Criminal Division Judgments and Decisions

Application for bail by Carrick (a pseudonym) [2022] VChC 4

Catchwords: CRIMINAL LAW – accused charged with terrorism offences – revocation of bail – application for bail on new facts and circumstances – existence of exceptional circumstances – extensive and extremely stringent array of bail conditions – risk rendered acceptable, having regard to proposed conditions – bail granted.

CDPP v Carrick (a pseudonym) [2022] VChC 3

Catchwords: CRIMINAL LAW – accused charged with terrorism offences – child aged 13 at start of alleged offending and turned 14 – application for uplift opposed by accused – whether charges unsuitable by reason of exceptional circumstances to be determined summarily – excellent compliance on bail with onerous conditions – accused with complex disability support needs – presumption of doli incapax – rarity of charges of such nature against children should not be confused with exceptional circumstances – accused’s circumstances – sentencing options available – Children’s Court does have adequacy of sentences available – application refused.

CDPP v Carrick (a pseudonym) [2023] VChC 2

Catchwords: Children’s Court, Criminal Division – Commonwealth offences – Application for a Permanent Stay – Permanent Stay of the proceedings granted – Section 138 Evidence Act 2008.

Victoria Police v KE [2021] VChC 1

Catchwords: Accused is 16 years old, charged with two Category B serious youth offences, home invasion (Ianelli brief), carjacking (Gambuzza brief) – application by informants pursuant to s 356(3)(b) of the Children, Youth and Families Act 2005 to uplift matter – consideration of whether there are exceptional circumstances that warrant the Court refusing to hear the matter summarily – ruling that the matters relied upon by the applicant do not constitute exceptional circumstances.

Magistrate Fleming
4 June 2021

DPP v KH [2020] VChC 5

CRIMINAL LAW – Plea of guilty to aggravated carjacking (causing injury), attempted aggravated carjacking, false imprisonment, theft, assault emergency worker on duty (x 3), affray and other offences – offending occurred while on youth parole and then on remand – Aboriginal offender – personal circumstances including intellectual disability, developmental trauma and Child Protection involvement – prospects of rehabilitation – impact of COVID-19 restrictions – sentenced to concurrent Youth Justice Centre Orders – conditions including Youth Justice supervision and undertaking of treatment and rehabilitation. 

Magistrate Fleming
20 August 2020

DPP v LZ [2020] VChC 2 

Catchwords: Plea of guilty to one charge of aggravated carjacking (causing injury), two charges of attempted aggravated carjacking, two charges of theft, drive while disqualified, obtaining property by deception and false imprisonment – offending occurred while on youth parole – personal circumstances including extensive history with Child Protection – Aboriginal descent – offending associated with drugs – prospects of rehabilitation – sentenced to concurrent Youth Justice Centre orders – conditions including Youth Justice supervision and undertaking of treatment and rehabilitation.

Magistrate Fleming
8 May 2020

CDPP v LS [2020] VChC 3

CRIMINAL LAW – State and Commonwealth sexual offences committed against offender’s daughter aged 4-5 months of age – offender aged 17 at the time of the offending – general deterrence has no application to the sentencing of children pursuant to the Children, Youth and Families Act 2005 – whether general deterrence applicable in sentencing a child for Commonwealth offences – offender sentenced to an aggregate sentence of 12 months’ detention in a Youth Justice Centre.

Judge Amanda Chambers
22 April 2020  

Victoria Police v Kirk Reese (a pseudonym) [2020] VChC 6

\Catchwords:– CRIMINAL LAW – mental impairment – accused charged with false imprisonment, sexual assault, recklessly causing injury and detention of a person for a sexual purpose – accused found not guilty of two charges following special hearing conducted under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – whether accused should be subject to a custodial or non-custodial supervision order – profoundly deaf and mentally impaired/disabled accused with significant and complex needs – non-custodial supervision order made for up to six months, until proposed facility at DFATS can be considered by the Court. 

Judge Amanda Chambers
6 February 2020

CDPP v LS [2019] VChC 7

Catchwords:– Accused charged with sexual penetration of a child under the age of 12 (3 charges), sexual assault of a child under the age of 16 (4 charges), sexual activity in the presence of a child under the age of 16 (2 charges), produce child pornography (5 charges) and transmit child pornography using a carriage service (5 charges) – application by the prosecution pursuant to s.356(3) of the Children, Youth and Families Act 2005 (Vic) for the charges to be uplifted to an adult jurisdiction – consideration of whether there are exceptional circumstances that make the charges unsuitable to be heard and determined summarily in the Children’s Court – application refused. 

Judge Amanda Chambers
15 November 2019

AH v DPP [2019] VChC 3 

Catchwords: Accused charged with Category A serious youth offence of aggravated carjacking and additional charges – application by child pursuant to s.356(6)(a) of the Children, Youth and Families Act 2005 (CYFA) for the charge to be heard and determined summarily in the Children’s Court – application by the prosecution for the additional charge of attempted aggravated carjacking to be ‘uplifted’ by reason of exceptional circumstances should the application for summary jurisdiction be refused – adequacy of sentencing options under CYFA to respond to the offending – whether there is a ‘substantial and compelling reason’ why the Category A serious youth offence should be heard and determined summarily – application for summary jurisdiction refused – exceptional circumstances found and the charge of attempted aggravated carjacking also uplifted.

Magistrate Stylianou
11 November 2019  

JL v DPP [2019] VChC 2

Catchwords: Accused charged with Category A serious youth offence of aggravated carjacking and additional charges – application by child pursuant to s.356(6)(a) of the Children, Youth and Families Act 2005 (CYFA) for the charges to be heard and determined summarily in the Children’s Court – timing of application during committal hearing – largely circumstantial evidence – application for the additional charges to be ‘uplifted’ by reason of exceptional circumstances should the application for summary jurisdiction be refused – adequacy of sentencing options under CYFA to respond to the offending – whether there is a ‘substantial and compelling reason’ why the charge should be heard and determined summarily – JL a highly vulnerable young person due to a combination of factors, including significantly compromised adaptive functioning – application for summary jurisdiction granted.

Magistrate Stylianou
29 July 2019  

WB v DPP [2019] VChC 1

Catchwords: Criminal law – child accused charged with aggravated carjacking which is defined as a Category A serious youth offence – application for the Category A serious youth offence to be heard and determined summarily pursuant to s356(6) of the Children, Youth and Families Act 2005 – accused now 18 years of age – whether the Children’s Court has adequate sentencing options to respond to the child’s offending – whether “relatively high” burden of establishing substantial and compelling reason for the Category A serious youth offence to be heard and determined summarily has been met – WB’s childhood and adolescence marked by extraordinary trauma, instability, abuse and neglect – low level of cognitive functioning, diagnosed disorders and mental health issues – sexual assault of WB in detention – application for summary jurisdiction granted.

Judge Amanda Chambers
24 June 2019  

 DPP v PT [2018] VChC 7

Catchwords: Accused charged with Aggravated home invasion defined as a Category A serious youth offence in s.3 of the Children, Youth and Families Act 2005 (CYFA); presumption of uplift to a higher court unless certain preconditions are met – application pursuant to s.356(6)(a) CYFA for charges to be heard and determined summarily in the Children’s Court – accused aged 17 years and 9 months at the time of offending – adequacy of this Court’s powers to respond to offending – whether it is in the interests of the victims that the charge be heard and determined summarily – whether there is a ‘substantial and compelling reason’ why the charge should be heard and determined summarily – ‘special reasons’ exception under s.10A Sentencing Act 1991 – application of s.23(3) of the Charter of Human Rights and Responsibilities Act 2006 – ‘young offender’ under s.32(2C) Sentencing Act 1991 – high threshold and heavy burden set by the legislature in s.356(6)(c)(iii) of the CYFA and reinforced by s.356(7) – application for summary jurisdiction refused.

Magistrate Stylianou
29 November 2018  

 DPP v JM [2018] VChC 5

Catchwords: Accused charged with being an accessory after the fact to murder, assault at common law and possessing a drug of dependence – application for uplift of the charges under s.356(3)(b) of the Children, Youth and Families Act 2005 – whether the charges are unsuitable by reason of exceptional circumstances to be heard and determined by the Children’s Court – prosecution submission that the offending of JM is inextricably linked with that of the principal offender – very different matters to be proved in respect of JM and co-accused – sentencing options available to the Children’s Court under the CYFA adequate to respond to JM’s alleged offending – application for uplift refused.

Magistrate Stylianou
1 November 2018 

CDPP v TK (a child) [2018] VChC 4

Catchwords: Accused pleaded guilty to charges pursuant to ss.477.2(1) and 478.1(1) of the Criminal Code Act 1995 (Cth) – subject offending involved unauthorised access to a large American corporation’s network – accused was aged between 16 and 17 years at the time of offending – charges filed with the Children’s Court before the accused turned 19 years old and subsequent reinstatement of charges – applicable law when sentencing children and young persons for Commonwealth offences – construction of s.20C of the Crimes Act 1914 (Cth) – use of “may” in s.20C is permissive and the Court may decide to sentence a child charged with aCommonwealth offence under the sentencing regime of the Crimes Act 1914 (Cth) orChildren, Youth and Families Act 2005 (Vic) (CYFA) – if the CYFA applies the Courtis not constrained to the extent that its provisions are incompatible with s.16A of theCrimes Act 1914 (Cth) – no prior criminal history, excellent prospects ofrehabilitation, early guilty plea, substantial co-operation with authorities – accusedsentenced to probation order for period just over eight months, without conviction.

Magistrate Stylianou
27 September 2018 

OPP v BC [2018] VChC 6

Catchwords: Bail application by child accused – charges including the offence of attempted murder – whether exceptional circumstances established – whether unacceptable risk – relevant circumstances surrounding BC’s application – bail granted.

Magistrate Gibson
27 June 2018 

 DPP v SI (a child) [2018] VChC 3

Catchwords: Accused charged with reckless conduct endangering life, reckless conduct endangering persons, assault on an emergency worker and unlicensed driving – lack of prior convictions – autism spectrum disorder – sentencing principles under the Children, Youth and Families Act 2005 – term of a youth supervision order under s387 of the Act.

Judge Amanda Chambers
14 March 2018

Victoria Police v FT [2018] VChC 2

Catchwords: Accused pleaded guilty to driving a motor vehicle with more than the prescribed concentration of alcohol under s 49(1)(f) of the Road Safety Act 1986 (RSA) and other offences under the Road Safety (Drivers) Regulations 2009 (Regulations) – mandatory penalties required for certain RSA offences, namely the s 49(1)(f) offence – construction of the Children, Youth and Families Act 2005 and RSA – having regard to the public policy principles underpinning the RSA and specific licensing regime in the RSA and Regulations – ruling that the mandatory provisions in the RSA apply to children and young people who have been found guilty in the Children’s Court of relevant road safety offences.

Magistrate Bowles
6 March 2018 

 Le v JA [2018] VChC 1

Catchwords: Accused charged with intentionally causing serious injury in circumstances of gross violence, robbery and other offences – application by Informant pursuant to s356(3)(b) of the Children, Youth and Families Act 2005 (Vic) to uplift matter – consideration of whether there are exceptional circumstances that warrant the Court refusing to hear the matter summarily – ruling that the matters relied upon by the applicant do constitute exceptional circumstances – matter fixed for committal hearing.

Judge Amanda Chambers
31 January 2018

DPP v A & Ors [2017] VChC 1

Catchwords: Accused respondents charged with armed robbery and other offences on jewellery store – application by DPP pursuant to s.356(3)(b) of the Children, Youth and Families Act (Vic) 2005 to uplift matter – consideration of whether there are exceptional circumstances that warrant the Court refusing to hear the matters summarily – Application granted in respect of one accused with the remaining applications refused.

Judge Amanda Chambers
14 March 2017 

DPP v SL [2016] VSC 714

Catchwords:– human rights of child defendant charged with serious crimes in superior court – attempted murder and other charges brought against child aged 15 years in Supreme Court of Victoria – plea of guilty – defendant in detention on remand – identifying suitable arrangements for child’s detention when at court and procedures for conduct of directions and sentencing hearings having regard to child’s age – segregating defendant as child in detention from adult prisoners when at court – avoiding intimidation, humiliation and distress and ensuring child’s effective participation in criminal process – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 17(2), 23(1),(2) and (3), 25(3), International Covenant on Civil and Political Rights arts 10(2)(b), 14(4) and 24(1), Convention on the Rights of the Child arts 37(c), 40(1) and (2).

BELL J
29 November 2016

DPP v E [2016] VChC 4

Catchwords: Accused charged with intentionally causing serious injury in circumstances of gross violence, reckless conduct endangering life, prohibited person use firearm, armed robbery - application by DPP pursuant to s.356(3)(b) of the Children, Youth and Families Act (Vic) 2005 to uplift matter - consideration of whether there are exceptional circumstances that warrant the Court refusing to hear the mater summarily - ruling that the matters relied upon by the applicant do constitute exceptional circumstances - Application granted.

Judge Amanda Chambers
18 August 2016

HWT v DM & Ors [2016] VChC 3

Catchwords: Media application to publish pixilated images pursuant to s534(1)(b) of the Children, Youth and Families Act 2005 - ruling.

Judge Amanda Chambers
19 July 2016

R v AH [2016] VChC 1

Catchwords: Criminal law - sentence - gross violence - summary jurisdiction - accused charged with causing serious injury intentionally in circumstances of gross violence pursuant to section 15A of the Crimes Act 1958 - absence of remorse - sentencing in the Children's Court.

Magistrate Lesley Fleming
2 February 2016

Victoria Police v CB [2010] VChC 3

Catchwords: Accused charged with intentionally cause serious injury and aggravated burglary - application by prosecution pursuant to s.356(3)(b) of Children, Youth and Families Act 2005 to conduct a committal proceeding - consideration of whether there are exceptional circumtances that warrant the court refusing to hear the matter summarily - ruling that there are exceptional circumstances - matter fixed for committal hearing.

Judge Paul Grant
24 June 2010

OPP v BW  [2010] VChC 2

Catchwords: Accused charged with rape, false imprisonment and other offences - three adult co-accused - application by OPP pursuant to s.356(3)(b) of Children, Youth and Families Act 2005 to conduct a committal proceeding - consideration of whether there are exceptional circumstances  that warrant the court refusing to hear the matter summarily - ruling that the matters relied upon by the prosecution do not constitute exceptional circumstances - matter fixed for summary hearing.

Judge Paul Grant
13 May 2010

Victoria Police v HW  [2010] VChC 1

Catchwords: Therapeutic Treatment Order (TTO) - orders to be made on related criminal proceedings where there is an application to extend TTO - interpretation of s.354(4) of Children, Youth and Families Act 2005.

Judge Paul Grant
2 February 2010

Victoria Police v MA [2009] VChC 7

Catchwords: Children's Court - Criminal Division - Sex Offenders Registration Act 2004 - Section 11 - requirements for child to be placed on Sex Offenders Register - Parliament's intentions regarding registration of juvenile sex offenders - non mandatory requirement - test to be applied - duration of registration.

Magistrate Jennifer Bowles
12 October 2009

R v M and others [2008] VChC 4

Catchwords: Criminal charges - Sentencing principles applicable in the Children's Court - plea of guilty to serious offences - lack of prior convictions - assessment of suitability for participation in MAPPS - differences between probation order and youth supervision order - whether order should be with or without conviction.

Judge Paul Grant
12 February 2008

HWT v AB [2008] VChC 3

Catchwords: Criminal charges - application to identify offender - s.534 Children, Youth and Families Act 2005 - ruling.

Judge Paul Grant
20 May 2008

R v P and others [2007] VChC 3

Catchwords: Criminal charges - sentencing principles applicable in the Children's Court - plea of guilty to serious offences - lack of prior convictions - assessment of suitability for participation in MAPPS - differences between probation order and youth supervision order - whether order should be with or without conviction.

Judge Paul Grant
5 November 2007