JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2024
DATE OF RULING:	8 July 2024
DATE OF REASONS:	15 July 2024
CASE MAY BE CITED AS:	Re Thorpe
MEDIUM NEUTRAL CITATION:	[2024] VSC 414

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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offence alleged to have been committed whilst on bail for another Schedule 2 offence – Applicant identifies as Aboriginal – Requirement to demonstrate exceptional circumstances – Exceptional circumstances demonstrated – Whether unacceptable risk – Stable accommodation – Family support – Availability of culturally appropriate supports and treatment – Risk ameliorated through strict conditions – Bail granted – Bail Act 1977 (Vic), ss 1B, 3A, 3AAA, 4A, 4AA, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the applicant	S Gillahan	Victorian Aboriginal Legal Service
For the respondent	J Piggott	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

The applicant, Shaquel Thorpe (“Thorpe”), was arrested on 23 November 2023 and charged with the following offences, alleged to have been committed in the early hours of the same day:
(1)Aggravated burglary, contrary to section 77(1) of the Crimes Act 1958 (Vic).
(2)Sexual assault, contrary to section 40(1) of the Crimes Act.
(3)Carrying a controlled weapon without lawful excuse, contrary to section 6(1) of the Control of Weapons Act 1990 (Vic).
(4)Possession of a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(Collectively, “the November 2023 Charges”.)
Thorpe made an application for bail in respect of the November 2023 Charges in the Magistrates’ Court of Victoria at Shepparton the following day. That application was granted.
On 1 May 2024, while on bail in respect of the November 2023 Charges, Thorpe was again arrested and charged with the following offences, alleged to have been committed on 29 April 2024:
(1)Attempt to commit an indictable offence, namely armed robbery, contrary to section 321M of the Crimes Act.
(2)Unlawful assault with a weapon, contrary to section 24(2) of the Summary Offences Act 1966 (Vic).
(3)Assault without lawful excuse, contrary to common law.
(Collectively, “the May 2024 Charges”).[1]
[1]The charge sheet as filed in respect of the May 2024 Charges states that the alleged offending occurred on 1 May 2024. However, the date of 29 April 2024 is provided in both the police summary and informant’s report. The correct date was confirmed to be 29 April 2024 by the informant at the hearing.
Thorpe has been on remand since his arrest in relation to the May 2024 Charges. He has made unsuccessful applications for bail in the Shepparton Magistrates’ Court on 2 May 2024, 31 May 2024 and 27 June 2024. The first 2 of these applications were refused on the basis that, although exceptional circumstances were established,…

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 Thorpe

Details

AGLC: Shaquel THORPE vs Victoria [2014] VSC 414
Case: [2024] VSC 414
Decision Date: 8 July 2024

CaseChat Overview and Summary

Re Thorpe involved an application for bail by the applicant, who was charged with a Schedule 2 offence while already on bail for another Schedule 2 offence. The case was heard in the Magistrates' Court of Victoria, where the presiding magistrate needed to determine whether to grant or refuse the bail application. The applicant identified as Aboriginal and argued that exceptional circumstances warranted their release on bail despite the seriousness of the charges.

The primary legal issues before the court were whether the applicant had demonstrated exceptional circumstances to justify bail, and whether the risk of reoffending was unacceptable. Given the applicant's Aboriginal identity, the court considered the importance of culturally appropriate supports and treatment. The applicant presented evidence of stable accommodation, family support, and access to such supports and treatment, which the court found to be compelling. The court also assessed the risk of reoffending in light of the proposed strict bail conditions.

The magistrate found that the applicant had indeed demonstrated exceptional circumstances due to the availability of culturally appropriate supports and the mitigating factors presented. The risk of reoffending was deemed acceptable given the strict conditions imposed on the applicant's bail. Consequently, the court granted the bail application, emphasising the importance of the proposed conditions in ensuring the applicant's compliance and reducing the risk of reoffending.

Orders