APPLICATION FOR BAIL BY RL
[2014] VSC 336
•18 JULY 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
PRACTICE COURT
S CR 2014 0097
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by RL
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 16, 18 JULY 2014 |
DATE OF JUDGMENT: | 18 JULY 2014 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY RL |
MEDIUM NEUTRAL CITATION: | [2014] VSC 336 |
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CRIMINAL LAW – Bail – Applicant at risk of reoffending – Show cause situation – Nature of offending – Applicant a juvenile – Possible sentence if convicted would be significantly shorter than period on remand – Bail granted – Conditions – Bail Act 1977 (Vic), ss 4(2), 4(4)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D N Sala | Victoria Legal Aid |
| For the Crown | Inspector R Koo | Victoria Police |
HIS HONOUR:
The applicant, RL, is 11 years of age[1] and is diminutive in stature. However, these facts have not prevented him from being highly active in allegedly committing various offences since 4 February 2014.
[1]His date of birth is 28 September 2002.
By way of a summary:
(1)On 4 February 2014, the applicant was arrested and charged with criminal damage, assault with a weapon, intentionally causing injury and unlawful assault.
(2)On 29 March 2014, the applicant was arrested and charged with 3 counts of criminal damage, 4 counts of unlawful assault, 2 counts of assaulting police, 2 counts of throwing a missile, making threats to kill and making threats to inflict serious injury.
(3)On 2 July 2014, the applicant was arrested and charged with the theft of a motor vehicle, unlicensed driving and other theft.
(4)On 8 July 2014, the applicant was arrested and charged with making a threat to kill, making a threat to inflict serious injury, assault with a weapon, unlawful assault and possessing a controlled weapon. This incident allegedly concerned a 16 year old victim who was 17 weeks pregnant.
A number of applications for bail have been successfully made by the applicant, except his most recent application. This last application for bail, made on 9 July 2014, was refused. The magistrate found that the applicant had failed to show cause, as required by s 4(4)(a) of the Bail Act 1977 (Vic), because he was an unacceptable risk of reoffending.
However, the magistrate also stated that he would have granted the applicant bail if there had been a secure facility for the applicant to which he could be sent. Regrettably, such a facility was not available at the time.[2] The magistrate also referred the applicant to the Children’s Court Clinic to have the applicant assessed as a matter of urgency.
[2]For completeness, I note that bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation: Children, Youth and Families Act 2005 (Vic), s 346(9).
The proceeding the subject of the last bail application is listed for mention in the Children’s Court on 28 July 2014.
A further bail application was to be heard on 14 July 2014 in the Children’s Court. Representatives from the Department of Human Services (“the Department”) and Youth Justice were at court. As there was still no adequate accommodation available, the application was withdrawn by counsel who appeared on behalf of the applicant. The magistrate, who was the same magistrate who heard the previous application, indicated that if secure accommodation, or a case worker who could work solely with the applicant, could be arranged, his Honour would consider those circumstances to be new facts and he would be willing to hear any further application.
The applicant has been in custody since 8 July 2014. He has been held at the Morwell police cells and, more recently, at Parkville Youth Justice Centre. Despite a number of enquiries, those acting on behalf of the applicant have been unable to arrange with the Department for any satisfactory accommodation or a case worker solely focussed on the applicant.
On 16 July 2014, an application for bail was made returnable before me in the Practice Court. Regrettably, no one attended court from the Department. The persons in attendance were counsel for the applicant, a representative of the Crown and the applicant’s mother (who was given leave to make submissions to the court).
At the hearing on 16 July 2014, no satisfactory evidence was before the court as to the position of the Department concerning the accommodation of the applicant. Attempts were made to speak to the Department throughout the day. Eventually, shortly after lunch, evidence was given by telephone by a representative from the Department. The representative stated that, if bail were granted, the Department intended to return the applicant to the location at which he was previously residing (“the Previous Location”). It was at the Previous Location that, on 8 July 2014, he committed the last of the series of alleged offences. The court was informed that the Department was willing to do this as the following steps had been put in place:
(1)Additional staff would be placed at the Previous Location to support the applicant.
(2)An educational program would be put in place, which would involve him going back to school at a local primary school.
(3)The applicant would be referred to a mental health service.
(4)A dedicated additional staff member would be available to keep the applicant occupied.
Nonetheless, there still was no satisfactory evidence as to a number of relevant matters, namely:
(1)Why the applicant should not be able to reside with his mother, at least in the short term, given his mother is willing to accommodate him.
(2)The availability of accommodation for the applicant other than at the Previous Location.
(3)The availability of alternate accommodation for the 16 year old alleged victim, who resides at the Previous Location, and when that accommodation can be made available.
In these circumstances, the Crown indicated that it had ongoing concerns for the safety of the 16 year old, and her unborn child, if bail were granted and the applicant was allowed to return to the Previous Location. The Crown maintained its position that it supported bail, but only on the basis that it be subject to a condition that the applicant not go within 200 metres of the Previous Location.
Accordingly, on 16 July 2014 orders were made granting bail to the applicant until 4.00 pm on 18 July 2014, subject to certain conditions, including restricting the applicant’s access to the Previous Location.[3] The application was adjourned to 11 am on 18 July 2014 with a direction that someone from the Department must attend court at that time to properly inform the court as to the matters referred to above.
[3]I was given an assurance by counsel for the applicant that the Department had undertaken that it would attend at court to collect the applicant and place him at a suitable location until 11.00 am on 18 July 2014.
Pursuant to s 4(4) of the Bail Act, where an accused is charged with an indictable offence that is alleged to have been committed while she or he was 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. It was common ground that the applicant was required to show cause.
Further, s 4(2)(d) of the Act provides that if the court is satisfied that there is an unacceptable risk that the accused if released on bail would commit an offence whilst on bail the court must refuse bail.
The issue as to how these 2 provisions interrelate was addressed by Maxwell P (sitting at first instance) in Re Asmar.[4] His Honour referred to a decision of Gillard J in DPP v Harika,[5] and then said as follows:[6]
[4][2005] VSC 487.
[5][2001] VSC 237.
[6]At [11]-[12].
In my view, the question – the only question – for the court on an application to which s 4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. …
This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
On 18 July 2014, the matter came before me again for hearing. This time, the applicant’s case worker, Ms Chris O’Shannessy, a child protection worker from the Department, was in attendance and was given leave to appear. Ms O’Shannessy spoke about her experiences with the applicant, the Department’s plans for his future accommodation, and programs and services the Department was looking to provide to the applicant to assist him in overcoming his behavioural issues. Among other things, Ms O’Shannessy submitted that:
(1) Although she has seen the applicant “go from zero to 100 within seconds”, he has never misbehaved with her.
(2) The applicant acknowledges that there are issues he needs to work on regarding his behaviour.
(3) The Department had now found the applicant accommodation in a residential unit located within a 15 to 20 minute drive from the Previous Location. However, that location would only be temporary.
(4) The Department had plans to move the applicant to a new unit which is only 8 minutes by car from the Previous Location (“the New Location”). The Department plans to have 1, or possibly 2, workers from the Department working exclusively with the applicant in order to give him the intensive work that he needs regarding his behaviour.
(5) By the time the applicant is placed in the New Location, it is likely that the 16 year old will have moved from the Previous Location. Therefore, the applicant will eventually be located some distance from that person.
(6) The applicant would be referred to an intensive mental health service.
(7) The applicant would be assisted to reengage in his education. A tutor is available to help him do so.
(8) The applicant would have the option to be involved in a recreational program which includes activities he enjoys, such as swimming.
(9) That the Department are working on the relationship between the applicant and his mother.
The steps outlined above, combined with the applicant’s young age, demonstrate that he has now shown cause as to why his detention in custody is not justified. In addition, I was informed that, even if convicted of the present charges, the applicant was unlikely to receive a custodial sentence beyond the 8 days he has already served in custody. It follows that if bail were not granted, the applicant would be likely to spend a significantly longer period in custody than warranted by the charges. This is a further reason why cause has been shown.
Accordingly, bail will be granted on the conditions as already agreed between the parties.
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