Re Nyembwe - [2023] VSC 413

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0135

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an application for bail by GEORGE NYEMBWE

BETWEEN:

GEORGE NYEMBWE	Applicant
and
VICTORIA POLICE	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2023
DATE OF JUDGMENT:	12 July 2023
DATE OF REASONS:	27 July 2023
CASE MAY BE CITED AS:	Re Nyembwe
MEDIUM NEUTRAL CITATION:	[2023] VSC 413

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CRIMINAL LAW — Application for bail — Charges relating to home invasion, theft, commit indictable offence whilst on bail — Two other unresolved matters, one police bail in one matter and summons in another — Personal safety intervention order in force — Young applicant — Vulnerable in custody and subject of attacks — Family support — Eligible for Youth Justice Supervised Bail — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4D, 4E — Sentencing Act 1991 (Vic), s 10A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Conor O’Bryan	Victoria Legal Aid
For the Respondent	Peter Pickering	Victoria Police

HIS HONOUR:

Introduction

This is an application for bail by George Nyembwe [‘the applicant’].

The applicant is 18 years old and has been in custody since 3 June 2023. This is his first time in custody. He has been charged by Detective Senior Constable Kellie Moore [‘the Moore matters’] with the following offences:

(a) home invasion;

(b) theft;

(c) being disguised with unlawful intent; and

(d) committing an indictable offence whilst on bail.

At the time of the alleged offending in the Moore matters, the applicant was on police bail for the following charges filed by First Constable Zachary Angell on 5 April 2023 [‘the Angell matters’]:

(a) possessing a drug of dependence (cannabis);

(b) possessing a controlled weapon;

(c) possessing a prohibited weapon;

(d) recklessly dealing with the proceeds of crime;

(e) dealing with property suspected to be the proceeds of crime;

(f) going equipped to steal; and,

(g) possessing suspected stolen goods.

In addition, at the time of the alleged offending in the informants Moore and Angell matters, the applicant was subject to a Children’s Court summons for one charge of obtain property by deception filed by Senior Constable Sprakel on 3 January 2023.

Procedural history

On 7 June 2023, the applicant was refused bail in the in the Moore matters in the Bail and Remand Court, on the basis that — if granted bail — he posed an unacceptable risk of, committing an offence; endangering the safety or welfare of any person; and interfering with a witness or otherwise obstructing the course of justice. The applicant now seeks bail in relation to this matter.

The Moore matters are next listed in the Melbourne Magistrates’ Court on 11 September 2023 for committal mention alongside an application to revoke bail in the Angell matters. The Angell matters are next listed in the Wangaratta Magistrates’ Court on 14 August 2023 for mention.…

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 Nyembwe

Details

AGLC: Re Nyembwe [2023] VSC 413
Case: [2023] VSC 413
Decision Date: 12 July 2023

CaseChat Overview and Summary

In the case of Re Nyembwe, the applicant, a young individual facing charges related to home invasion, theft, and committing an indictable offence while on bail, applied for bail to the Court. The applicant also had two other unresolved legal matters pending: one involving police bail and the other a summons. A personal safety intervention order was in effect against the applicant. The application was heard in the County Court of Victoria. The central legal issues revolved around the assessment of the applicant's eligibility for bail under the Bail Act 1977 (Vic) and the potential impact of their personal circumstances, including vulnerability in custody and the presence of family support, on the bail decision.

The court had to consider various statutory provisions, including sections 1B, 3AAA, 4, 4AA, 4D, and 4E of the Bail Act 1977 (Vic), as well as section 10A of the Sentencing Act 1991 (Vic). The court balanced the seriousness of the charges against the applicant's vulnerability in custody, potential for reoffending, and the likelihood of appearing in court if granted bail. Given the applicant's youth, vulnerability, and family support, the court found that the applicant was eligible for Youth Justice Supervised Bail. Consequently, the court granted the application for bail, taking into account the applicant's personal circumstances and the statutory criteria.

The court's decision highlighted the importance of considering individual factors such as vulnerability and support networks when determining bail eligibility. The applicant was granted bail subject to specific conditions, ensuring that the interests of justice were upheld. The final orders reflected the court's determination that the applicant met the criteria for bail, considering both the statutory requirements and the applicant's personal circumstances.

Orders