Application for Bail by AA
[2015] VSC 700
•8 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0173
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by AA |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 and 7 December 2015 |
DATE OF JUDGMENT: | 8 December 2015 |
CASE MAY BE CITED AS: | Application for Bail by AA |
MEDIUM NEUTRAL CITATION: | [2015] VSC 700 |
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CRIMINAL LAW – Bail – Applicant aged 17 – Show cause situation – Unacceptable risk of offending on bail – Bail Act 1977 (Vic) ss 4(2)(d), 4(3), 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | Victoria Legal Aid |
| For the Respondent | Mr C Gauld | Victoria Police |
HER HONOUR:
Background
This application for bail was made to this Court on an urgent basis at 9.05 am on the morning of Friday, 4 December 2015, by the filing of an affidavit of Sarah Wood, Victoria Legal Aid, in support of the application. The respondent’s affidavit in opposition to the application was filed at 1.44 pm.
I heard the application at 2.15 pm that day. After hearing submissions and evidence called by the applicant, I adjourned the matter until 12 pm on Monday, 7 December 2015, in order for the parties to obtain further instructions.
At 11.24 am on 7 December 2015, the respondent filed a further affidavit in opposition. At the start of the hearing at 12 pm, counsel for the applicant informed me that the applicant’s mother was due to give evidence, but was not present in court. She, together with the applicant’s uncle, was available to support the applicant after the luncheon adjournment. After an interpreter was arranged with the assistance of the registry, she was able to give evidence.
After hearing the parties’ submissions and evidence, I reserved my ruling to 11 am on Tuesday, 8 December 2015.
I have stated the above by way of background, and note that application has been conducted somewhat disjointedly.
The applicant, aged 17 (born 2 November 1998), is facing charges laid by Senior Constable Ben Hughes of Geelong police, including eight charges relating to the period of late September to October 2015 (the ‘first Hughes brief’).
He is currently remanded to 10 December 2015, having been refused bail on 30 November 2015 at Geelong Children’s Court.
The applicant has been in custody since 28 November 2015.
The first Hughes brief includes charges relating to an unprovoked assault allegedly committed by the applicant at an underage nightclub in Geelong on 18 September 2015, in which the victim, NC, received lacerations and swelling to his face. The applicant has made admissions to that assault.
The applicant was also charged as a joint offender with PP (born 2 June 2000) and JR (born 6 November 2000) in respect of a number of offences.
These include a burglary at 11 Colpin Avenue, Ballarat, at approximately 5:30 am on 14 October 2015, where the rear door of the home was forced open while the occupant of the premises slept. It is alleged that the three offenders ransacked the premises looking for car keys and then stole a black Audi Q5 car. Some days later, on 25 October 2015, the applicant was seen driving the Audi vehicle.
Further, police allege that in the early hours of the morning on 25 October 2015, the three youth offenders, acting together, broke into another residential premises at 9 Richmond Street, Geelong East, where they stole cash, a computer and keys to a Nissan Dualis car, which was also then driven away from the premises.
Police became suspicious when, at around 6.30 am that same day, they spotted three vehicles driving in tandem into a car parking area near Ceres. Police allege that the applicant was driving the Audi Q5, PP was driving the Nissan Dualis and JR was found driving a Toyota Land Cruiser, which had allegedly been stolen from Barwon Heads.
PP and JR were arrested at the scene but the applicant decamped from the Audi Q5 and fled on foot. He was soon located a short distance away. Police also allege that he was in possession of a small quantity of cannabis.
On interview, the applicant made partial admissions to the assault on NC and to an awareness that the Audi Q5 was a stolen vehicle but denied participating in the original burglary and theft of the Audi Q5. He also denied knowledge that he was in possession of cannabis.
The applicant was aged 16 on the date of arrest and his two co-accused were aged 15.
The applicant was bailed on 25 October 2015 by a police Sergeant at Geelong Police Station to attend court on 19 November 2015. He attended the Geelong Children’s Court on 19 November 2015, where his bail was extended and the matter was adjourned to 10 December 2015. Bail conditions included a static residency condition to reside with his mother at 8 Bartlett Court, Corio, non-association conditions regarding his two co-offenders, and a night-time curfew between 9 pm and 7 am.
The applicant had been previously dealt with in Geelong Children’s Court in September 2015 for possession of cannabis and theft and placed on a three-month good behavior bond without conviction. This charge of theft related to theft of petrol.
He was also dealt with at Geelong Children’s Court on 6 November 2014 on charges of burglary and criminal damage, for which he was released on an accountable undertaking for six months without conviction. The burglary related to breaking into a school portable classroom by smashing a window, disabling security cameras and searching for items to steal. The offence was detected through fingerprint evidence.
Further charges were laid by Senior Constable Ben Hughes on 27 November 2015 (the ‘second Hughes brief’). Police attended PP’s address at 32 Leander Street, Footscray, and arrested the applicant and PP. On interview, the applicant admitted to committing an aggravated burglary at 20 Inshore Drive, Torquay, earlier that day and led police to a Ford Falcon XR6 stolen from that address, but did not admit to any other offences. A Ford Territory also stolen from that address has not been recovered. Items stolen from a burglary in Lara and the burglary in Torquay were found at PP’s address at the time of the arrest.
The applicant is said to have breached his bail by the offences contained in the second Hughes Brief. He is alleged to have breached all three special conditions of bail. Apart from the charges which are alleged to have occurred on 5 July 2015 and 5 October 2015, all the charges laid in the second Hughes brief relate to offences which are alleged to have been committed after the applicant was first charged on 25 October 2015.
The second Hughes brief includes the following charges:
(a) Three counts of breach of bail on 27 November 2015;
(b) Aggravated burglary (person present) at 20 Inshore Drive, Torquay, on 27 November 2015;
(c) Car theft (Ford Falcon XR6) at 20 Inshore Drive, Torquay, on 27 November 2015;
(d) Car theft (Ford Territory) at 20 Inshore Drive, Torquay, on 27 November 2015;
(e) Unlicensed driving at Torquay on 27 November 2015;
(f) Commit indictable offence (burglary) whilst on bail at Torquay on 27 November 2015;
(g) Car theft (a Volvo) at Norlane on 24 November 2015. CCTV connected to the milk bar captured the applicant purchasing goods and then leaving to the nearby Volvo, which was then driven away. Police were notified of the presence of the Volvo due to publicity about that vehicle, which had been stolen during an aggravated burglary in Highton;
(h) Car theft (a Subaru) at Grovedale on 5 October 2015. CCTV captured the applicant at a service station where he was attempting to re-fuel the vehicle;
(i) Attempt to commit indictable offence at Grovedale (use of a stolen credit card) on 5 October 2015;
(j) Attempted theft of petrol from a BP service station at Grovedale on 5 October 2015;
(k) Burglary at 26 Great Lakes Drive, Lara, on 21 November 2015. This offence is alleged to have involved the applicant and his co-offenders acting together and forcing open a rear door to the premises, then stealing car keys and stealing a car pertaining to that address. The applicant’s image was captured on CCTV exiting a Mazda CX5 and entering the address;
(l) Car theft (Mazda 3) at 26 Great Lakes Drive, Lara, on 21 November 2015;
(m) Car theft (Mazda CX5) on 21 November 2015. This car is alleged to have been driven to the Lara premises having been stolen during an unsolved burglary committed in Ascot Vale at around 1 pm on the same day; and
(n) Theft of cash (a donation box) at McDonalds at Lovely Banks on 5 July 2015.
Application for bail was made before the Geelong Children’s Court on 30 November 2015, but bail was refused by the presiding Magistrate on the grounds that there was an unacceptable risk that the applicant would commit an offence whilst on bail, or endanger the safety and welfare of members of the public.
As a result, the applicant has been detained at the Parkville Youth Justice Precinct since his arrest on 27 November 2015. He is due to appear in the Geelong Children’s Court on 10 and 11 December 2015.
It is common ground that that applicant is in a ‘show cause’ circumstance. Pursuant to s 4(4) of the Bail Act 1977 (the ‘Act’), where an accused is charged with aggravated burglary under s 77 of the Crimes Act 1958 (Vic), or an indictable offence that is alleged to have been committed whilst at large awaiting trial for another indictable offence, a court is required to refuse bail unless the accused shows cause why his detention in custody is not justified.
Further, s 4(2)(d) of the Act provides that the court shall refuse bail if it is satisfied that there is an unacceptable risk that the accused, if released on bail, would commit an offence whilst on bail or endanger the safety or welfare of members of the public.
Section 4(3) of the Act sets out certain non-exhaustive considerations that the court must take into account in assessing whether the circumstances constitute an unacceptable risk.
Mr Pyne, appearing for the applicant, informed the Court that the applicant’s usual place of residence is with his mother and four of his siblings in Corio. His father had died in a car accident when the applicant was very young. The applicant’s siblings still living at home are Awer, Aleu, Mawien and Zanab, aged between 7 and 20. An older sister lives on her own.
The applicant was enrolled in year 11 in the CREATE alternative schooling program and attended by bus, although his attendance had fallen off this semester.
Mr Pyne called Timothy Solomon, a senior advice worker at Youth Justice in the Melbourne courts unit, to explain Youth Justice’s bail support program.
Mr Solomon had not met the applicant, but was aware that one of his colleagues, Ms Alford, had assessed the applicant as suitable for the program when interviewed on 30 November 2015.
The interview outcome was attached as Exhibit SPW-2 to the affidavit of Ms Sarah Wood, solicitor for the applicant. The interview outcome document, titled ‘Youth Justice Court Advice Service Assessment Guide (Supervised bail and deferral of sentence)’, stated that the applicant is a Sudanese Australian who had no present involvement with Youth Justice. He was assessed for supervised bail. He was reported as having no current Department of Justice involvement. He was said to have three brothers and two sisters, and to have been undertaking the CREATE educational program in year 11, and was not currently employed in any capacity. The report noted that the applicant had been trying to find a job.
The assessment suggested that Youth Justice could seek to assist his family to put appropriate boundaries in place and to support ongoing involvement in his education. Youth Justice could also provide drug and alcohol referral, if needed.
Mr Solomon said that, if placed on supervised bail, the applicant would be required to comply with all conditions specified by Youth Justice, and failure to attend appointments could result in breach action being taken. He would have the benefit of being managed through case management and would have a case worker appointed to him with a minimum of weekly appointments or more.
The applicant’s mother, Ms Catherine Akoon, and his maternal uncle, Mr Mayong (Chris) Akoon, gave evidence in support of bail. Unfortunately, they were unable to attend on Friday afternoon when the application commenced, and did not arrive until after the informant had given evidence on the morning of Monday, 7 December 2015. Therefore, they did not hear Senior Constable Hughes outlining his concerns to the Court.
The applicant’s mother has very limited English proficiency. Her native language is Dinka. After extensive efforts, facilitated by the Court registry, to obtain an interpreter for her, it was eventually possible to obtain audio-linked interpretation through Mr David Kuel.
In essence, she explained that she did attend the police station with her brother, Mr Akoon, on the first arrest and interview of her son, but was unable to attend the next time he was arrested, due to childcare responsibilities for her other children and a lack of transport. She was aware from the first arrest that he was not supposed to be going out at night with his friends because of his bail, but her appreciation of exactly what her son is alleged to have been doing was rather vague.
She indicated that if re-bailed, she would notify the police if she thought that her son had breached his bail. She would base this on whether he was absent when she awoke in the morning. Under cross-examination, she was unable to offer any reassurance regarding monitoring her son after her usual bedtime at 9 pm.
Mr Akoon gave evidence that he sponsored the migration of his sister, the applicant, and other family members in 2005 from a refugee camp in Kenya. He has been in Australia since 2001 and lived with his sister from 2005 until the end of 2013. He now has a wife and children of his own and lives in Tarneit near Werribee.
He believes that he is a mentor for his nephew and he has endeavoured to remain involved and supportive, but was shocked when he learned about the charges when he attended the first police interview with his sister at the time of the applicant’s first arrest.
He testified that he could attempt to monitor and support his nephew, despite living in Tarneit whilst the applicant lives in Corio, and despite his own study and family commitments. Mr Akoon impressed as being a responsible and caring person. He spoke fluent English and is currently completing an engineering degree at Deakin University.
Notwithstanding Mr Akoon’s obvious care for his nephew, it is concerning that no-one in the family, including Mr Akoon, intervened to seek help or take charge of the situation when the applicant was obviously absent from home for lengthy periods and breaching the conditions of his previous bail.
No family member has managed to visit the applicant, yet, during his period on remand.
Ms Diane Karevski, from Youth Justice, was also called on behalf of the applicant to reiterate the support available to the applicant if granted bail. She said that the applicant could attend Youth Justice appointments and would have a case worker appointed to him. There would be some monitoring of bail compliance, but there would be no capacity to monitor on weekends or outside office hours. However, if a family member reported a breach of conditions, Youth Justice would notify the authorities. She also gave evidence that the CREATE year 11 education program has finished for 2015.
Applicant’s submissions
The applicant’s arguments in favour of bail are that the applicant is experiencing detention at the Parkville Youth Justice Precinct for the first time and has a limited history of prior offending (although he has been dealt with for burglary in the past). He has now spent 11 days in custody.
He has never failed to appear on bail. He has a loving family and a home to go to.
He has been approved for supervised bail by Youth Justice and would potentially benefit from Youth Justice’s support and monitoring.
As a young person from a Sudanese background, he is potentially vulnerable in custody.
It was argued that continued custody might further expose him to an anti-social peer group, and that there may be delays in finalising his current charges.
Finally, it was argued that because of the sentencing principles of the Children, Youth and Families Act 2005 (Vic), it is unlikely that he will ultimately receive a custodial sentence for the combined groups of offences, so he may spend more time on remand than that to which he is ultimately sentenced.
The applicant submitted that bail should be granted with conditions similar to those previously imposed, but with an additional condition that the applicant obey the directions of Youth Justice.
Respondent’s submissions
Victoria Police opposed bail on the bases that the applicant had proved unwilling to abide by his bail conditions in the past, and posed a risk to the public by his continued offending. The informant, Senior Constable Hughes, was concerned that the applicant’s mother was unable to influence her son’s behaviour and failed to appreciate the seriousness of the charges that her son was facing. In his affidavit, the informant described the applicant’s demeanour as uncooperative.
The applicant’s offending was said to be escalating in seriousness. The respondent also alleged that much of the offending occurred in breach of a good behaviour bond imposed on 3 September 2015, and after having had bail formally extended at the Children's Court on 19 November 2015.
The informant also obtained admissions from the applicant that during one of the recent burglaries in Torquay, the applicant went from room to room, checking to see whether the occupants were likely to be at home and asleep. He only left when he saw an unmade bed and thought someone might be awake.
The informant said that the applicant was intentionally breaking into homes while persons were present, with the purpose of stealing the keys to cars that were parked at or near the premises.
The informant gave evidence that, although the applicant’s mother and a close male relative, Mr Akoon, attended at his request when the applicant was first arrested and interviewed, on his most recent arrest, no family member or relative attended to offer support to the applicant.
The informant described himself as being unable to be reassured that the applicant would abide by a night-time curfew or that family members would report a breach of bail. He stated that the applicant’s mother told him on the occasion of her son’s most recent arrest that her son had not been at home for the past two days and she did not know where he was.
He said the applicant had not been attending his classes for the past few weeks before his arrest on 27 November 2015.
The informant alleged that the accused is operating as part of a gang of 10 to 12 young offenders acting together to break into homes and steal cars. When police approached to do a licence check, these offenders typically fled from police at high speeds, and took advantage of the current non-pursuit policy of Victoria Police. It is alleged that five youths from this gang were arrested on 4 December 2015, with two offenders remanded in custody and three offenders released on bail. Those who were released on bail were not in a ‘show cause’ position.
Presently, the co-accused on the applicant’s charges, PP, is remanded without having applied for bail, and JR is on bail.
The gang members frequently posted Facebook updates which included photos of themselves posing with stolen cars, taunting police over the non-pursuit policy with comments such as, ‘You too slow’. The informant said in evidence that he had seen the applicant’s photograph posing with gang members on posts he had viewed on Facebook. The photographs were timed in the night-time or early hours of the morning. The informant gave evidence of the culture of the gang, which boasts strong anti-police sentiments.
The black Audi car, in which the applicant was found on 25 October 2015, had been driven by an unidentified offender or offenders in the period between when it was stolen, and then subsequently located, evading police on 10 occasions by giving chase.
The primary concern is for the safety of the public in light of the risk of road trauma eventuating from continued offending by the applicant, whilst driving without a licence in stolen cars.
The respondent highlighted police concerns by reference to the example of a recent fatal accident resulting from youths fleeing from police in a stolen car in Taylors Lakes.
Another concern was the impact on victims of home intrusions when entry is effected whilst persons are home. This had led to victims feeling unsafe in their own homes.
Relevant considérations
In Robinson v The Queen,[1] Maxwell P and Redlich JA said:
[T]he judge hearing a bail application under s 4(4) will be bound to address issues of unacceptable risk, whether the ‘one-step’ or ‘two-step’ approach is adopted. In a case where the prosecution asserts that one of the contemplated risks exist, and the accused is obliged to show cause why his/her detention in custody is not justified, there will be a single inquiry into risk.[2]
[1][2015] VSCA 161 [42].
[2]Ibid [42].
Priest JA said:[3]
It is difficult to imagine a situation, however, where an accused person charged with an offence falling within s 4(4)(ca) realistically could ever ‘show cause why his detention is not justified’ in circumstances where the court is satisfied that the person poses an unacceptable risk within s 4(2)(d)(i).
[3]Ibid [81].
His Honour went on to refer to Redlich J’s observation in Haidy v DPP [2004] VSC 247:
What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk.[4]
[4]Ibid [83].
In considering this application, I am conscious of the fact that the applicant is a young person and as such, subject to the principles set out in the Children, Youth and Families Act 2005 (Vic).
Section 346(3) of the Children, Youth and Families Act 2005 (Vic) provides that if a child is remanded in custody, the period of remand is restricted to 21 days.
This is the applicant’s first period in custody. He is potentially vulnerable in his current placement.
Even if he is convicted of the offences with which he is charged, there is a prospect that he will be assessed as suitable to be placed on an order that allowed him to remain in the community subject to a sentencing disposition involving supervision and monitoring. However, I cannot gainsay what that disposition might be if he were convicted of all, or even the majority, of the charges he currently faces. They are serious offences and the harm caused to victims is substantial.
When previously bailed, the applicant did not have the support of the Youth Justice bail support program. Indeed, it appears that, although conditions were placed on him when he was originally bailed by police, there was very little put in place to ensure supervision and monitoring of the applicant and support for his family.
Nevertheless, I am quite satisfied that the applicant himself knew what his responsibilities were when he was placed on bail after the October arrest. He speaks fluent English and had his uncle with him when his bail was explained to him.
The applicant does not appear to have an entrenched drug or alcohol problem. It appears that he is committing offences within the peer group setting, perhaps for peer approval.
I am told by Mr Pyne, who appears on his behalf, that a number of the offences will be dealt with by pleas of guilty, but a number of the outstanding charges will be contested. The contested charges may not be able to be heard for some time.
Conclusion
I have found this application to be finely balanced, chiefly because of the age of the applicant and the fact that this is his first period in custody, despite not having been engaged in court ordered youth support services in the past.
Unfortunately, I am not satisfied that the risk that the applicant will re-offend in a similar manner is capable of being mediated to an acceptable level by the measures suggested by Mr Pyne. The offences are brazen, and difficult to police. The applicant’s mother and uncle are both well-meaning but have thus far proven ineffective in influencing the applicant’s behaviour.
The applicant has re-offended despite the salutary experience of having his mother and uncle attend Geelong police station when he was first arrested for a concerning array of charges.
The charges involve a concerted participation in joint offending by the applicant and his friends, with multiple vehicles being used in tandem to commit further offences of burglary and car theft over a fairly widespread geographical area. The applicant will likely need more structured supervision and support than is currently available in order to reform.
I therefore find that cause has not been shown why the applicant’s detention is not justified.
My decision is limited to the applicant’s position as it stands today. I note that he will next appear back before the Geelong Children’s Court on 10 December this year.
His bail prospects may alter favourably if some of the current charges are disposed of in the Children's Court in the near future.
Bail is refused.
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