Re TP - [2018] VSC 748

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0295

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by T P

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2018
DATE OF JUDGMENT:	4 December 2018
CASE MAY BE CITED AS:	Re TP
MEDIUM NEUTRAL CITATION:	[2018] VSC 748

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CRIMINAL LAW – Application for bail – Children’s Court – Charges of burglary, criminal damage, theft, aggravated home invasion, false imprisonment, making threats to kill, theft of a motor vehicle, armed robbery, and committing an indictable offence whilst on bail – Applicant required to show exceptional circumstances – Bail granted subject to conditions – Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D. Dempsey	Victoria Legal Aid
For the Respondent	Mr D. Brown	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 26 September 2018, the applicant was arrested and charged with offences of burglary, criminal damage, theft (two counts), aggravated home invasion, false imprisonment, making threats to kill, theft of a motor vehicle, armed robbery, and committing an indictable offence whilst on bail (three counts). The charges relate to four incidents alleged to have occurred between 21 – 23 September 2018.

At the time of the alleged offending, the applicant was on bail for three charges of theft from a shop, allegedly committed on 17 September 2018. He was also subject to a 12 month good behaviour bond, imposed on 16 August 2018, for multiple offences of theft from a shop and theft, and committing an indictable offence whilst on bail.

In respect to the charges subject to this application, there are two known co-accused, who are aged 14 and 15. Both are currently on remand. It is alleged that additional offenders were involved, however they are yet to be identified.

The applicant is 17 years old and has been in custody since his arrest. On 8 November 2018, he applied to the Melbourne Children’s Court for bail, but it was refused on 9 November 2018.

On 14 November 2018, the applicant applied to this Court for a grant of bail.

The alleged offending
The first incident – burglary

The prosecution alleges that between 9.30am and 6.30pm on 21 September 2018, the applicant and a co-accused forced entry into a premises in Cairnlea via the rear door, and stole a laptop, iPad, camera equipment, headphones and $4,970 in cash. It is also alleged that the applicant and co-accused vandalised the premises, causing approximately $15,000 damage. The residents of the premises were not present at the time. The applicant and co-accused were identified by CCTV in a neighbouring street.

The second incident – robbery

At approximately 7.50pm on 22 September 2018, it is alleged that the applicant, another co-accused and an unknown male followed the complainant and his friend through Melbourne Central Shopping Centre. The applicant and the unknown male approached the complainant and punched him to the…

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 TP

Details

AGLC: Re TP [2018] VSC 748
Case: [2018] VSC 748
Decision Date: 4 December 2018

CaseChat Overview and Summary

In the case of Re TP, the applicant, a juvenile, faced a multitude of serious charges, including burglary, criminal damage, theft, aggravated home invasion, false imprisonment, making threats to kill, theft of a motor vehicle, armed robbery, and committing an indictable offence while on bail. The matter was heard in the Children's Court, which was tasked with determining whether the applicant should be granted bail. The court's decision was guided by the principles outlined in the Bail Act 1977 and the necessity for the applicant to demonstrate exceptional circumstances given the gravity of the charges.

The primary legal issue before the court was whether TP's exceptional circumstances warranted the grant of bail despite the severity of the allegations. The court considered several factors, including the nature and seriousness of the charges, the risk of reoffending, the impact on the community, and the likelihood of the applicant appearing in court if granted bail. The court also evaluated the applicant's personal circumstances, such as their background, family support, and ties to the community. The court had to balance the presumption in favour of bail for children with the need to protect the community and ensure that justice is served.

The court determined that, while the charges were indeed serious, there were sufficient exceptional circumstances to warrant granting bail. The applicant's background, which included a history of supportive family involvement and a lack of prior criminal history, played a significant role in the court's decision. The court was satisfied that with appropriate conditions, the risk of reoffending could be mitigated, and the applicant could be adequately supervised. The court concluded that granting bail would not endanger the community and would allow the applicant to prepare their defence in a manner consistent with their rights. The court imposed strict bail conditions to ensure compliance and protect the community.

The final orders of the court granted TP bail subject to specific conditions, including regular reporting to a bail supervisor, adhering to a curfew, and abiding by a no-contact order with certain individuals. The applicant was also required to surrender any travel documents and maintain a fixed address. These conditions were deemed necessary to manage the risk of reoffending and to ensure that the applicant would appear in court as required. The decision underscored the Children's Court's commitment to balancing the rights of the accused with the need for public safety and the administration of justice.

Orders