TAS v The Queen - [2020] SASC 172

Supreme Court of South Australia
(Criminal: Application)
TAS v THE QUEEN
[2020] SASC 172
Judgment of The Honourable Justice Livesey (ex tempore)
15 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with robbery by force and arson. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing her bail.
Held, allowing the application; bail is granted. Observations made regarding the presumption in favour of bail in the case of children subject to the Young Offenders Act 1993 (SA).
Bail Act 1985 (SA) s 14, s 10; Criminal Law Consolidation Act 1935 (SA) s 137(1), s 85(1); Summary Offences Act 1953 (SA) s 74AB; Young Offenders Act 1993 (SA) s 3, s 10, referred to.

TAS v THE QUEEN
[2020] SASC 172
Criminal: Application for review of bail

LIVESEY J: The applicant seeks a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) following the refusal of bail by a Magistrate in the Adelaide Youth Court on 4 September 2020.
The Magistrate refused bail on the sole ground of the seriousness of the alleged offending.
The circumstances of the alleged offending
The applicant has been charged on Information as follows:
1On 2 September 2020 at Elizabeth she committed robbery by force by taking a motor vehicle, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offence is charged as an aggravated offence because it occurred in the company of another person.
2On 2 September 2020 at Largs North she committed arson by setting fire to a motor vehicle, with the damage amounting to more than $30,000, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).
As the Magistrate rightly recognised, the alleged offending is indeed serious.
The prosecution alleges that at just before 4:00 pm the complainant was leaving the Elizabeth City shopping centre and walking to her vehicle outside a supermarket entrance when she heard a female yell “slut”. She was then accosted by a woman whom I am told is known as B, who said to the complainant “my friend said you called me a slut”. That woman then repeatedly punched the complainant’s face and, once the complainant had fallen to the ground, kicked the complainant’s face. It is alleged that the applicant then grabbed the complainant’s car keys, got into the driver’s seat and both the applicant and the female known as B drove off, taking the complainant’s handbag and its contents.
Both the applicant and B were wearing hoods covering their heads as well as surgical masks. The complainant managed to take a photograph of her assailants on her mobile phone. She was taken to the Lyell McEwin Hospital by ambulance and diagnosed with a fractured jaw which required surgery.
At around 9:50…

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 TAS v The Queen

Details

AGLC: TAS v The Queen [2020] SASC 172
Case: [2020] SASC 172
Decision Date: 15 September 2020

CaseChat Overview and Summary

The case of TAS v The Queen involved the applicant, a young individual, facing charges of aggravated robbery and arson. The dispute centred around the revocation and variation of the applicant's bail conditions in light of the serious nature of the charges. The case was heard in the South Australian Supreme Court.

The primary legal issue before the court was whether the applicant's bail should be revoked or varied in view of the seriousness of the charges and the risk of reoffending. The applicant argued for strict simple bail with conditions such as a curfew and mandatory school attendance, while the prosecution urged for the revocation of bail due to the gravity of the charges. The court was required to balance the presumption in favour of bail under the Bail Act 1985 (SA) with the need to protect the community and consider the statutory policies outlined in the Youth Offenders Act 1999 (SA).

The court acknowledged the applicant's contrition and the upset displayed during the bail review hearing. However, it ultimately determined that the seriousness of the charges warranted revocation of bail. The court noted that the objects and policies of the Youth Offenders Act 1999 (SA) did not preclude consideration of the gravity of the illegal conduct when imposing sanctions on a youth. The court was particularly concerned about the risk of reoffending, given the nature of the charges. Consequently, the court revoked the applicant's bail.

The final orders of the court were to revoke the applicant's bail and to remand the applicant in custody pending the outcome of the criminal proceedings. The court emphasised the need to protect the community and to consider the seriousness of the charges when making decisions about bail for young offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Nonetheless, it was urged that the applicant and her mother are both contrite. They were both tearful and plainly upset during the initial hearing of this bail review.Consideration of the bail review As might be expected, the applicant emphasised the presumption in favour of bail under s 10 of the Bail Act 1985 (SA), arguing that remand in custody, particularly in the youth jurisdiction, is “an option of last resort”. The applicant urged that, notwithstanding the seriousness of the charges of aggravated robbery and arson, “strict simple bail” is appropriate with conditions that include a curfew and the requirement to attend school. I interpolate here that the applicant acknowledged that she could not continue to spend evenings with her boyfriend in the home of his parents. Emphasis was placed upon the objects and statutory policies laid down by s 3 of the Youth Offenders Act 1999 (SA):3—Objects and statutory policies(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:(a) a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;(b) the community, and individual members of it, must be adequately protected against violent or wrongful acts.(2a)In imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth.(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;(ab) compensation and restitution should also be provided, where appropriate, for persons who have suffered loss or damage as a result of offences committed by youths;(b) family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;(c) a youth should not be withdrawn unnecessarily from the youth’s family environment;(d) there should be no unnecessary interruption of a youth’s education or employment;(e) a youth’s sense of racial, ethnic or cultural identity should not be impaired. (4)This section does not apply to a court imposing sanctions on a youth who is being dealt with as an adult, whether because the youth’s conduct is part of a pattern of repeated illegal conduct or for some other reason, including, for example, the gravity of the illegal conduct (and the laws applying in relation to the sentencing of an adult apply to such a youth). It is well recognised that, speaking generally, the approach taken under the criminal law in South Australia to the prosecution, sentencing and rehabilitation of children differs from the approach taken to adults. For example, general deterrence is not normally an appropriate matter to take into account when sentencing children.[1] This approach accords with the approach in Victoria.[2] By contrast, general deterrence and denunciation appear to be relevant factors when sentencing children in Western Australia[3] and New South Wales.[4][1] R v S (1982) 31 SASR 264, 265 (King CJ), 268 (Zelling J). See also R v Homer (1976) 13 SASR 377, 382-383 and Hallam v O'Day (1979) 22 SASR 133, 135-136.[2] CNK v R (2011) 32 VR 641, [10] and [26]-[27] (Maxwell P, Harper JA and Lasry AJA).[3] JA (a child) v The State of Western Australia [2008] WASCA 70, [17] (McLure J, with whom Steytler and Pullin JJ agreed).[4] R v JDP (1991) 53 A Crim R 112, 116 (CCA) and R v NMTP [2000] NSWSC 1170 (Bell J).