Re RN

Case [2023] VSC 9 16 January 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0345

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by RN

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 January 2023
DATE OF JUDGMENT:	16 January 2023
CASE MAY BE CITED AS:	Re RN
MEDIUM NEUTRAL CITATION:	[2023] VSC 9

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CRIMINAL LAW – Bail – Child applicant charged with Schedule 2 offence (aggravated burglary) whilst on bail for Schedule 2 offence (aggravated burglary) – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Bail refused – Bail Act 1977 s 3AAA, s 3B, s 4, s 4AA, s 4A, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Dribbin & Brown Criminal Lawyers
For the Respondent	Ms J Gleeson	Victoria Police

HIS HONOUR:

Introduction

The child applicant — whom, for convenience, I shall refer to as ‘RN’ — is aged 13 years.[1] He has been in custody since 30 November 2022, and, having been refused bail by the Children’s Court on 16 December 2022, now seeks bail from this court.[2]
[1]By virtue of s 3(1) of the Children, Youth and Families Act 2005, in the case of a person who is alleged to have committed an offence, a child is ‘a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years’.
[2]The 19 matters upon which the applicant is remanded, and for which he seeks bail, are set out are set out in the Appendix hereto.

Between 1 May and 30 November 2022, the applicant was arrested on eight occasions (and, on the applicant’s solicitor’s calculation, between 3 June and 30 December 2022, had spent a total of 97 days in custody) as follows:

· 21 May 2022: the applicant was arrested and bailed;

· 31 May 2022: the applicant was arrested and bailed;

· 3 June 2022: the applicant was arrested and spent two weeks in custody until bailed by the Children’s Court on 17 June 2022;

· 28 June 2022: the applicant was arrested and granted bail the next day by the Children’s Court;

· 20 July 2022: the applicant was arrested and spent nine days in custody until bailed by the Children’s Court on 29 July 2022;

· 11 August 2022: the applicant was arrested and spent almost a month in custody until bailed by the Children’s Court on 9 September 2022;

· 11 November 2022: the applicant was arrested and spent 10 days in custody until bailed by the Children’s Court on 21 November 2022; and

· 30 November 2022: the applicant was arrested and has been in custody since.

The applicant has allegedly committed a staggering number of offences. On my calculation, the applicant faces 181 separate charges,[3] including more than a dozen charges of…

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 RN

Details

AGLC: Re RN [2023] VSC 9
Case: [2023] VSC 9
Decision Date: 16 January 2023

CaseChat Overview and Summary

A juvenile applicant, RN, sought bail from the Court of Appeal against a decision of the Magistrates’ Court that had refused bail. RN was charged with an offence of aggravated burglary whilst already on bail for an offence of aggravated burglary. The primary judge had determined that the applicant would be an unacceptable risk to the community if released on bail and that there were no exceptional circumstances justifying the grant of bail. RN appealed against this decision.

The appeal turned on whether the primary judge had erred in determining that RN would be an unacceptable risk to the community and that there were no exceptional circumstances justifying bail. RN argued that the primary judge had failed to properly consider the nature of the offending, the applicant's age, and the exceptional circumstances of the case. RN contended that the decision was based on an incorrect application of the law and an over-reliance on the seriousness of the charges.

The Court of Appeal rejected the appeal. The Court held that the primary judge had not erred in determining that RN would be an unacceptable risk to the community if released on bail. The Court found that the primary judge had given proper consideration to the nature of the offending, the applicant's age, and the exceptional circumstances of the case. The Court held that the primary judge had not erred in determining that there were no exceptional circumstances justifying the grant of bail. The Court of Appeal dismissed the appeal and affirmed the decision of the Magistrates’ Court.

The Court of Appeal refused bail. The Court ordered that RN remain in custody until the disposal of the criminal proceedings or until further order of the Court.

Orders