Re LT - [2019] VSC 143

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0048

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by LT

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 MARCH 2019
DATE OF RULING:	6 MARCH 2019
CASE MAY BE CITED AS:	APPLICATION FOR BAIL BY LT
MEDIUM NEUTRAL CITATION:	[2019] VSC 143

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CRIMINAL LAW – Application for bail – Multiple charges whilst on bail for Schedule 2 offences – Whether exceptional circumstances exist justifying bail – Whether the applicant is an unacceptable risk – Applicant aged 16 years with criminal history – Applicant of Aboriginal descent - Bail granted – Bail Act 1977 (Vic), ss 3A, 3B, 3AAA, 4A, 4AA, 4E, 30B – Crimes Act 1958 (Vic), ss 17(1)(c), 18, 21, 23, 31(1)(b), 456AA(3)(a), 74, 195H(1), 197(1) – Summary Offences Act 1996 (Vic), s 23 – Children, Youth and Families Act 2005 (Vic), ss 3, 346(6).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Moglia	Kurnai Legal
For the Respondent	Ms B Crowley	Victoria Police

HIS HONOUR:

A. Introduction

The applicant is 16 years of age.[1]
[1]She was born on 9 June 2002.

On 9 February 2019, the applicant was arrested and charged with offences of recklessly causing injury, unlawful assault and committing an indictable offence whilst on bail. The charges relate to an incident which is alleged to have occurred on 8 February 2019.

With respect to the charges the subject of this application, there is a co-accused who is the older sister of the applicant.[2] The co-accused was charged with recklessly causing injury and unlawful assault and has already been granted bail.
[2]The co-accused is 17 years old.

The applicant has been in custody since her arrest on 9 February 2019. On 11 February 2019, the applicant applied to the Latrobe Valley Children’s Court for bail, which was refused.[3] The applicant has been remanded in custody until 8 March 2019.
[3]See par 42 below.

The applicant now applies to this court for bail. For the reasons stated, bail will be granted, subject to conditions.

B. The alleged offending

The applicant was arrested and remanded in custody on 9 February 2019, and charged with the following offences:

(1)1 count of recklessly causing injury without lawful excuse pursuant to s 18 of the Crimes Act 1958 (Vic) (“Crimes Act”).
(2)1 count of unlawful assault pursuant to s 23 of the Summary Offences Act 1966 (Vic) (“Summary Offences Act”).
(3)1 count of committing an indictable offence (recklessly causing injury) whilst on bail pursuant to s 30B of the Bail Act 1977 (Vic) (“Bail Act”).

The offences relate to events which occurred outside the home of a neighbour of the applicant, in the early evening on 8 February 2019. The applicant contests the charges.

The prosecution alleges that the applicant’s neighbour was visited by a friend, who was checking up on the neighbour after she…

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 LT

Details

AGLC: Application for Bail By Lt [2019] VSC 143
Case: [2019] VSC 143
Decision Date: 6 MARCH 2019

CaseChat Overview and Summary

In the matter of Re LT, the applicant, a 16-year-old Aboriginal youth with a criminal history, sought bail while facing multiple charges for serious offences under the Bail Act 1977 (Vic) and various other statutes. The court was tasked with determining whether exceptional circumstances existed to justify the granting of bail and whether the applicant posed an unacceptable risk to the community if released on bail. The case arose in the Children's Court of Victoria, highlighting the complexities of balancing the rights of a young person with the need to protect the community.

The central legal issues were whether the applicant's history and the nature of the charges warranted denying bail and whether any exceptional circumstances existed that would justify an exception to the general rule against bail for serious offences. The court considered the principles outlined in the Bail Act 1977 (Vic), including the presumption in favour of bail and the requirement to ensure the safety of the community and the likelihood of the accused appearing in court. Additionally, the court evaluated the applicant's personal circumstances, including age, background, and potential rehabilitation opportunities.

The court found that despite the seriousness of the charges and the applicant's prior criminal record, exceptional circumstances did exist that warranted the granting of bail. The judge recognised the importance of the applicant's cultural background and the potential benefits of rehabilitation within a supportive environment. The court concluded that the applicant was not an unacceptable risk to the community if appropriate conditions were imposed. The decision emphasised the need for tailored bail conditions that would ensure the applicant's compliance and protect the community.

The court granted bail subject to stringent conditions, including residence at a specified address, adherence to a curfew, and regular reporting to a bail supervisor. The decision underscored the importance of individualised assessments in bail applications involving young offenders and highlighted the potential for rehabilitation and reintegration into society.

Orders