Re LW - [2019] VSC 616

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0121

IN THE MATTER OF the Bail Act 1977 (Vic)

-and-

IN THE MATTER OF an Application for Bail by LW

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 and 26 June 2019
DATE OF RULING:	26 June 2019
CASE MAY BE CITED AS:	Re LW
MEDIUM NEUTRAL CITATION:	[2019] VSC 616

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CRIMINAL LAW – Application for bail – 16 year old Indigenous applicant – Applicant charged with Schedule 2 offence whilst on bail for Schedule 2 offence – Whether exceptional circumstances justifying bail demonstrated – Application opposed – Exceptional circumstances established – Risk can be mitigated to an acceptable level – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E – Children, Youth and Families Act 2005 (Vic) s 346(6).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C Woodward	Victoria Legal Aid
For the Respondent	Mr P Collins	Victoria Police

HIS HONOUR:

This is an application for bail by LW (‘applicant’), who is a 16-year-old Aboriginal child. In many respects, this applicant represents the consequence of the failings of our society. The applicant is a child, he is Indigenous, and he is intellectually disabled. As such, this application confronts the Court with very difficult and, at times, conflicting considerations.

Procedural history

On 5 June 2019, the applicant was arrested and charged with two counts of theft of a motor vehicle and with two counts of committing an indictable offence whilst on bail. Those charges relate to events that are alleged to have occurred on 3 and 4 June 2019. They involved the applicant and three others joyriding in stolen cars in the Shepparton area.

He has been in custody since his arrest. He was previously refused bail by the Shepparton Children's Court on 7 June 2019. This matter is next listed in that court on 28 June 2019 for mention.

There are two other co-accused involved in this offending. Both of them have been granted bail in the Shepparton Children's Court, which raises — to a degree at least — the question of parity as a relevant legal consideration in bail applications. As I follow it, a third person alleged to have been present during these offences has not yet been charged.

At the time these offences were being committed, the applicant was on bail awaiting sentence for three outstanding matters. The first involves charges of burglary, theft of a motor vehicle, and unlicensed driving, which took place between 6 November 2018 and 6 December 2018 (‘Schroeter matter (No 1)’).

The second matter, involves charges of theft of a motor vehicle, committing an indictable offence whilst on bail, and unlicensed driving committed between 3 and 4 January 2019 (‘Slee matter’). The third matter involved charges of attempted aggravated burglary and committing an indictable offence whilst on bail, which took place on 13 February 2019 ( ‘Schroeter matter (No 2)’).

On 27…

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 LW

Details

AGLC: Re LW [2019] VSC 616
Case: [2019] VSC 616
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the case of Re LW, LW, a 16-year-old Indigenous individual, applied for bail from the County Court of Victoria. LW had been charged with an offence under Schedule 2 of the Crimes (Drug) Act 1958 (Vic) while already on bail for a similar offence. The matter was opposed by the Crown, which argued against the granting of bail due to the seriousness of the charges and the potential risk of reoffending. The central issue for the court was whether exceptional circumstances existed to justify LW's continued detention in custody or whether bail could be granted with appropriate conditions to mitigate the risk.

The court examined the criteria set out in the Bail Act 1977 (Vic) and considered the principles in the Children, Youth and Families Act 2005 (Vic). The court acknowledged LW's age, Indigenous background, and the potential for rehabilitation and support within the community. It was noted that LW had demonstrated a degree of compliance with bail conditions in the past and that appropriate conditions could be imposed to manage the risk of reoffending. The court was satisfied that exceptional circumstances existed, primarily due to LW's age and the potential for effective rehabilitation within the community, warranting the granting of bail.

Accordingly, the court granted bail to LW, imposing a series of conditions to ensure compliance and mitigate the risk of reoffending. These conditions included regular check-ins with a bail supervisor, participation in a drug rehabilitation program, and adherence to a curfew. The court's decision balanced the need to protect the community with the opportunity for LW to address underlying issues and reintegrate into society with support. The final orders of the court were that LW be released on bail with the specified conditions, pending the resolution of the charges against them.

Orders