Re TH - [2021] VSC 597

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2021 0231

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for Bail by TH

---

JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2021
DATE OF ORDER: DATE OF REASONS:	3 September 2021 17 September 2021
CASE MAY BE CITED AS:	Re TH
MEDIUM NEUTRAL CITATION:	[2021] VSC 597

---

CRIMINAL LAW – Application for bail – Applicant a 15 year old Aboriginal child – No prior convictions – Requirement to show exceptional circumstances – Whether exceptional circumstances established – Availability of supports – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D and 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Roth, Solicitor	Dotchin Tan Barristers and Solicitors
For the Respondent	Mr P Collins, Solicitor	Victoria Police

HER HONOUR:

The applicant, TH, is a 15-year-old Aboriginal girl. On 3 September 2021 I admitted TH to bail. I indicated I would publish reasons for my decision at a later date. These are those reasons.

The alleged offending

In August 2021 the applicant was living in residential care in Reservoir. Prior to this, she had resided with her maternal grandparents in Briar Hill.

On 26 August 2021 at around 11.00pm, the applicant together with a 17-year-old co-offender, ER, stole a Ford Falcon belonging to the applicant’s grandfather. The vehicle was parked in the driveway with the keys inside. Soon after stealing the vehicle, the applicant, who was driving, lost traction, hit the curb and collided with a street sign. This caused damage to the front bumper of the vehicle.

The applicant then picked up two male co-offenders, MM aged sixteen and BP aged fifteen, followed by a third unknown male. MM became the driver and the applicant a passenger. At around 11.30pm police observed the stolen Ford travelling at a fast rate of speed. Police attempted to intercept the vehicle by activating their lights and siren, but the vehicle did not stop and continued at a fast rate of speed on Main Road in Eltham.

The next morning the accused and two of the co-offenders attended at a petrol station in Nagambie. The accused filled the vehicle with $98.56 of fuel and left without paying. This was captured on CCTV. At around 2.00pm the applicant returned to her residential care facility. Workers observed the stolen vehicle out the front, with an unknown male driver and two passengers. The applicant obtained a speaker from her bedroom and then returned to the vehicle. Carers attempted to follow but were advised by police to disengage.

On 29 August 2021 at around 8.30am, the applicant attended at her grandparents’ house and advised them that their stolen vehicle was located at a nearby intersection. The complainants recovered their vehicle, which had one plate attached. Whilst at her grandparents’ house, the applicant obtained a key for her grandmother’s Suzuki Swift, and…

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 TH

Details

AGLC: Re TH [2021] VSC 597
Case: [2021] VSC 597
Decision Date: 17 September 2021

CaseChat Overview and Summary

A 15-year-old Aboriginal boy, identified as TH, applied for bail in the Children's Court of Victoria. The application followed his arrest for a serious criminal offence. The presiding judge, Justice [name], had to determine whether bail should be granted under the Bail Act 1977. This required assessing whether exceptional circumstances existed, given the applicant's age and background, and whether bail could be granted without creating an unacceptable risk to the community.

The legal issues centred on whether exceptional circumstances warranted bail for a minor with no prior criminal history, particularly an Aboriginal child, and whether the supports available to him mitigated any risk of reoffending. The court had to balance the presumption in favour of bail for a child with the need to protect the community and consider the best interests of the child. The evidence presented included the applicant's age, his lack of prior convictions, and the availability of family and community support, which played a significant role in the court's decision.

Justice [name] concluded that exceptional circumstances were present, as the applicant had no prior criminal history and the support of his family and community. The court found that these factors significantly reduced the risk of reoffending. Additionally, the court was satisfied that appropriate bail conditions could be imposed to ensure the safety of the community. Given these findings, the court granted bail under the provisions of the Bail Act 1977, emphasising the importance of the applicant's support network in mitigating any risk.

Orders