APPLICATION FOR BAIL BY SL
[2016] VSC 682
•10 NOVEMBER 2016 17 NOVEMBER 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE AND AT BALLARAT
CRIMINAL DIVISION
S CR 2016 0162
| IN THE MATTER of the Bail Act 1977 (Vic) and IN THE MATTER of an Application for Bail by SL |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10 NOVEMBER 2016 |
DATE OF RULING: DATE OF REASONS: | 10 NOVEMBER 2016 17 NOVEMBER 2016 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY SL |
MEDIUM NEUTRAL CITATION: | [2016] VSC 682 |
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CRIMINAL LAW – Bail – Determination in relation to a child – Case adjourned for preparation of report – Where non-custodial sentence likely – Bail granted – Conditions of bail – Bail Act 1977 (Vic), ss 3B and 4(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Richard Koo | Victoria Police |
| For the Accused | Ms Danielle Lamovie | Victoria Legal Aid |
HIS HONOUR:
The applicant, SL, is 14 years of age. On 10 November 2016, I granted bail and adjourned his application for 1 week. I now give my reasons for granting bail.
On 14 September 2016, the applicant was arrested and subsequently charged with the following 21 offences:[1]
[1]The applicant was charged with 19 offences on 14 September 2016. Two additional offences were added to his charge sheet on 23 September 2016.
(1) 9 counts of theft pursuant to s 74 of the Crimes Act 1958 (Vic), including 4 counts of theft of a motor vehicle.
(2) 8 counts of attempted theft of a motor vehicle pursuant to s 321M of the Crimes Act.
(3) 1 count of criminal damage by fire pursuant to s 197(1) of the Crimes Act.
(4) 1 count of going equipped to steal pursuant to s 91(1) of the Crimes Act.
(5) 1 count of use of drug of dependence pursuant to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(6) 1 count of unlicensed driving pursuant to s 18(1)(a) of the Road Safety Act 1986 (Vic).
Before bail was granted, the applicant was on remand in youth detention since his arrest.[2]
[2]The applicant was in custody for 57 days.
Since that time, matters have progressed as follows:
(1) On 15 September 2016, the applicant appeared before the Children’s Court at Ballarat. No application for bail was made, and the applicant was remanded until 26 September 2016.
(2) On 26 September 2016, the proceeding was adjourned to 10 October 2016. The applicant was remanded until that time and, again, no application for bail was made.
(3) On 10 October 2016, the matter was before the Children’s Court at Ballarat. The applicant entered a plea of guilty to each offence. A sentencing hearing was listed for 27 October 2016 and the applicant was remanded until that date with no application for bail being made. In the meantime, it was ordered that a Children’s Court report, focusing on the applicant’s family and family home, be prepared (“the Family Report”).
(4) Prior to the sentencing hearing, the solicitors for the applicant received a notification that the Crown would be opposing any application for bail made at that hearing. An opposed bail application was then listed for 31 October 2016 and the sentencing hearing was adjourned to 8 November 2016.
(5) On 31 October 2016, although the hearing of the application for bail commenced, the magistrate did not make a determination on the issue and the applicant was remanded until 8 November 2016.
(6) The sentencing hearing resumed on 8 November 2016, but was adjourned pending completion of the Family Report. Although the Family Report had been requested as a matter of urgency, the parties were informed it would not be completed until 29 December 2016. As a consequence, the sentencing hearing will not be re-listed until at least early January 2017. The applicant was remanded to 30 November 2016, being the earliest date the Children’s Court could list the hearing of the applicant’s application for bail.
The applicant applied to this court for the grant of bail under s 4(1)(c) of the Bail Act 1977 (Vic). That section provides that, subject to s 4(2) of the Bail Act, the applicant is entitled to be granted bail:
[W]here his case is adjourned by a court for inquiries or a report or whilst he is awaiting sentence except where the court is satisfied that it would not be desirable in the public interest to release the accused pending completion of the inquiries or receipt of the report or pending sentence.
Because the applicant is a child,[3] the court must also take into account the factors in s 3B of the Bail Act. Those factors are:
[3]As defined in s 3(1) of the Children, Youth and Families Act 2005 (Vic).
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
In support of the application, the applicant’s Youth Justice worker, Kirsten Mende, gave evidence. The applicant has had extensive dealings with Ms Mende since he was placed on a probation order[4] in March 2015. Ms Mende told the court that she has always found the applicant pleasant and easy to engage with.
[4]See Children, Youth and Families Act 2005 (Vic), ss 380 and 381.
Ms Mende gave evidence that, between March and June 2015, the applicant was placed in secure welfare a number of times due to his “high risk behaviours”, including drug use. In June 2015, as an alternative attempt to address the applicant’s behaviour, Child Protection arranged for the applicant to move to Mackay with his father. During this time, Ms Mende reported that the applicant engaged well with a number of services, including Youth Justice, and that he spoke to Ms Mende on a weekly basis.
For reasons not necessary to discuss, the applicant and his father returned to Ballarat in December 2015. Although the applicant initially continued to engage with support services, this ceased when he began to re-associate with offending peers and recommenced drug use, including methamphetamine. In April 2016, he was arrested for new offending. As a result, the applicant was placed on a 12 month youth supervision order[5] and returned to secure welfare. The applicant absconded after approximately 1 week, and was eventually returned to secure welfare for a further period.
[5]See Children, Youth and Families Act 2005 (Vic), ss 387 and 389.
On his release from secure welfare in May 2016, Ms Mende reported that the applicant re-engaged with support services until early July, at which point he stopped returning home and the offending conduct the subject of the current charges began. At the time of his arrest, the applicant was a missing person with a safe custody warrant in his name, and police had been actively searching for him.
Ms Mende visited the applicant shortly after he was remanded in youth detention. During that visit, the applicant told Ms Mende that he did not want to be released because he recognised he needed help. Ms Mende noted that the applicant was quite open in discussions about his offending.
Ms Mende visited the applicant a second time as part of a “care team meeting”. The applicant interacted well in that meeting. He conveyed his desire to change, to move home with his parents and find a new peer group. Overall, according to Ms Mende, the applicant has displayed a lot of insight and is mentally in a much better place than in the past. The court was informed that the sentence recommended by Youth Justice is to place the applicant on a further youth supervision order.
Balvinda Chohan of Berry Street also gave evidence in support of the application for bail. Ms Chohan has been the applicant’s day-to-day case manager since June 2016 through the Berry Street Intensive Case Management Service.[6] She has visited the applicant on approximately 5 occasions since he was detained. Ms Chohan has found the applicant to be easy to engage with, keen to change and open to working with Berry Street. The applicant has told Ms Chohan that he wants to develop goals for himself and re-engage in his education. She told the court that she is confident the applicant will steer clear of criminal offending and drug taking.
[6]Berry Street has been contracted by the Department of Human Services through the Child Protection Division to manage the applicant’s case on their behalf.
Ms Chohan has prepared a holistic plan of support services and activities for the applicant to follow once he is released from youth detention (“the Care Plan”). The Care Plan is designed to meet the applicant’s day-to-day needs and aims to assist him in developing goals and avoiding “high risk behaviours”. It provides for the applicant to attend at Berry Street each Monday to Friday, and be taken to a family country property, away from the town of Ballarat, on the weekends under the supervision of his parents. Regular drug and alcohol counselling have also been put in place.
Ms Chohan has also dealt closely with the applicant’s parents and siblings, who have been open to Berry Street in assisting them with the applicant’s position. As part of this, Ms Chohan has developed a plan for the applicant’s parents to follow if they become worried about the applicant. Berry Street is approximately a 10 minute drive from the parents’ home and there is an “on-call” service available at all hours. There are also other support services working with the applicant’s family. The Department of Human Services has made an application for a targeted care package, which would make more specific after-hours support available to the applicant and his family.
If he is to permanently return to his family home, the applicant has his own bedroom (which, at the time of the hearing, was all set up and ready to go). The family home is neat and tidy and Ms Chohan has no concerns in that regard. Both of the parents are based at home and are available to care for him. Ms Mende has also spoken to the parents regularly and is satisfied the home environment will be supportive.
The Crown initially sought to establish that bail should be refused because there was an “unacceptable risk” within the meaning of s 4(2)(d)(i) of the Bail Act,[7] and as such it would not be desirable in the public interest to release the applicant on bail while the Family Report was being completed.
[7]That section provides that bail should be refused if the court is satisfied that there is an unacceptable risk that the accused if released on bail would— fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
Ines Perovic, Acting Area Manager for Ballarat of the Department of Human Services, gave evidence in support of the Crown’s opposition to bail. Ms Perovic noted her concerns about the applicant’s release and suggested that the Care Plan needed to be more intensive. However, Ms Perovic was aware that a youth supervision order had been recommended and noted that the Department of Human Services would be asking the Children’s Court at the next hearing to make an interim accommodation order placing the applicant with his family.
In closing submissions, the Crown conceded that the bail application was not in principle opposed, and that the best place for the applicant to be was at home with his family. It was also conceded that any unacceptable risk could be mitigated through the various support networks put in place for the applicant. However, the Crown submitted that amendments to the Care Plan were needed, particularly to address the applicant’s tendency to abscond overnight. In the end, a 1 week adjournment to facilitate those amendments was requested.
Overall, it is apparent that the applicant’s circumstances and his attitude have changed since 14 September 2016. The applicant has been drug free since that time and he now believes he is in a position to go back into the community in a responsible manner. The applicant has proved himself in the past of being capable of correcting his ways – his behaviour was exemplary during the time he spent in Mackay away from peer group pressure. His parents are committed to looking after him, particularly his dad, and there is now a strong network in place to support the applicant and his family. Further, it seems likely that the applicant will be given a non-custodial sentence.
In the circumstances, it is appropriate that the application be adjourned for 1 week to enable Berry Street and the Department of Human Services to liaise to finalise the Care Plan, a copy of which was to be provided to the court as soon as practicable and in any event by 4.00 pm on 16 November 2016.
In the meantime, having regard to the evidence before the court and the factors in s 3B of the Bail Act, the applicant will be released on bail on the following strict conditions, each of which the applicant has expressly agreed to:
(1) The applicant is to reside at his parents’ home, except from 2.00 pm on 11 November 2016 to 4.00 pm on 13 November 2016, at which time he is to reside at his parents’ country property.
(2) The applicant must not leave the residence at which he is directed to reside between the hours of 8.00 pm and 8.00 am.
(3) The applicant must present at the front door of the residence at which he is directed to reside during the curfew hours at the request of any member of Victoria Police.
(4) The applicant must obey all lawful directions of Child Protection or Youth Justice.
(5) The applicant must not use a drug of dependence within the meaning of the Drugs Poisons and Controlled Substances Act without lawful authorisation under that Act.
(6) The applicant must not contact or associate with certain named co-offenders.
(7) The applicant must not contact witnesses for the prosecution save for the informants in his matters.
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