Application for Bail by Co and Anor
[2022] VSC 138
•11 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0052
S ECR 2022 0058
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by CO | Applicant |
| – and – | |
| IN THE MATTER of an application for bail by IJ | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 March 2022 |
DATE OF JUDGMENT: | 11 March 2022 |
CASE MAY BE CITED AS: | Application for Bail by CO and Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 138 |
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CRIMINAL LAW – Bail – Child applicants – Co-accused – Applications heard together –Applicants charged with aggravated home invasion and other charges – One applicant is Aboriginal – Two other co-accused already granted bail – Whether exceptional circumstances – Whether unacceptable risk – Bail Act 1977 – ss 1B, 3A, 3B, 3AAA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant IJ | Mr J Barreiro | Adrian Paull Solicitors |
| For the Applicant CO | Mr M Sturges | Criminal Lawyers Geelong |
| For the Respondent | Mr B Nibbs | Office of Public Prosecutions |
HER HONOUR:
Introduction
In this matter, police members Detective Senior Constable Sims and Senior Constable Ashton have charged four child offenders in relation to an alleged home invasion that occurred on 9 February 2022 in Colac. The offenders were charged as follows (‘Ashton charges’).
The applicant IJ (age 16) was charged with:
(a) Aggravated Home Invasion;[1]
[1]Section 77B of the Crimes Act 1958 (Vic).
(b) Threat to Inflict Serious Injury[2] (2 charges);
[2]Section 21 of the Crimes Act 1958 (Vic).
(c) Burglary;[3]
[3]Section 76 of the Crimes Act 1958 (Vic).
(d) Intentionally Cause Injury;[4]
[4]Section 18 of the Crimes Act 1958 (Vic).
(e) Assault in Company;[5]
[5]Section 23 Summary Offences Act 1966 (Vic)
(f) Criminal Damage;[6]
(g) Carry Dangerous Article;[7] and
(h) Commit indicatable offence while on bail.[8]
[6]Section 197 of the Crimes Act 1958 (Vic).
[7]Section 7 of the Control of Weapons Act 1990 (Vic).
[8]Section 30B of the Bail Act 1977 (Vic).
The applicant CO (age 17) was charged with:
(a) Aggravated Home Invasion;[9]
[9]Section 77B of the Crimes Act 1958 (Vic).
(b) Burglary;[10]
[10]Section 76 of the Crimes Act 1958 (Vic).
(c) Intentionally Cause Injury; [11]
[11]Section 18 of the Crimes Act 1958 (Vic).
(d) Assault with weapon;[12]
[12]Section 23 Summary Offences Act 1966 (Vic).
(e) Criminal Damage;[13]
[13]Section 77B of the Crimes Act 1958 (Vic).
(f) Carry Dangerous Article;[14]
(g) Contravene personal safety intervention order (‘PSIO’);[15] and
(h) Commit indicatable offence while on bail. [16]
[14]Section 7 of the Control of Weapons Act 1990 (Vic).
[15]Section 100(2) of the Personal Safety Intervention Order Act 2020.
[16]Section 30B of the Bail Act 1977 (Vic).
ER (age 17) was charged with:
(a) Aggravated Home Invasion;[17]
[17]Section 77B of the Crimes Act 1958 (Vic).
(b) Threat to Inflict Serious Injury[18] (2 charges);
[18]Section 21 of the Crimes Act 1958 (Vic).
(c) Burglary[19] (to be amended to aggravated burglary);
[19]Section 76 of the Crimes Act 1958 (Vic).
(d) Unlawful Assault;
(e) Criminal Damage; and
(f) Intentionally Cause Injury.
ND (age 15) was charged with:
(a) Aggravated Home Invasion (Assault) Offensive Weapon;
(b) Enter Building to Commit Offence – Assault;
(c) Intentionally Cause Injury;
(d) Assault with weapon;
(e) Criminal Damage; and
(f) Carry Dangerous Article (crowbar and knife).
This application for bail concerns the applicants CO and IJ.
Both applicants were on bail for other offences at the time of the offending as discussed further below.
It should be noted that of the four accused, ER and ND have already been granted bail. ER was granted bail by Kaye JA of this Court on 25 February 2022. ND was granted bail in Geelong Children’s Court on 9 February 2022. ER is CO’s step-brother.
Summary of the alleged offending
There are three complainants in this matter, JJ (who is IJ’s brother), MM and Mr Tyson Norman. The offences which are the subject of the abovementioned charges are alleged to have taken place in the home of Mr Norman in Colac. On 8 February 2022 the female complainant MM and Mr Norman were home with two other male persons, one of whom was JJ.
There is a history of animosity between IJ and his brother JJ, as well as between CO and MM.
The circumstances surrounding the applicant’s alleged offending on 9 February 2022 were set out by Kaye JA in his Honour’s reasons for granting bail to the applicant’s co-accused ER.[20] I adopt the following factual summary.
[12] […] The offences are alleged to have taken place in the home of Mr Tyson Norman in Colac.
[13] On that evening, the female complainant was at Mr Norman’s home with two other male persons, one of whom was a brother of the co–offender IJ. During the course of the evening, there were verbal arguments between IJ and his brother on social media.
At about midnight on 8 February, the two male friends of the complainant left the premises, leaving the complainant and Mr Norman there. Shortly after midnight, on 9 February, Mr Norman received a telephone call from the co–offender IJ, who yelled at him and made threats to physically harm Norman, the complainant and IJ’s brother. He threatened to assault them with crowbars. In the meantime, the complainant telephoned her mother to come and collect her.
[14] At approximately 1:10 am, the applicant and his three co–accused arrived at the premises, carrying a knife and two crowbars. At that time, Norman was out the front of the premises with the complainant. The applicant and his three co–offenders ran past Norman into the house through the unlocked door, which they locked, preventing Norman from re–entering it. The complainant had run back inside the house and hidden in the toilet. She sent a text message on her mobile phone to her mother asking her to call the police. The four offenders, including the applicant, kicked the toilet door until it broke off its hinges. The co–accused CO then physically assaulted the complainant with the crowbar, striking her a number of times and stomping on her head. She then yelled at the complainant, demanding that the complainant give her the complainant’s leather handbag which was hanging around her neck. CO snatched the bag from the complainant. At that point, Mr Norman had re–entered the property and tried to intervene in the assault, but when he did so, he was he was threatened by CO. All four accused then ran out the front door of the house and passed Norman into Morrison Street. They were arrested shortly after departing from the premises.
[20]Re ER [2022] VSC 88.
As a result of the incident, MM sustained grazing to her head and face. She was taken to Colac Hospital for a precautionary examination.
Two of the accused were located by police in a nearby street and a knife and crowbar were seized from them.
During subsequent interview, IJ admitted to going to TN’s house with the co-accused. He acknowledged that they were armed with crowbars and a knife at the time. IJ said he went to the house looking for his brother, but was told by TN that his brother had left. He gave an account of being admitted to the house and of an incident unfolding after entry.
CO was arrested and answered “no comment” during an interview.
All accused were charged and remanded in custody.
IJ’s Outstanding Matters
At the time of the alleged offending on 9 February 2022, IJ was on bail on three separate sets of charges. The informants in those matters are First Constable Austin (‘the August 2021 Austin charges’), Constable Lister (‘the Lister charges’) and First Constable Austin (‘the January 2022 Austin charges’).
The August 2021 Austin charges include:
(a) Theft (of a bicycle);[21]
(b) Attempted Theft from Motor Vehicle;[22] and
(c) Interfere with Motor Vehicle.[23]
[21]Pursuant to s 74 of the Crimes Act 1958 (Vic).
[22]Pursuant to s 321M of the Crimes Act 1958 (Vic) on 26 August 2021.
[23]Pursuant to s 70(1) Road Safety Act 1986 (Vic) on 26 August 2021.
The Lister charges include:
(a) Possess drug of dependence (Seroquel);[24] and
(b) Possess drug of dependence (Lyrica).[25]
[24]Pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) on 14 September 2021.
[25]Pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) on 14 September 2021.
The January 2022 Austin charges are two counts of failing to answer bail on 10 January 2022.
CO’s Outstanding charges
At the time of the alleged offending, CO was on bail on three separate sets of charges. The informants in those matters are Informant Emond (‘Emond charge’), Informant Convey (‘Convey charges’) and Informant Austin (‘Austin Charges’),
The Emond charge consists of one charge of light fire during prohibited period. This offending is alleged to have arisen from a fire lit by CO at 6:20pm on 27 February 2020. Police attended the applicant’s house in Colac to assist fire services with a fire that had been lit in the backyard of the property. The fire was approximately one metre high and wide, and was fuelled by tree branches, household items and an aerosol can. It had been lit during a declared period of fire danger for the area, although no total fire ban was in place on that particular day, and the maximum temperature was less than 19 degrees Celsius. Police spoke with CO who made admissions to lighting the fire. She was aged 15 at the time.
The Convey charges include:
(a) Recklessly cause injury (offence date 25 April 2021);
(b) Unlawful Assault (in company) (offence date 25 April 2021);
(c) Unlawful Assault (offence date 25 April 2021); and
(d) Throw Missile ( 25 April 2021).
The allegations in the Convey matter are as follows: The complainant lives in Colac with her two children T and J. CO was previously friends with T. The co-accused is one Paula D who was also previously friendly with the complainant. The nature of the relationship between CO and co-accused is unclear. It is alleged that CO and Paula D stood in the complainant’s driveway, preventing her from leaving her home in her car. CO hit the complainant across the face when asked to leave. Paula D grabbed the complainant’s hair and the complainant was dragged to the ground. Paula D also bit the complainant. She was further assaulted whilst on the ground. The complainant’s children, who had been inside with a friend, exited the house and attempted to intervene. As the co-accused was driving away, bottles were thrown in the direction of the occupants of the other persons present at the scene. The complainant sustained a lump on her forehead and a bite mark but refused medical treatment.
The Austin charges consist of one charge of fail to answer bail on 10 January 2022 at the Colac Children’s Court.
Procedural History of IJ & CO
After IJ and CO were arrested, charged and remanded in custody on the Ashton charges, each of them made an application for bail at the Geelong Children's Court on 10 February 2022. Magistrate Holzer refused both applications on the grounds that the exceptional circumstances threshold was not met and that both applicants posed an unacceptable risk if they were to be granted bail. His Honour revoked bail for IJ and CO’s other matters on this date also.
Applicable Law
I refer to and adopt the Kaye JA’s summary of the applicable legal principles in this case as set out in his Honour’s ruling in relation to ER,[26] as follows:
As the applicant has been charged with the offence of aggravated home invasion, he is required, under s 4AA of the Bail Act 1977, to establish the existence of exceptional circumstances that justify the grant of bail. Section 4A(3) provides that in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. Section 3AAA prescribes a non–exhaustive list of the surrounding circumstances which are required to be taken into account.
28 If the Court is satisfied that the applicant has established the requisite exceptional circumstances, s 4D and s 4E of the Act provide that the application for bail must be refused, if the Court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would (inter alia) commit further offences. If the applicant establishes the existence of exceptional circumstances, the prosecution bears the burden of satisfying the Court as to the existence of that unacceptable risk.[27]
29 In the present case, the respondent contends that the applicant has failed to establish the requisite exceptional circumstances. It further contends that if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence.
30 The content of the term ‘exceptional circumstances’ has been discussed in a number of decisions of this Court. In effect, the applicant must establish circumstances that are ‘right out of the ordinary’, so that they are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail.[28] It is well established that exceptional circumstances may comprise a combination of circumstances which, individually, might not themselves be considered to be exceptional. One matter, that is commonly regarded as important in determining whether exceptional circumstances have been established, is the presence or absence of factors which might point to the applicant presenting as an unacceptable risk in any of the ways specified in s 4E(1) of the Bail Act.[29]
31 It is well accepted that the youth of an applicant may be a significant factor to be taken into account in determining whether exceptional circumstances have been established.[30] Similarly, in determining whether the risk of an applicant reoffending, while on bail, is unacceptable, the young age and attendant circumstances of the applicant are regarded as important considerations.[31]
32 In that respect, as the applicant is a child, s 3B of the Bail Act is relevant to the application. Section 3B(1) provides that in making a determination in relation to a child, it is necessary to take into account (inter alia) the following matters: the need to consider all other options before remanding the child in custody; the need to strengthen and preserve the relationship between the child and the child’s family; the desirability of allowing the living arrangements of the child to continue without interruption; the desirability of allowing the education or training of the child to continue without interruption; and the need to minimise the stigma to the child resulting from being remanded in custody. Section 3B(2) provides that in making a determination in relation to a child, it is necessary to take into account any recommendation or information contained in a report provided by a bail support service.[32]
[26][2022] VSC 88.
[27]Citing Bail Act 1977 s 4D(2).
[28]Citing: DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
[29]Citing: Re Gloury–Hyde [2018] VSC 393, [30] (Priest JA).
[30]Citing: Re JO [2018] VSC 438, [14] (T Forrest J); Re JF [2020] VSC 250, [32] (Tinney J); Re Johnson [2021] VSC 800, [63] (Lasry J).
[31]Citing: HA v The Queen [2021] VSCA 64, [6], [73] (Maxwell P and Kaye JA); Re Andrew [2022] VSC 46, [25] (Kaye JA).
[32][2022] VSC 88, [27]-[32].
In relation to CO, I also note that s 3A applies to her application because she is Aboriginal. Section 3A of the Act requires the Court to take into account any issues that arise due to a person’s Aboriginality in its determination under the Act. In that respect, I note that s 3A was added to the Act in 2021, in response to recommendations from the Victorian Law Reform Commission. In the second reading speech for the amending act,[33] the responsible minister stated that ‘the VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system…’[34]
[33]The Bail Amendment Act.
[34]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007), cited by Bell J in Re SE.
IJ’s Personal Circumstances
The Applicant is 16 years old. His father passed away when he was 18 months old and his mother married his father’s brother whom she continues to be in a relationship with. The applicant reports that [REDACTED]. The applicant reports he has been couch surfing since around the age of 12 and has lived for a period of two years with his girlfriend’s family in Colac. His girlfriend is the co-offender CO. Another co-accused ER also resided at this address. The Youth Justice (‘YJ’) Bail Service Report (‘YJ Report’) noted that there have been nine previous reports to child protection in relation to IJ.
IJ’s substance abuse history
IJ reports that illicit drug use has been an issue and reports being introduced to ‘pills’ (including diazepam and oxycodone) at age 11. Prior to his arrest he reported that he was regularly using cannabis, Seroquel (an anti-psychotic) and Lyrica. He stated that he is motivated to remain abstinent from substance use when he returns to the community as he considers that substance abuse is a factor that led to his offending behaviour.
IJ’s Parkville College Report
A letter prepared by Casey N, IJ’s VCAL teacher, was provided to the Court.[35] Casey N reported that during his time in juvenile custody IJ had engaged well with his VCAL literacy classes, participating in group discussions and completing written tasks. Casey N noted that IJ had made the most of every opportunity to undertake work related professional development during his stay and had completed his construction induction training as well as his food safety certification, prepared a professional resume, and was about to complete his online learners permit course.
[35]Dated 10 March 2022.
Proposed bail plan for IJ
The YJ Report noted that if IJ was released from custody, Syndi M and her partner would be able to provide accommodation and paid employment to the applicant on their 600 acre cattle farm outside of Colac, if IJ does not wish to pursue further education. The YJ report noted that child protection have assessed Syndi M and her partner and they have been approved to provide accommodation and support to IJ. IJ is reported to be excited at the prospect of being able to live with Syndi M and her partner whom he considers to be a positive support. IJ was also in the process of enrolling in Foundation VCAL at South West TAFE in Colac as could be an alternative to or supplement his employment available to him through Syndi M.
IJ has indicated his preference was to begin employment and explore a VCAL program at South West TAFE in Colac.
If IJ decides he does not wish to continue with employment he would be able to return to the GOALS program (an adjunct of [Redacted] Secondary College) which he remains enrolled in.
Syndi M gave evidence at the hearing and confirmed she ran a beef cattle farm in [Redacted] about 30 minutes out of Colac, with her partner. Syndi M met IJ through CO and CO’s mother. IJ has been out to the property for camping trips before and has helped by chopping wood.
Syndi M confirmed she was aware of the nature of the charges IJ faces, and that they involve an allegation that IJ had entered a property while armed and that a person was assaulted. She was aware that if bailed, he would be subject to strict conditions. She confirmed she was happy to have IJ live with her if granted bail.
She described IJ as ‘a lovely kid’ who has not had many good opportunities over the years. She said she understood how important this point in IJ’s life was and said she wanted him to succeed and to find a better path. While on bail, IJ would work on the farm with her and her partner. She said they live very close to the Otway forests, where there are mountain biking and hiking trails IJ could explore with her. She understood he would likely be subject to a curfew condition if bailed. She told the Court she would notify police of any breaches of bail she became aware of. She considered she would need to work together with other support services, and with child protection and YJ , to ensure IJ’s compliance.
Syndi M said she had had lots of phone contact with YJ recently and child protection had attended her home to check its suitability. She was aware that it was possible that IJ could be living at her property for up to a year. She confirmed she and her partner wanted to assist IJ and that they had the capacity to do so.
IJ addressed the Court directly during the hearing. He confirmed he was looking forward to living with Syndi M and her partner. He explained he used to go to the farm almost every weekend prior to being arrested, assisting with animals and chopping wood. He understood he would be subject to strict conditions if granted bail and he confirmed he would comply with those conditions.
Submissions advanced on behalf of IJ
IJ relies on a combination of factors in seeking to establish that exceptional circumstances exist to justify the grant of bail.
Mr Barreiro for IJ conceded the allegations against IJ were serious, and that the prosecution case was not weak. However, given IJ’s lack of prior history, a custodial sentence was not inevitable even if all of the charges were made out. He submitted that it might be difficult, in the circumstances, for the Children’s Court to find that there were no viable alternatives to detention.[36]
[36]He cited the case of HA v The Queen [2021] VSCA 64.
Mr Barreiro submitted that IJ may spend more than 12 months on remand awaiting trial if bail is not granted earlier. Tending against a future sentence of detention was the applicant's lack of criminal history, together with his youth and personal circumstances.
The applicant is currently in custody for the first time. Mr Barreiro submitted that the longer he remains in custody, the greater the risk of associated stigma when he returned to his rural community. IJ is a vulnerable young person and further imprisonment risks bringing him under the influence of negative peers. It was noted that IJ had already been assaulted by another young person in custody, resulting in injuries to his legs and face. In the YJ report dated 1 March 2021, the writer noted that:
[Redacted]In contrast to the prison environment Mr Barreiro submitted that the bail proposal for IJ to live with Syndi M was a positive step insofar as it would keep him busy and provide him with stability that he has not had for a number of years.
Mr Barreiro submitted that IJ has been assessed as suitable for the YJ Supervised Bail Program. The applicant has never before had the opportunity to engage with YJ and YJ notes that the applicant also has many factors favouring bail compliance, and is enthusiastic about the bail proposal put forward on his behalf.
Mr Barreiro pointed out that the applicant is a child and, pursuant to s 3B of the Act, the court must accordingly take into account the desirability of allowing IJ’s education, training or employment to continue without interruption or disturbance, the need to minimise the stigma to IJ resulting from being remanded in custody as well as the likely sentence should he be found guilty of the offences charged.
In addition to IJ's special status as a child, it was noted that, at the time the application was filed, he was undergoing assessment for possible depression and anxiety, further compounding his vulnerability. IJ previously engaged with Colac Youth Hub for treatment of depression, but disengaged from the service, as he did not find it beneficial. YJ informed the Court that if IJ was granted bail, his case manager would encourage him to reengage with this service.
Mr Barreiro submitted that his client understood the Court might impose a condition preventing him from having any contact with CO, who is still his girlfriend. However Mr Barreiro noted that while his client would adhere to the conditions of bail, it was submitted that mandating the separation of a couple by virtue of bail conditions was unnecessarily harsh in circumstances in which (beyond the alleged offence) there was no evidence they we committing crimes together.
Regarding unacceptable risk, Mr Barreiro submitted that IJ would be residing in a rural location, approximately 20 minutes away from Colac, where the alleged offending occurred and that the routine of working on the cattle farm would provide limited opportunity to further offend or to endanger the safety of others.
Mr Barreiro acknowledged that IJ is alleged to have committed offences while on bail however he noted the salutary impact of being in custody for the first time was likely to act as a "wake up call".
CO’s Personal Circumstances
CO is a 17 year old Aboriginal child. [Redacted] She identifies as an Aboriginal person through her paternal side and she has cultural links to [Redacted]. Her father passed away in North Queensland 18 months ago. She only met her father on one occasion before his death. Before being remanded in custody she was living at the family home in [Redacted]. She has a history of substance abuse and poor mental health. Poor mental health has been an issue for the applicant since she was quite young and has included [Redacted]. The applicant has also been inclined to drink alcohol from a young age and prior to being remanded in custody was abusing prescription medication.
CO’s previous court record has only involved being prosecuted in the local Magistrates’ Court on 24 June 2019 for offences of using threatening words in a public place, using a carriage service to menace, assault police officer (two charges) and being drunk and disorderly in a public place. She was released on a good behaviour bond which she successfully complied with. She was discharged from the bond on the 2 March 2020.
Bail Proposal for CO
YJ provided a report assessing CO’s bail prospects and support her being granted bail.
It is proposed that if CO were granted bail she would live at a new address with her sister Emily R in a small rural town in Western Victoria within ten minutes’ drive from Colac. She would have her own room at this address and her brother (who lives locally) could assist her with transport to and from Colac.
CO attends a school proximate to the proposed bail address and if she were granted bail it is proposed that she would return to this learning environment. The complainant in the Ashton matter attends the same school. YJ discussed this scenario with Mr Michael M who has indicated that the complainant only engages with the school remotely so there would be no contact with her at school.
Emily R gave evidence at the hearing. She confirmed that if bailed, CO could live with her and her 10 month old son at her rental property on the outskirts of Colac about a 10 minute drive (or 45 minute walk) away from the town centre. The home has three bedrooms, and CO would have her own, fully furnished bedroom at the home. Emily R does not drive. She explained that CO’s youth worker Michael M could assist with driving her to school. In addition, Emily R’s former partner and father of her child, Sam K, and CO’s older brother could also assist with transport. Emily R explained that she and Sam K parted ways on amicable terms and he attends her home almost daily with his other children to assist with their infant son. CO has met Emily R’s infant son and Emily R described CO as one of her son’s favourite aunts.
Emily R knew the nature of the charges against CO. She understood that CO suffered from mental health issues and had a hard time with the recent loss of her father. She said she was committed to assisting her sister to attending her appointments and confirmed she could live with her as long as was needed. Emily R understood that if bailed, CO would be subject to several conditions including a possible curfew and non-association conditions. She said she would not tolerate bad behaviour and if she became aware that CO had breached any conditions of her bail, she would notify police and YJ workers.
CO is enrolled at [Redacted] in Colac, and is able to attend there four days per week if bail is granted. Michael M, a youth worker at [Redacted] gave evidence at the hearing. Mr M explained that his school works with students who do not feel comfortable at mainstream schools, either because of anxiety, trauma or other reasons. The service collects the young people each day, provides breakfast, works with them in various learning areas, engages them in physical exercise, and looks after their wellbeing (which is a focus for their service). From the week following the hearing, that service would be running for five days per week between 9:30am to between 2 and 2:30pm each day. There are currently 25 young people engaged in the program. There will be, from next week, three youth workers working with the young people as well as three teachers. The service split the young people into two groups, a junior and a senior group. CO would be in the senior group, working towards her VCAL certificate.
Mr M confirmed he is aware of the general nature of the charges CO is facing. He was also aware that ER and ND were co-accused and he knows both boys. He confirmed they both attend St Josephs. He also confirmed he knows ER is CO’s brother. He explained that ND and ER are both in the senior class and currently attend classes alongside one another. Mr M did not hold any concerns with CO, ND and ER being in the same learning environment. He felt comfortable the staff could make that situation work smoothly. At present, the service collect and drop off ER and ND separately and they make sure there is no discussion about events within the group. The complainant in this matter also attends the school, but Mr M explained she is in the junior group and would not be in the same group as CO, ND or ER. She would also be attending a different site for her schooling and at present prefers to work from home, which is an option for young people at [Redacted].
The author of the YJ report dated 10 March 2022, Ms Rebecca Miller, also gave evidence at the hearing in this matter. She is the Koori Intensive Support Worker for YJ in Geelong. Ms Miller said she had spoken regularly with the custody staff supervising CO while she has been on remand. They have confirmed CO has behaved well whilst on remand and has not had any issues with other young people in custody. She has participated in schooling and drug and alcohol counselling. She has also been liaising with the Aboriginal Liaison Officer whilst in custody.
Ms Miller has spoken with Emily R, and she does not hold any concerns about the proposed bail address. Ms Miller has also spoken with Child Protection about CO’s history. The are no active relevant child protection orders so they did not discuss the proposed bail address. If CO is granted bail, Ms Miller confirmed that YJ have arranged an intake appointment for drug and alcohol counselling, and an appointment with a GP so CO can obtain a mental health care plan. A referral has been made to an Aboriginal Justice Worker at the Wathaurong Aboriginal Co-Operative to provide culturally-specific support. Ms Miller is based in Geelong, and would have twice weekly contact with CO if bailed; once face to face, and once over the phone. Ms Miller would emphasise the importance of CO not having any contact with the complainant and complying with her bail conditions. Ms Miller confirmed she would contact the informant if she became aware of any bail breaches.
Submissions advanced on behalf of CO
CO relies on a combination of factors to demonstrate the existence of exceptional circumstances justifying the grant of bail. Mr Sturges, for CO, conceded the alleged offending which led to the Ashton charges was serious and that it is was not a weak prosecution case. Regarding the Convey matter, it was submitted that whilst the incident also involved serious offending; being an assault on the complainant outside her home, the co-accused in that matter is an adult in her forties, and CO may have been manipulated. It was submitted that the allegations in the Emond matter do not reflect a serious example of the offence charged.
Mr Sturges conceded that CO is currently facing a charge of failing to answer bail, and was on bail on other matters at the time of the alleged offending in the Ashton matter however he emphasised that this was CO’s first time in custody and she has a very limited criminal history.
Mr Sturges noted that because the applicant is an Aboriginal child the considerations under ss 3A and 3B of the Act apply. It was further submitted that, in addition to the applicant’s vulnerabilities as a child and Aboriginal person, she was particularly vulnerable due [Redacted]. YJ has proposed a number of specialist services to address these issues if bail was granted including; an Aboriginal YJ worker to link the applicant in with culturally appropriate supports, services and cultural mentoring; a General Practitioner to obtain a mental health care plan and referral to a private psychologist to address mental health issues including anger management; and an appointment with an alcohol and other drug clinician.
Mr Sturges noted that there was likely to be significant delay before a final hearing of the matter and in the absence of significant prior convictions, even if the offences are found proven, it was likely that if bail was not granted the time CO spent on remand could eclipse the sentence attracted by the charges. Mr Sturges noted that a term of detention was an option of last resort and that it was not the only option available to the sentencing court.
Regarding risk, Mr Sturges conceded there was some risk attached to the granting of bail due to CO’s anger management issues and other behavioural problems however, any risk could be moderated to an acceptable level through the imposition of appropriate bail conditions. This included a static residence, a curfew, a carefully crafted non-association condition prohibiting any contact with her co-accused other than in the context of attendance at school.
CO addressed the Court directly at the hearing and confirmed that she understood the significance of the offer of accommodation and support from her step-sister.
Submissions on behalf of the respondent
Both applications for bail were opposed by the respondent. At the hearing Mr Nibbs for the respondent conceded that it was difficult to argue against exceptional circumstances having been made out by both of the applicants however the respondent opposed bail on the grounds that if released on bail there was an unacceptable risk the applicant would commit an offence of bail, which carries an inherent risk of endangering the safety and welfare of the public. In support of this position the respondent relied on the following circumstances:
·The sequence and escalation of the alleged offending;
·The strength of the prosecution case;
·The seriousness of the alleged offending; noting that four offenders, 3 of whom were armed with weapons, entered a house with intent to assault;
·If found guilty of the offence of aggravated home invasion a period of detention was, in the respondent’s submission, the most likely sentence;
·Neither applicant has complied with conditions of earlier bail as they were both on three sets of bail at the time the Ashton charges were alleged to have occurred
·Mr Nibbs drew the court’s attention to the ruling of Kaye JA regarding ER, in which his Honour commented that if ER had been 18 years old, bail would have been refused.
Alternatively, if the Court were not satisfied the applicants posed an unacceptable risk the respondent’s position was that the following conditions ought to be imposed: static residence, a curfew, non-association with co-accused or witnesses, complying with YJ and not leaving the State of Victoria.
Analysis & Conclusion
Ultimately, the respondent did not dispute that exceptional circumstances could be made out on behalf of IJ and CO for much the same reasons as was found by Kaye JA regarding ER. I agree that exceptional circumstances can be made out for each of them despite the serious nature of the 9 February allegations and the strength of the prosecution case.
IJ is still a child, and was only 16 years of age at the time of the alleged offending. This is his first time in custody. He has no criminal history, and other than the Ashton charges has only minor matters pending. I have had regard to Mr Barreiro’s submission that despite the fact that the alleged offending is serious, a custodial sentence is not a foregone conclusion. I accept that submission. It is also favourable that IJ will be supervised by YJ, and that he has so far engaged well with their services. IJ is to be commended for his enrolment in full time education and his willingness to complete his VCAL certificates. His engagement with YJ will ensure he is occupied in constructive activities. It is desirable that he be able to continue with his educational pursuits.
I have taken account of the fact that IJ has a stable address and paid work available to him which is outside of the Colac area. The involvement of YJ and his residence at the farm will also assist him to keep away from drugs and assist him with his mental health by giving him a sense of purpose and direction. He will have the additional support of Child Protection, who will continue some involvement with him. For a young person who has found himself in a troubling environment in Colac, the proposal appears to be an excellent chance for IJ to turn things around and it is desirable that he be permitted take advantage of this opportunity.
I also note the evidence that IJ has [Redacted]. Notwithstanding this, he has managed to engage successfully with programs during his period on remand. I commend him for taking a proactive approach to his time in custody
In addition to all of the relevant surrounding circumstances, I have had regard to s 3B of the Act and take into account the desirability of allowing IJ’s education, training or employment of to continue without interruption or disturbance; the need to minimise the stigma to IJ resulting from being remanded in custody as well as the likely sentence should he be found guilty of the offences charged.
Regarding the application by CO, I have had regard to the seriousness of the allegations with respect to her involvement in the incident on 9 February (where the informant is Ashton) as well as the allegations where the informant is Convey. While a custodial term is not inevitable, it may result if the allegations against CO are proven. I note s 3B of the Act and in applying that section I note the availability of a stable address with her sister. It is desirable that CO live with her sister and not return to where she was living at the time of the alleged offending. Also pursuant to s 3B of the Act I take into consideration that CO attends [Redacted] and it is desirable that she continue her education, as is proposed, on bail.
Pursuant to s 3A of the Act I take account the issues arising due to CO being an Aboriginal person. It is significant that CO is interested in exploring her cultural links and that she has been referred to an Aboriginal YJ Worker to assist her in doing so. She should be afforded the opportunity to explore her culture, which I expect will be particularly important given the recent loss of her father.
It seems to me that CO has had a very difficult start in life, [Redacted]. It is appropriate that she be supported to engage with her GP to get a mental health plan. It is also appropriate that she address her alcohol use and use of prescription drugs, and attend the appointments that YJ have arranged for her. It is encouraging that she has shown willingness to engage with the supports on offer from YJ. Addressing these issues will likely be an important step towards her avoiding further offending. While I note that the applicant has some criminal history prior to the Ashton matter, her history is quite limited. The Ashton offending would, if proven, be by far her most serious conviction to date. It is therefore critical that, at this pivotal moment in her life, on the cusp of adulthood, that CO address the underlying issues that are leading to police attention so that this behaviour does not continue. Rather than her remaining in custody, I consider that the support offered by YJ should be explored as it does not appear she has had this level of support available to her previously.
All of the above matters, taken together in relation to each applicant, are sufficient to amount to exceptional circumstances justifying a grant of bail in relation to each applicant.
Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)(a) of the Act?
Regarding the application by IJ
I accept that IJ was on bail at the time of the Ashton offending, however I also note that those are relatively minor matters for which he was charged initially on summons. This does however give rise to some concern that he may reoffend whilst on bail. I accept that the alleged offending is quite serious, though it does appear out of character for the applicant.
However, I consider it significant that the proposed bail address is located outside of the Colac area. The evidence of Syndi M was very persuasive in explaining her good motives for wanting to assist IJ and the steps she has been prepared to take in this regard, including having her home inspected by Child Protection. She appears well aware of what she is taking on in having IJ live and work for her and her partner, and supporting him on bail. I am confident she will do her best in this regard and that she will report any misbehaviour to YJ and the police if necessary. Accordingly, the static address proposed, and supervision conditions sufficiently ameliorate any risk that IJ will engage in offending. His alleged offending appears to be connected to his negative peer group in Colac and his ongoing difficulties with substance use, which seems to be connected with the instability he has experienced in his life over the last two years. Residing and being occupied away from Colac will also reduce the risk of him coming into contact with the complainant in the Ashton matter.
The additional support provided by YJ will also ensure that he is both well supported to comply with his bail conditions, and well occupied during his period on bail, which also reduces his risk of offending. I also note he will be kept busy on the farm where he proposes to live, which further reduces the risks.
IJ’s period in custody has had a sobering impact on him and has no doubt reinforced to him the importance of complying with bail conditions. I note he has reported to YJ that he never wants to return to custody. From that I am confident IJ understands the seriousness of the situation he is in and the severe consequences he will face if he breaches bail.
Having again applied the principle at s 3B of the Act, I am satisfied that the conditions proposed are sufficient to address risk such that it is not unacceptable.
Regarding CO
Regarding the application by CO, I have had regard to the seriousness of the allegations against her with respect to her involvement in the incident on 9 February (where the informant is Ashton). It appears that she had a more significant role in the alleged offending than the co-accused, and indeed the alleged offending is in breach of the intervention order against CO for one of the complainant’s (MM’s) protection. CO’s counsel conceded the allegations are serious. In submissions, he also conceded that the allegations where the informant is Convey are also serious.
Despite the seriousness of the allegations, it cannot be assumed that CO would necessarily be sentenced to detention if found guilty.
I note s 3B of the Act, and in applying that section I note the availability of a stable address with her step-sister. I was impressed by the evidence of Emily R as to her desire to support her younger sibling and her willingness to report any breaches of bail. It does appear an appropriate location for CO as Emily R has indicated that CO enjoys being with Emily R’s young baby, and the address is removed from proximity to undesirable influences in Colac. I also take into consideration that CO attends the flexible learning centre. It is desirable that she continue her education, as is proposed, on bail.
I also note, once again, the application of s 3A of the Act, and CO’s vulnerability as an Aboriginal person. CO being connected with an Aboriginal Justice Worker and referred to Wathaurong will provide an additional layer of culturally specific support that will assist with mitigating the risks she poses.
I refer again to the difficult start to life CO has had and consider the mental health support that it is proposed she will receive, as well as the drug and alcohol counselling facilitated by YJ, aimed at addressing her specific needs. The evidence of both Ms Miller and Mr M reassured the Court about the steps that could be taken both in the educational environment and through YJ to supervise and support CO. It appears that there has been a great deal of thought put into developing the bail plan for CO which addresses the risks that existed at the time of the alleged offending.
Having again applied the principles at s 3A and s 3B of the Act, I am satisfied that the conditions proposed are sufficient to address risk such that it is not unacceptable.
Regarding parity
I take account of the principle of parity in noting that two of IJ’s co-accused, ND and ER, have already been granted bail. While that principle is by no means determinative on the bail application, it is a relevant consideration. In applying the principle of parity I am mindful that it was said for each of ER and ND, that their role was less serious than for IJ and CO.[37] However, there are other countervailing factors for each of IJ and CO that balance the position in their favour.
[37]It appears ER may be facing other outstanding charges of a more serious nature than CO or IJ.
Decision
Accordingly, IJ and CO are each granted bail, subject to conditions.[38]
[38]I am satisfied in accordance with s 3B(g) of the Act that the conditions I have imposed on both IJ and CO respectively are no more onerous that are necessary and are not unfair.
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