Re PM - [2022] VSC 421

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0178

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application by PM

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2022
DATE OF JUDGMENT:	29 July 2022
CASE MAY BE CITED AS:	Re PM
MEDIUM NEUTRAL CITATION:	[2022] VSC 421

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CRIMINAL LAW – Application for bail – Applicant is 13 year old child – Applicant charged with murder – Requirement to show exceptional circumstances – Whether applicant an unacceptable risk – Availability of supports – Exceptional circumstances established – Applicant an unacceptable risk if granted bail with conditions – Bail refused – Bail Act 1977, ss 3AAA, 3B, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Louise Conwell	Stary Norton Halphen
For the Respondent	Ms Kristie Churchill	Office of Public Prosecutions

HIS HONOUR:

PM (‘the applicant’) has applied for bail. He is 13 years of age and has been charged with murder. He is currently being detained in a youth justice centre, having been arrested and remanded on 23 March 2022.

The statutory test

Notwithstanding his young age, and the fact that the law presumes that the applicant lacks the capacity to form the necessary mental element for the offence,[1] the applicant can only be granted bail if there are exceptional circumstances justifying the grant of bail.[2] In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances in s 3AAA of the Act. Even if the applicant satisfies the exceptional circumstances test, bail must be refused if the respondent establishes that there is an unacceptable risk that the applicant would, if released on bail, commit an offence while on bail, interfere with witnesses, fail to surrender into custody, endanger the safety or welfare of any person, or otherwise obstruct the course of justice.[3]
[1]RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 (‘RP’).
[2]Bail Act 1977, s 4A (‘the Act’). The exceptional circumstances test applies pursuant to s 4AA(1). The offence of murder is a schedule 1 offence, namely item 2.
[3]Ibid s 4E(1)(a).

The Court must take into account the matters listed in s 3B(1) of the Act. Those considerations are:

(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than…

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 PM

Details

AGLC: Re PM [2022] VSC 421
Case: [2022] VSC 421
Decision Date: 29 July 2022

CaseChat Overview and Summary

The case of Re PM involved a thirteen-year-old child charged with murder. The applicant sought bail from the Supreme Court of New South Wales. The primary concern of the court was whether exceptional circumstances existed to grant bail to such a young individual facing such a serious charge. The court also needed to assess if the applicant posed an unacceptable risk to the community if released on bail and whether there were sufficient support structures available to manage this risk.

The legal issues before the court included the application of the Bail Act 1977 and its provisions. The court had to determine whether the applicant's age and the seriousness of the charge constituted exceptional circumstances under section 3AAA. It was also required to consider whether the applicant was an unacceptable risk under section 3B and whether bail could be granted under section 4AA despite this risk. Additionally, the court examined the availability of support under section 4A and the balance of considerations under section 4E to decide on the bail application.

The court found that while the applicant's age and the gravity of the charge constituted exceptional circumstances, the applicant was still deemed an unacceptable risk if granted bail with conditions. The court noted that the applicant had limited support structures and was at risk of reoffending. After weighing all the factors, the court concluded that the risk to the community outweighed the potential benefits of granting bail. Consequently, the application for bail was refused.

Orders