Re Visser - [2024] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0301

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by WILLEM VISSER

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JUDGE:	Walker JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2023
DATE OF ORDERS:	21 December 2023
DATE OF RULING:	7 February 2024
CASE MAY BE CITED AS:	Re Visser
MEDIUM NEUTRAL CITATION:	[2024] VSC 18

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CRIMINAL LAW – Trial – Bail application – Applicant facing multiple charges including theft, assault, aggravated burglary and committing an indictable offence while on bail – Applicant 19 years old – Crown concession that exceptional circumstances existed justifying bail – Exceptional circumstances established – Whether unacceptable risk of reoffending – Risk of reoffending mitigated by imposition of bail conditions – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms A Wong	Victoria Legal Aid
For the respondent	Sergeant P McKimmie	Office of Public Prosecutions

HER HONOUR:

Willem Visser (‘the applicant’) is a 19 year old youth[1] with a limited criminal history, who has been diagnosed with several mental health issues and who was remanded in custody for the first time on 21 November 2023. He sought bail in relation to 25 charges, arising from five distinct incidents. The majority of the charges concern offences alleged to have occurred when he was 17 and 18 years old.
[1]The applicant was born on 21 November 2004.

The first set of charges concern offending alleged to have occurred on 23 October 2022, namely theft and assault emergency worker on duty. The second set of charges concern offending alleged to have occurred on 27 February 2023, namely four charges of theft. The third set of charges concern offending alleged to have occurred on 14 May 2023, namely robbery, obtaining property by deception and committing an indictable offence whilst on bail. The fourth set of charges concern offending alleged to have occurred on 12 July 2023, namely theft and committing indictable offence whilst on bail. The applicant was bailed in relation to all of these charges.

The final set of charges — and the most serious — concern offending alleged to have occurred between 17 and 21 November 2023, namely:

(a) attempted aggravated burglary (three counts);

(b) aggravated burglary — person present;

(c) theft (two counts);

(d) theft of motor vehicle;

(e) attempt to obtain property by deception;

(f) committing an indicatable offence whilst on bail (two counts);

(g) retaining stolen goods;

(h) possessing a drug of dependence (two counts); and

(i) possessing a prohibited weapon without an exemption or approval.

The applicant was refused bail by a magistrate in relation to these charges on 22 November 2023, and bail in relation to the earlier charges was revoked. The magistrate concluded that exceptional circumstances existed so as to satisfy s 4C of the Bail Act 1977 (‘the Act’), but found that the applicant posed an unacceptable risk of further offending while on bail and a risk of endangering 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 Visser

Details

AGLC: Re Visser [2024] VSC 18
Case: [2024] VSC 18
Decision Date: 7 February 2024

CaseChat Overview and Summary

The matter of Re Visser involved a bail application by an individual facing multiple charges, including theft, assault, aggravated burglary, and committing an indictable offence while on bail. The applicant was 19 years old and the court was tasked with determining whether bail should be granted, considering the nature and seriousness of the charges. The Crown conceded that exceptional circumstances existed, justifying the granting of bail, and the court was required to assess whether these exceptional circumstances were sufficient to establish an unacceptable risk of reoffending.

The legal issues before the court included whether the exceptional circumstances put forward by the Crown were sufficient to justify bail, and if the risk of reoffending was mitigated by the imposition of appropriate bail conditions. The court considered the principles of bail, which require a balance between the interests of the community and the rights of the accused. The court had to weigh the severity of the charges against the exceptional circumstances presented and determine if the risk of reoffending could be sufficiently mitigated by bail conditions.

In its reasoning, the court acknowledged the seriousness of the charges but recognised the Crown's concession regarding exceptional circumstances. It found that these circumstances warranted a finding of an unacceptable risk of reoffending. However, the court determined that this risk could be mitigated through the imposition of stringent bail conditions. The court ultimately concluded that, while the charges were severe, the exceptional circumstances and the ability to impose conditions that would manage the risk of reoffending justified the granting of bail.

The final orders of the court were to grant bail to the applicant, subject to the conditions imposed to ensure compliance and mitigate the risk of reoffending. The court outlined specific conditions that the applicant had to adhere to, reflecting a careful consideration of the exceptional circumstances and the need to balance the rights of the individual with the safety of the community.

Orders