Re VD - [2020] VSC 576

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0078

IN THE MATTER OF the Bail Act 1977 (Vic)

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IN THE MATTER OF an application for bail by VD

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2020
DATE OF RULING:	24 April 2020
CASE MAY BE CITED AS:	Re VD
MEDIUM NEUTRAL CITATION:	[2020] VSC 576

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CRIMINAL LAW — Application for bail — Applicant 13 years old — Charges of committing Schedule 2 offences while on bail for Schedule 2 offences — No previous criminal history — Release supported by Youth Justice — Exceptional circumstances conceded — Whether unacceptable risk if released on bail — Risk can be ameliorated with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D and 4E —Children, Youth, and Families Act 2005 (Vic) 346.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gibson	Victoria Legal Aid
For the Respondent	Mr P Collins	Victoria Police

HIS HONOUR:

This is an application for bail by VD, who is a child of 13 years of age. The notice of application was filed, together with an affidavit in support of the application, on 23 April 2020.

This young man, despite his age, is charged with an array of offences, which are alleged to have occurred between 25 September 2019 and 22 April 2020.

In the first matter, Senior Constable Tim Walker charged the applicant on 25 September 2019 with robbery, dishonestly retaining stolen goods, unlawful assault, affray and stating a false name (the ‘Informant Walker matters’).

The next set of charges were laid by Detective Senior Constable Timothy Joustra on 26 November 2019. The applicant was charged with robbery, unlawful assault and theft (the ‘Informant Joustra matters’).

On 29 November 2019, Senior Constable Ashleigh Jung charged the applicant with robbery (three counts), attempted robbery (two counts), affray, theft (two counts), attempted theft, unlawful assault (10 counts), recklessly causing injury, and committing an indictable offence whilst on bail (the ‘Informant Jung matters’).

On 16 March 2020, the applicant was charged with theft of a motor vehicle, dishonestly retaining stolen goods, and committing an indictable offence whilst on bail by Senior Constable Sean Kelleher (the ‘Informant Kelleher matters’).

The most recent set of charges were laid on 22 April 2020 by Senior Constable Ashely McCooke, who charged the applicant with attempted aggravated burglary, theft of a motor vehicle (three counts), and committing an indictable offence whilst on bail (the ‘Informant McCooke matters’).

Previously, the Informant Walker, Joustra, Jung and Kelleher matters were the subject of grants of bail. However, the Dandenong Children’s Court revoked bail in all four matters and refused the applicant’s application for bail in relation to the Informant McCooke matters on 23 April 2020. That Court found that the applicant had failed to show exceptional circumstances, and that there is an unacceptable risk that he would commit an offence whilst on bail…

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 VD

Details

AGLC: Re VD [2020] VSC 576
Case: [2020] VSC 576
Decision Date: 24 April 2020

CaseChat Overview and Summary

A 13-year-old applicant, charged with committing Schedule 2 offences while on bail for similar offences, sought bail in the Children's Court of Victoria. The applicant had no previous criminal history and the Youth Justice supported the release. The case before the court was to decide whether there was an unacceptable risk if the applicant was released on bail and, if not, what conditions would be appropriate to mitigate any risks. The court examined the provisions of the Bail Act 1977 (Vic) and the Children, Youth, and Families Act 2005 (Vic), considering the age of the applicant and the exceptional circumstances presented. The court found that the risk could be managed through the imposition of suitable bail conditions.

The court focused on the principle that the best interests of the child should be the primary consideration in determining bail. It found that the applicant's age and lack of criminal history were significant mitigating factors. Additionally, the exceptional circumstances, including the support from Youth Justice, were acknowledged as important considerations. The court concluded that the risk of reoffending could be sufficiently controlled through appropriate bail conditions, thereby addressing the concerns regarding public safety and the welfare of the child. Accordingly, the court granted bail with conditions to ensure the applicant's compliance and to mitigate any potential risks.

The court imposed conditions that included regular reporting to a bail supervisor, adherence to a curfew, and restrictions on the applicant's movements. These measures were deemed necessary to monitor the applicant's activities and ensure compliance with the bail terms. The court also required the applicant to participate in any programs recommended by Youth Justice to address the underlying issues contributing to the offending behaviour. The decision emphasised the importance of balancing the rights of the child with the need to protect the community and uphold the rule of law. The court's ruling recognised the potential for rehabilitation and the role of supportive interventions in preventing reoffending.

Orders