Re NT

[2014] VSC 381

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0106

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by NT

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2014
DATE OF JUDGMENT:	11 August 2014
CASE MAY BE CITED AS:	Re NT
MEDIUM NEUTRAL CITATION:	[2014] VSC 381

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CRIMINAL LAW – Bail – Show cause situation – Unacceptable risk of offending on bail – No point of principle – Bail Act 1977 (Vic), s 4(4)(c).

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Ms B. Cowley	Simon Shearer, Victoria Police
For the Applicant	Mr A.P. Halphen	Doogue O’Brien George

HIS HONOUR:

1. The applicant has been charged with a series of offences arising from a brawl which occurred between two groups of young men in Sunshine on 24 April 2014. The charges faced by him include intentionally causing serious injury and affray. The intentionally causing serious injury charge arises from a stabbing with a weapon in the course of the brawl. That charge also has a statutory aggravating feature, namely a circumstance of gross violence. By virtue of s 4(4)(c) of the Bail Act, an applicant for bail in the applicant’s position must show why his continued incarceration is not justified.

1. At the date of the brawl, the applicant was undergoing a sentence imposed just one month previously for similar offending in the same area.  For that offending, he was placed on a Youth Supervision Order without conviction.  The pre-sentence report tendered to the court at the time of his sentencing was extremely favourable to him, referring to him in glowing terms both with respect to his willingness to rehabilitate himself and his capacity to do so.  He also took part in a conference to examine his offending with a view to ensuring it was not repeated.  Unfortunately, he did not live up to the writer of the pre-sentence report's expectations or the expected outcome of the case conference.

1. The applicant now seeks bail on his present charge, he not having yet been committed for trial.  He is currently in youth custody and attending school at Parkville College, a secondary school associated with the facility in which he is being held.

1. The applicant’s counsel put a number of matters which, he contended, discharged the onus placed on his client by s 4(4)(c) of the Bail Act, he has never been in custody before; he is young, he is a fervent church-goer, he is engaged in wholesome sporting activities; and he has suitable accommodation with his aunt, a long-distance from the scene of the brawl and from his companions of that night (including his elder brother who was also involved in the brawl).

1. Counsel informed the Court that the applicant could reside with his aunt who would, with the help of his mother, be able to ensure that he continued to attend Parkville College whilst living in Sydenham and fulfil the requirements of the Youth Supervision Order.  He also pointed out that final resolution of the applicant’s case will probably not occur for some months.

1. The Court is required to balance all these factors against public order and safety, and examine them in the light of the onus cast on the applicant to show cause why his continuous detention is not justified.

1. Notwithstanding the earlier pre-sentence and case conference reports to which I have referred, and the fact that the applicant’s brother is currently incapacitated by detention from leading him into further offending, I am not satisfied that his continued detention is not justified.  There is a residual unacceptable risk of his offending whilst on bail, having regard to his remarkably rapid resort to violence, even if he was not the principal offender, a month after being sentenced for similar conduct.  This conclusion is inevitable in the circumstances, the only difference between the two events being that the violence on the second occasion appears to have been somewhat worse than that on the first.

1. The application for bail is refused.