AW v The Queen
[2013] VSC 56
•14 February 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2013 0016
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by AW
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2013 | |
DATE OF JUDGMENT: | 14 February 2013 | |
CASE MAY BE CITED AS: | AW v R | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 56 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr. J Cass | Victoria Legal Aid |
| For the Respondent | Ms. C Sedgwick | Office of Public Prosecutions |
HER HONOUR:
On Monday 11 February 2013, AW was arrested in respect of four bench warrants. No bail application was made that day, and she came before the Children’s Court the next day, initially on an application for bail. However, upon giving instructions to plead guilty to a consolidation of offences which occurred between September 2011 and March 2012, Magistrate McPherson remanded AW in custody until 12 March 2013 and ordered that a pre-sentence report be obtained pursuant to s 571 of the Children, Youth and Families Act 2005 (Vic). The offences to which AW pleaded included assault in company, burglary, theft, theft from a motor vehicle, obtaining property by deception, attempting to obtain property by deception, behaving in an offensive manner in a public place and five charges of failing to answer bail.
AW is 16 years old. She was 15 when she committed these offences and she has a prior criminal history which includes offences of wilfully damaging property, criminal damage, unlawful assault, theft of a motor vehicle, driving a motor vehicle without a licence, criminal damage by fire and attempted criminal damage for which she has been placed variously on an adjourned bond and probation. Indeed, AW has committed some of these consolidated offences whilst she was subject to a bond or on probation. Her last offending was in March 2012, which is very much to her credit, but the very real difficulty for her is not the risk of re-offending, but her repeated failure to attend court to have matters dealt with. Most recently, on 11 September 2012, she failed to attend on the return date of a deferral of sentence, as she did again on 24 October 2012, and on 7 December 2012 AW failed to appear on the return date of all outstanding matters. It was in these circumstances, as I understand it, that the warrants ultimately came to be issued.
AW, who is represented by Mr Cass, applied pursuant to s 4(1)(c) of the Bail Act 1977 (Vic), which provides:
“Any person accused of an offence and being held in custody in relation to that offence shall be granted bail (c) where 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.”
Thus, pursuant to s 4(1)(c) of the Act, the obligation is on the respondent, represented here by Ms Sedgwick of Counsel, “to demonstrate that it would not be desirable in the public interest to release the accused … pending sentence”.
Ms Sedgwick submitted that the public interest requires finality to the proceedings and AW has demonstrated an inability to attend court on numerous occasions and even upon a deferral of sentence when it would have been in her interest. Ms Sedgwick tendered in evidence the deferral of sentence report dated 4 September 2012 and a further addendum to the report dated 24 October 2012, both of which, in totality, comprehensively detail AW’s antecedents and personal circumstances.
Mr Cass relied upon the affidavit of Kahlia Gwendolyn Shenstone sworn 13 February 2013, his instructing solicitor who also appeared for AW in the Children’s Court. Mr Cass submitted that it was in the public interest that AW be granted bail because it was not likely that she would receive a custodial sentence; she had only been in custody previously on two occasions and, on each of those occasions for short duration on the return of warrants; that at the age of 16, she may be subject to the influence of negative peers who are in custody undergoing sentence; and AW has mental health issues for which she is medicated with Seroquel.
Mr Cass also submitted that, if granted bail, the youth justice worker who was present in Court would be in a position to make an initial assessment of AW at 11.00am this Friday, 15 February, with two follow-up interviews if and when required. Thus, it is significant that the process to assess AW and report accordingly can be commenced sooner, rather than later, in the three week period upon which she has been ordered to be on remand.
Mr Steven …, AW’s stepfather since she was six months old, gave evidence on the application. AW is subject to a Secretary to Custody Order and spends some of the days of the week at a residential house at Fox Street, St Albans, and at other times lives in the family home at Melton. The arrangements for access between the family and AW are said to be flexible, and ultimately the Secretary to Custody Order, which remains in force until June 2013, was tendered in evidence as Exhibit A.
AW was diagnosed with oppositional defiance disorder when she was ten and she has more recently been prescribed Seroquel. AW gave evidence that AW’s demeanour and attitude has changed, particularly since May or June of last year, when she changed residential units and came under the positive influence of an older female inmate. AW now gets on well with her siblings; two older brothers and a younger sister. AW is in full-time employment with Spotless at the airport, and his wife, AW’s mother, is a qualified disabilities teacher, and is present here in Court today.
AW’s step-father frankly told the Court that, although he and AW’s mother were aware of the Court dates concerning AW’s placement with the Department of Human Services (“DHS”), they were not aware of the court dates concerning her criminal matters, either because DHS had not advised them, or AW had not told them or had forgotten them.
AW’s step-father gave evidence that he would ensure that AW attended Court on the return date of 12 March 2013. He has previously attended the police station with AW on a number of occasions and most recently arranged to take AW to the Moonee Ponds Police Station last Monday, when instead she surrendered herself to the police at an earlier time and consequently was remanded in custody. AW’s father impressed as a witness of truth. He was a concerned father and gave frank evidence. He conceded that AW has had longstanding problems and that as parents they were not aware of the particularity of her drug use.
It is apparent from the deferral of sentence report dated 4 September 2012 that AW has a number of support services and structures in place. In March 2012, she was placed on the Child Protection Adolescent High Risk Register and she has been supported in particular by Maria Flateley, her case manager at Salvation Army West Care Intensive Case Management Services. Ms Flateley gave evidence before the Children’s Court (as attested in Ms Shenstone’s affidavit) that since working with AW she has noticed significant improvement in her demeanour and a higher level of engagement with services offered by DHS. Part of Ms Flateley’s role as case manager is to assist the applicant in attending appointments, which clearly has not been as successful as it might.
The deferral of sentence report details AW’s physical and mental health. She has a history of drug and alcohol abuse, and has been referred to Origin Youth Health for counselling and support. AW was admitted to the Banksia Adolescent Inpatient Unit in January, February and May of 2012, and it appears had requested admission more recently in September 2012. In these circumstances, concerns about AW’s mental health, should she remain in custody, as expressed by Ms Flateley and AW’s mother, and as attested to in Ms Shenstone’s affidavit, are not without foundation.
The deferral of sentence report details a history of non or sporadic engagement with services designed to assist AW, which attitude is consistent with her failure to answer bail on five occasions. AW has demonstrated a disinclination to engage with services, even when it is to her advantage, and such was her high level of disengagement that the author of the deferral of sentence report was not able to make a recommendation to the Court and the author of the report, dated 24 October 2012, doubted the efficacy of a supervisory order. In this instance, her Honour Magistrate McPherson has ordered Youth Justice to prepare a pre-sentence report under s 571 of the Children Youth and Families Act2005 (Vic). Her Honour stated that her reason for doing so was that the applicant had previously failed to engage with Youth Justice and attend court, and that her charges warranted a supervisory order. That being so, it is unlikely that the Magistrate will impose a custodial disposition, although my comments are not intended to fetter the Magistrate’s sentencing discretion in any way. No doubt, Magistrate McPherson, a very experienced Magistrate, was concerned, and not without justification, that AW, if she remained at large, would not attend for interview and assessment with Youth Justice and thereby further frustrate the process. Although being in custody will ensure AW’s attendance at court on 12 March, it nonetheless will not necessarily ensure her cooperation with Youth Justice.
Although a number of the offences to which AW has pleaded guilty are serious, in particular the assault and theft charges, it may well be that given her prior dispositions, personal circumstances, antecedents and young age, a custodial sentence will not be imposed. Indeed, the Magistrate indicated that a supervisory order may be appropriate, and no doubt AW will present as a sentencing challenge. AW has now been in custody for three days and her Counsel, Mr Cass, today submitted to the Court that she has found the experience an unsettling one. An appointment has been made for her to attend a Youth Justice worker at 11.00am tomorrow for assessment and interview.
The public interest is served when criminal matters reach finalisation, and the public interest is further served when dispositions imposed are designed to assist the rehabilitation of young persons. What is necessary to achieve both is AW’s engagement and cooperation with Youth Justice, the first step of which is the appointment tomorrow morning. AW has the support of her parents, her case manager Ms Flateley and, presumably, the Department of Human Services. Her father has said that he will ensure she attends court on 12 March 2013. Given her age and the fact that a custodial disposition is not a certainty, her mental health issues and the undesirability generally of children of such an age being held in custody, the Court is not satisfied that it is not desirable in the public interest that AW be released pending receipt of the report or sentence.
Accordingly, AW is to be admitted to bail on the following conditions:
(1) The said AW attend at the Children’s Court at Melbourne on 12 March 2013 at 9.30am.
(2) The said AW reside at either the Residential Facility at … or at her family home at …
(3) The said AW attend her appointment with Kate Delaney, or her nominee, at Youth Justice, located at 71 Moreland St, Footscray on 15 February 2013 at 11am and at any such further appointments as directed by Kate Delaney, or her nominee.
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