unlawful assault and possessing a controlled weapon.

These offences are alleged to have occurred on 12 November 2019 in Robinvale, when the applicant armed with a knife and covering his face with a mask and in the company of three others attended the house of another person and yelled out for him to come outside to fight.

The applicant was arrested the following day at which time he was found to have a small silver knife in his pocket. Upon being questioned by police, he admitted attending the premises.

Procedural history

The applicant has been in custody since his arrest on 13 November 2019. On 15 November 2019, he applied for bail before the Mildura Children's Court. That application was refused on the basis that he was an unacceptable risk of committing an offence whilst on bail and endangering the safety of another person.

The presiding magistrate remanded him to appear at the Mildura Children's Court on 28 November 2019. He is presently at Parkville Youth Justice Centre. As at today's date, he has spent some nine days on remand.

At the time of the alleged offending, he was on bail for three outstanding matters alleging more serious offences, including serious violence offences.

The first matter, where the informant is Detective Senior Constable Carter, involves charges of attempted armed robbery (two counts), robbery, intentionally causing serious injury in circumstances of gross violence, and intentionally causing injury (the ‘Carter matter’). Those offences alleged to have occurred on 28 July and 2 September 2019.

The second matter, where the informant is Leading Senior Constable Fincher, relates to charges of making threats to inflict serious injury, assault with a weapon, unlawful assault and committing an indictable offence while on bail, allegedly committed on 9 September 2019.

The third matter, where the informant is Constable Wu, involves charges of theft, unlawful assault, affray, common law assault, assault in company and committing an…

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 LJ

Details

AGLC: Re LJ [2019] VSC 765
Case: [2019] VSC 765
Decision Date: 22 November 2019

CaseChat Overview and Summary

In the matter of Re LJ, the respondent, a twelve-year-old Indigenous child, applied for bail in the Children's Court of Victoria. The applicant faced charges relating to a Schedule 2 offence, for which she was already on bail. The application for bail was unopposed, and the court was required to determine whether bail should be granted under the Bail Act 1977 (Vic), considering the exceptional circumstances and the ability to mitigate risk.

The court's task was to weigh the statutory considerations outlined in the Bail Act, particularly sections 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D, and 4E. These provisions require the court to consider the risk of re-offending and the risk to the community, while also taking into account the exceptional circumstances of the applicant, including their age, background, and the potential impact of detention. The court needed to determine whether the risk could be sufficiently mitigated to allow for bail and whether exceptional circumstances warranted a departure from the general presumption against bail for serious indictable offences.

The court found that exceptional circumstances were present, primarily due to the applicant's age and background. The court was satisfied that the risk to the community could be mitigated to an acceptable level through appropriate bail conditions. The court noted the importance of providing the applicant with the opportunity to continue her education and maintain her connections with family and community. After considering all relevant factors, the court granted bail with conditions, emphasising the need for strict adherence to the bail terms to ensure the safety of the community and the welfare of the applicant.

The final orders of the court included specific bail conditions designed to manage the risk while supporting the applicant's ongoing education and family ties. The court also directed that the applicant be subject to regular review to ensure compliance with the bail conditions and to reassess the risk as necessary.

Orders