Director of Public Prosecutions (Cth) v Carrick (a pseudonym)
[2021] VSC 696
•15 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0272
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| THOMAS CARRICK (a pseudonym) | Respondent |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11 and 12 October 2021 |
DATE OF JUDGMENT: | 15 October 2021 |
DATE OF REVISED REASONS | 29 October 2021 |
CASE MAY BE CITED AS: | DPP (Cth) v Carrick (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 696 |
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CRIMINAL LAW — Bail — Director’s appeal against a grant of bail by the President of the Children’s Court — Respondent charged with terrorism offending — Bail granted with strict conditions in the Children’s Court — Existence of exceptional circumstances justifying the grant of bail conceded on appeal — Whether reasonably open for the President to find that risk of respondent’s release on bail acceptable — Seriousness of risk — Respondent assessed as suitable for Youth Justice supervised bail — Significant supports in place to ameliorate risk — Stringent and targeted conditions of bail imposed in Children’s Court — Capacity of conditions of bail to reduce risk to an acceptable level on the evidence — No miscarriage of discretion to grant bail by the President — Unpersuaded that a different order should have been made — Appeal dismissed — Criminal Code Act 1995 (Cth) ss 102.3, 80.2C — Crimes Act 1914 (Cth) s 15AA — Bail Act 1977 (Vic) ss 3AAA, 3B, 4D, 4E, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. Shaun Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Respondent | Ms. Erica Contini | Victoria Legal Aid |
HIS HONOUR:
This is an appeal by the Commonwealth Director of Public Prosecutions (“the Director”) pursuant to s 18A of the Bail Act1977 (Vic) (‘the Bail Act’) against a grant of bail to Thomas Carrick (‘the respondent’)[1] in the Melbourne Children’s Court by the President of that Court on 8 October 2021.[2] The details of the order for bail that was made at that hearing are summarised later in these reasons.
[1]So as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
[2]Bail Act 1977 (Vic), s 18A.
The respondent is 14 years old and has been charged with two offences. The first charge concerns his alleged membership of a terrorist organisation contrary to s 102.3 of the Criminal Code Act 1995 (Cth) (‘the Code’).[3] The second charge alleges advocating terrorism contrary to s 80.2C of the Code.[4] The alleged offending began when the respondent was 13 years old and continued past his fourteenth birthday in September 2021. He was arrested and charged two days before the application for bail was heard in the Children’s Court.
[3]Criminal Code Act 1995 (Cth) s 102.3(a).
[4]Ibid s 80.2C(1).
The charges are based on a number of utterances by the respondent about terrorism and his expressed intention to engage in terrorist behaviour. He also expressed his affection for and allegiance to terrorist organisations. Much of this arose over a period between July and October 2021 in communications between him and an online covert operative. Portions of these communications were before the Children’s Court in the form of a summary and are part of the brief of evidence being compiled against the respondent.
Original concerns about the respondent arose in December 2020 when the principal of his then primary school became perturbed by his attempts to access Islamic State (‘ISIS’) material online. The respondent appeared to have a fixation with ISIS and allegedly threatened to hurt female students, tried to obtain information about making a bomb and attempted to make contact online with a Syrian-based ISIS recruiter. In May 2021 his mother provided police with her son’s mobile phone and laptop computer. They contained graphic and violent content. In June 2021 the respondent told Victoria Police members that he was trying to follow and contact ISIS members. In July 2021 the Victorian Joint Counter-Terrorism Team began an investigation and a covert operative was engaged to make contact with the respondent. On his arrest handwritten notes were found which referred to blowing up his school and shooting people including teachers.
The Appeal
The Notice of Appeal concerning the grant of bail by the Children’s Court is in the following terms:
1.THAT the learned Judge erred in failing to find, pursuant to sections 4D and 4E of the Bail Act 1977 (Vic), that there was an unacceptable risk that if released on bail the Respondent would:
(a)endanger the safety or welfare of any person, pursuant to section 4E(1)(a)(i); or
(b) commit an offence whilst on bail, pursuant to section 4E(1)(a)(ii).
PARTICULARS OF GROUND 1
(a) The learned Judge failed to give any or proper weight to the following surrounding circumstances, as required by section 4E(3)(a) of the Bail Act 1977 and as defined in section 3AAA of the Bail Act 1977:
(i) the nature and seriousness of the alleged offending,
(ii) the nature of the risk posed by the Respondent,
(iii) that for the 10 months preceding his arrest on 6 October 2020, the Respondent had remained fixated with the terrorist organisation Islamic State, and had exhibited escalating preparedness and planning to engage in terrorist acts,
(iv) that this conduct amounted to acts of support and association concerning terrorism that fell within sections 3AAA(1)(m) and (n) respectively,
(v) that the Respondent’s adherence to extremist ideology and support for terrorist acts had persisted despite protective intervention from the Respondent’s parents and school, and police and child protection services,
(vi) information contained in a report provided by a bail support service, within the meaning of s3B(2), that raised doubt about the Respondent’s willingness to genuinely engage with bail support services, and
(vii) the absence of evidence that the respondent was or could be deradicalised.
(b)The learned Magistrate gave improper weight to the following matters:
(i)the capacity of the bail conditions that he imposed to mitigate the risk.
As to appeals by the Director of Public Prosecutions against orders granting bail, s 18A of the Bail Act provides:
1.If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if—
(a) the Director is satisfied that—
(i) the conditions of bail are insufficient; or
(ii) the decision to grant bail contravenes this Act; and
(b) the Director is satisfied that it is in the public interest to do so.
2.Where the Director of Public Prosecutions desires to appeal to the Court under subsection (1) he shall cause notice of appeal setting forth the grounds thereof to be given to the person granted bail (hereafter in this section called the respondent) and to each of the sureties (if any).
3.A notice required to be given to a surety under subsection (2) may be given personally or by post or by causing the notice to be delivered at the place of residence of the respondent or surety (as the case requires) shown in the affidavit of justification for bail.
4.Notice of appeal shall not be given under subsection (1) more than one month after the bail is granted without first obtaining the leave of the Supreme Court.
5.The Director of Public Prosecutions or a legal practitioner on his behalf may appear on behalf of Her Majesty on any appeal under this section and any respondent or surety to whom notice is given under subsection (3) may appear by himself or by a legal practitioner on his behalf.
6.On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
7.If the respondent is not present in Court when an order granting bail is revoked or varied under this section the Court shall cause a warrant to be issued for apprehending the respondent and bringing him before the Court.
8.If the Court revokes an order granting the respondent bail the Court shall remand the respondent in custody to await his trial.
9.If the Court makes an order varying the amount or conditions of bail the Court shall require the respondent to find further or other surety or securities for the attendance of the respondent and may remand him in custody until further or other surety or security is provided.
10.On the hearing and determination of an appeal under this section no costs shall be allowed on either side.
11.A respondent if he so desires is entitled to be present on the hearing of an appeal under this section notwithstanding that he may be in custody but the Court may make any order under this section where the respondent is for any reason not present.
12.The respondent or the Director of Public Prosecutions may appeal to the Court of Appeal from a decision of a single judge of the Supreme Court made under this section.
Note
Sections 18AG and 24(4) also provide for certain appeals.
As can be seen, s 18A(6) of the Bail Act makes the role of the appellate Court tolerably clear. I have to decide whether I think a different order should have been made and, if I do, the appeal succeeds. If that were to occur, it would then be necessary to conduct another application for bail and rule on that. I will return to this topic in my conclusion.
The applicable legislation for a bail application in this kind of matter is a combination of the Crimes Act 1914 (Cth) (‘the Crimes Act’) and the Bail Act. Pursuant to s 15AA of the Crimes Act, a person charged with a terrorism offence is not to be granted bail unless the “bail authority” is satisfied that exceptional circumstances “…exist to justify bail.”[5] In the hearing below, the President found that exceptional circumstances were established on behalf of the respondent and the Director takes no issue with that finding.
[5]Crimes Act 1914 (Cth), s 15AA.
After a finding in relation to exceptional circumstances has been made, the question of whether a person applying for bail poses an unacceptable risk arises for determination under s 4E(1) of the Bail Act.[6] In considering whether a risk is an unacceptable risk, the bail decision maker must take into account the surrounding circumstances.[7] As the respondent is a child, the bail decision maker must take into account the following when assessing unacceptable risk:[8]
[6]Above n 2, ss 4D(1)(a), 4D(2) and 4E(1).
[7]Ibid, ss 3AAA and 4E(3).
[8]Ibid, s 3B(1).
(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.
A bail decision maker may also take into account any recommendation or information contained in a report provided by a bail support service when assessing the risk of releasing a child on bail.[9] A Youth Justice Supervised Bail report was prepared for the original hearing of this matter and has been provided to this Court. I will return to this report later in these reasons.
[9]Ibid, s 3B(2).
The present appellant carried to the onus of establishing that the risk of releasing the respondent on bail was unacceptable at the original bail application.[10] This appeal has arisen because the Director argues that his Honour should have found that the risk was unacceptable.
[10]Above n 2, s 4E(2).
For the purpose of dealing with this matter, I have listened to the tape recording of the hearing before the Children’s Court, his Honour’s ruling and examined the reports and affidavits which were produced.
The Evidence About Risk
I will briefly summarise the evidence before the Judge in relation to the acceptability of the risk of releasing the respondent on bail.
The first item of evidence before the Court was a document described as a Statement of Facts prepared by Constable [redacted] of the Australian Federal Police. The document was marked as an exhibit. It carries the caveat that it is a guide only and “…does not purport to summarise all the relevant evidence in the case”. The author of the report was not a witness at the hearing. Nonetheless the parties appear to have proceeded on the basis that it is a reliable source of information both about the charges and risks that may be involved in the release of the respondent. The document summarises the police investigation and includes parts of the communications between the accused and the online covert operative.
Next was the viva voce evidence from the witness box of Detective Senior Constable [redacted]. He summarised the evidence he gave in an affidavit on the hearing of this appeal affirmed on 11 October 2021. His concerns about the respondent can be summarised to the following:
(a) The respondent’s family have disowned him[11];
[11]It would appear from the evidence that this is not correct.
(b) The respondent has antagonism toward at least one girl and there had been talk about “slitting her throat”;
(c) One of the girls the respondent is hostile towards had “called him out in relation to his ISIS ideas”;
(d) The respondent made threats at a school;
(e) There have been physical fights;
(f) The respondent is “into” knives;
(g) The respondent has spoken about violence against the wider populace;
(h) The respondent talked about blowing up the school with specific teachers named;
(i) The respondent will eventually contact a genuine jihadist and take up what is offered to him;
(j) The respondent appears to be infatuated with ISIS and terrorism;
(k) The respondent has taken no practical steps toward committing any terrorist act;
(l) The concerns relate to physical violence without weapons and threats;
(m) The respondent has been bullied in the past;
(n) The respondent was unfit for interview because it was considered that he was suggestible;
(o) Various teams are working with him;
(p) Police removed all devices they could find from the respondent’s home;
(q) Police found no other weapons.
Ms [redacted] of Youth Justice gave evidence. She and Dr [redacted] prepared a Youth Justice Bail Service Report dated 8 October 2021 in which the respondent was recommended for Supervised Bail. The report also suggested conditions.
Dealing with the detail of the report a number of relevant matters were highlighted:
(a) If the respondent was released on bail he would be required to attend twice weekly supervision sessions;
(b) Youth Justice would monitor the respondent’s compliance with conditions and report any breaches;
(c) Youth Justice would co-ordinate the care team of existing supports;
(d) Youth Justice would focus on engaging the respondent in discussions about pro-social behaviour and consequential thinking through cognitive behavioural interventions, problem, solving and pro-social modelling;
(e) The respondent has mild Autism Spectrum Disorder and receives an NDIS support package which Youth Justice consider to be inadequate;
(f) The respondent has a strong therapeutic relationship with [redacted] of [redacted] which was recommended to include the respondent’s parents;
(g) The respondent’s parents appear motivated to increase their supervision of the respondent;
(h) Family therapy in the form of Multi Systemic Therapy is available through [redacted] and could commence very quickly;
(i) The Department of Education and Training are working with Victoria Police to determine the best educational setting for the respondent. [Redacted];
(j) The respondent will be assessed by [redacted] where he has already attended on three occasions;
(k) The care team for the respondent will be supported by [redacted] who have been involved since July 2021;
(l) The respondent has been allocated to a senior case manager from the Countering Violent Extremism Unit and has engaged with Youth Resource Officers;
(m) The involvement of Imams for religious mentoring has also been offered.
The report then compared factors to address risk and support bail compliance with factors that increase the risk of bail non-compliance. In the first category were:
(a) Device restriction and management;
(b) Supervision of the respondent’s movements;
(c) Family therapy;
(d) [redacted];
(e) Removing weapons from the house;
(f) Judicial monitoring.
In the latter category were:
(a) Access to the internet and the ability to interact online with others;
(b) [redacted];
(c) It was difficult to gauge the respondent’s authenticity.
The respondent presented as willing to engage with Youth Justice. His mood was stable without disturbance and there were no acute mental health concerns. He has been isolated in custody. He is aware that Youth Justice will report bail breaches if they occur.
The authors of the report both gave evidence and were briefly cross examined but the contents of the report did not appear to be challenged.
Dr [redacted] gave evidence about the desirability for [redacted]. They were alert to the need to understand the respondent’s needs. There was some uncertainty about how the respondent would be monitored at school including his access to devices. One option was that he be regarded as a vulnerable student and attend school in person. Youth Justice wished to understand the risks and prepare a thorough bail plan.
The respondent’s father also gave evidence. He said that the respondent’s autism was the problem and that his son lacks social skills and has a low IQ. He said he had not disowned his son and wants him to come home. The programs have changed him and they will stop if he stays in custody. They will supervise his access to any devices and will change the Wi-Fi password. He would go with his son whenever he went out and would report him if he breached the conditions. He supports psychological treatment and would take the respondent to appointments.
Counsel then made submissions. The thrust of the submissions of counsel for the respondent pointed to the protective factors and the ability of appropriate conditions to mitigate the risk. Other matters were referred to including the consequence of delay.
Counsel for the Director pointed out that protection of the community was the paramount factor and the best interests of the child are a primary factor. It was argued that he was a risk and a danger to the community and that it was not accepted than any conditions could remedy the unacceptability of the risk.
After considering the matter overnight, the judge ruled that bail would be granted. In brief summary, his ruling noted the charges faced by the respondent are serious, as he had noted several times during the course of the application. He reviewed the history and detail of the allegations and the utterances of the respondent, including to police. He referred to the evidence of Detective Senior Constable [redacted] and to the physical assaults which he said had occurred. He noted the concern of police about the respondent’s threats and concern that he would act on them as a “lone wolf”. He noted also that the respondent was considered unfit for interview by police as it was thought he was too suggestible. His Honour noted that the respondent had not acted on any of his statements.
His Honour reviewed the evidence called for the respondent leading to the view that the respondent has improved and now spends more time with his family. He noted that there are no weapons in the house and after a thorough search by police none were located.
His Honour concluded that exceptional circumstances were established and again referred to the seriousness of the charges and the concerning nature of the respondent’s statements. He described the family as being supportive and acting protectively. He referred to the various therapeutic interventions set out in the Youth Justice Report to which I have referred. His Honour referred to ss 3AAA and 3B of the Bail Act and noted that pursuant to the Crimes Act protection of the community is the paramount factor and the welfare of the child is the primary factor.[12]
[12]Above n 2, ss 3AAA and 3B.
His Honour concluded that bail should be granted to the respondent with stringent conditions, which required that he:
(a) Not leave the State of Victoria;
(b) Not contact witnesses for the prosecution other than the informant;
(c) Obey all lawful directions of Youth Justice;
(d) Not be absent from [redacted] unless accompanied by a parent or as agreed to by Youth Justice;
(e) To attend at the front door of the premises if requested to do so by any police officer;
(f) Not to attend any school other than the school in which he is enrolled or approved to do so by Youth Justice;
(g) Not to go or remain within 1 kilometre of [redacted] save unless in the company of a parent and only for the purpose of attending upon [redacted] of [redacted];
(h) Not to go or remain within 5 kilometres of [redacted] unless in the company of a parent or approved by Youth Justice;
(i) Not to own access or use any mobile telephone or laptop other than those authorised by Youth Justice;
(j) Not to access the internet (including any social media or messaging website, application or platform) or cause any person to access the internet on his behalf except for the purpose of schooling, attending court, attending medical appointments, obtaining legal advice or as agreed by Youth Justice;
(k) Not communicate and associate with or attempt (directly or indirectly) to communicate or associate with any of the following:
(i) Any person incarcerated in any gaol or detention;
(ii) Any person whom it is believed to be a member associate (sic) of a terrorist organisation;
(iii) Any person he knows to be or purports to be in Turkey, Iraq or Syria.
(l) Not to acquire or attempt to acquire any firearm, knife and any other weapon like device;
(m) Not to acquire or attempt to acquire any substance, material, chemical or other item capable of being used to manufacture a prohibited weapon, a chemical weapon, explosive or explosive device except if that item is for reasonable domestic use;
(n) Not to access, acquire, possess or distribute any literature, recording, image or thing depicting or relating to:
(iv) Explosives, explosive devices, engineering of explosives or explosive devices and detonation of explosives;
(v) Firearms, knives and other weapon like device (sic);
(vi) Anti-surveillance or counter-surveillance
(vii) Executions of natural persons or animals;
(viii) Terrorist attacks including suicide attacks;
(ix)Propaganda or promotional material for a terrorist organisation;
(x) The practices, activities or members of a terrorist organisation;
(xi)Armed conflicts of international or non-international character.
His Honour had obviously given the matter careful thought and crafted strict and detailed conditions to deal with the minutiae of the risk that had been litigated.
Submissions
In this Court, on the topic of risk, the Director’s submission was essentially that a decision should have been made to refuse bail because the evidence before the Judge did not enable a conclusion to be reached that risk of releasing the respondent was acceptable, particularly given the catastrophic consequences if any of the attacks apparently contemplated by the respondent as discussed were put into effect.
In the Director’s written submissions reference was made to s 3AAA and s 3B of the Bail Act. A point being made was that even a slight risk might be unacceptable in a terrorism context.
It was put that the evidence revealed that the thinking of the respondent had progressed and was more specific. Knowing of the interest of police in him, as the respondent did, did not deter his thinking or communications.
Mr Ginsbourg, counsel for the Director, argued that the evidence did not descend to sufficient detail about how the various treatments would assist in dealing with the respondent’s condition and thought processes. He submitted that the evidence demonstrated uncertainty around the supervision of the respondent at school. He argued that the Judge was wrong to conclude that with conditions, the risk in releasing the respondent could be ameliorated to an acceptable level.
Ms Contini on behalf of the respondent emphasised the recent changes that had occurred in relation to the respondent and that Youth Justice had found the respondent suitable for supervised bail. She also noted an absence of steps taken by the respondent to actually carry out any of the activities he had talked about. The charges he faces are based entirely on what happened online and communications with a covert operative. She contended that the ruling and order made by the Judge was appropriate and supported by the evidence. She relied on the fact that the order was made by a specialist Court and by the President of that Court.
Analysis and conclusion
In DPP v Molinaro, Weinberg JA sitting in the trial division said of s 18A(6) of the Bail Act:[13]
Subsection (6) provides that on appeal under subsection (1), if this Court thinks that a different order should have been made, it must set aside the order that is the subject of the appeal. The principles that govern an appeal of this kind are discussed in a number of authorities, including in particular, Beljajev v Director of Public Prosecutions (Vic ) and Director of Public Prosecutions (Cth),and Director of Public Prosecutions v Johnstone,but most usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro. It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
[13][2017] VSC 624 [7] (Weinberg JA).
That is the approach that I have followed.
As counsel for the respondent has noted during her submissions, this order was made by the President of the Children’s Court of Victoria, a judicial officer of significant experience as both a Magistrate and Judge. As is obvious, the Children’s Court is a specialist Court. In my opinion that adds force to the reluctance to interfere to which Weinberg JA referred. Interference should only occur where there is clear error of law or fact or, put another way and leaving aside legal error, leads to a firm view that a different order should have been made.
The Director’s submissions before me appear to be based, in part, on the conclusion reached by Beech-Jones J in the New South Wales Supreme Court in AB v DPP in which his Honour said:[14]
One aspect of the application of a test of unacceptable risk is an assessment of the consequences of the relevant risk materialising together with the likelihood of it materialising. The assessment of whether the risk is unacceptable is also informed by the deleterious effect of refusing bail on the accused person, which in this case is significant. The acute difficulty for AB on this application is that, while the likelihood of him giving effect to his threats is relatively low, the consequences if he did so are likely to be horrific. As for the potential mitigating effects of the proposed bails conditions, in the events that transpired, AB identified a form of attack that is not addressed by even the strict bail conditions that are proposed. Even allowing for the effects on him of detention, I am satisfied that there is an unacceptable risk of AB committing a serious offence and endangering the safety of the community. It follows that bail must be refused.
[14][2016] NSWSC 1042 [55] (Beech-Jones J).
I should note that his Honour’s criticisms of the proposed bail conditions in that case do not apply in this matter. Indeed, the bail conditions here are detailed and strict. If they are complied with there will be no opportunity for this 14 year old boy without any prior criminal history to offend. The spirit of the conditions also makes it clear to the respondent that he is being carefully monitored by a number of people including mental health professionals, teachers, the police and his family as well as the Court itself.
Notwithstanding the seriousness of the allegations and the consequences if what was being described by the respondent in his online communication was carried into effect, it also remains important to keep in mind, as the Judge did in this case, that the law requires children to be treated differently, even in a case like this. For example, as T Forrest J said in Re J O:[15]
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.
[15][2018] VSC 438 [14] (T Forrest J).
Later in DPP v Molinaro, Weinberg JA noted:[16]
If a judge of this Court is of the firm view that, on the material before the Court below, there were no exceptional circumstances, or that the respondent represents an ‘unacceptable risk’ that should trigger a finding that ‘a different order should have been made’, within the language of s 18A(6). In other words, the appeal under that section should be seen as being by way of rehearing, rather than akin to judicial review of a discretionary judgment.
[16][2017] VSC 624 [7] (Weinberg JA).
I am not persuaded that the Judge failed to give proper weight to the surrounding circumstances as the Director contends. His Honour was conscious of the nature and seriousness of the alleged offending and the nature of the risk posed by the respondent. He adverted to that issue several times.
Whilst it is clearly arguable that for the 10 months preceding his arrest on 6 October 2020, the respondent was fixated with the terrorist organisation Islamic State, and had exhibited escalating preparedness and planning to engage in terrorist acts, the fact is that he took no substantive steps toward committing any such conduct and the Judge was entitled to rely on that in assessing risk.
It is correct that this alleged conduct amounted to acts of support and association concerning terrorism that fell within sections 3AAA(1)(m) and (n) respectively, and whilst those parts of the Bail Act were not specifically referred to in his ruling they were clearly in the Judge’s mind.
Whilst the respondent’s adherence to extremist ideology and support for terrorist acts had persisted despite protective intervention from his parents, school, the police and child protection services, he had not taken any practical step to carry them out and the evidence supported a conclusion that the nature and frequency of interventions if bail were granted would enable the risk to be minimised to an acceptable level.
As to the Director’s submission that there was information contained in the Youth Justice Report that raised doubt about the Respondent’s willingness to genuinely engage with bail support services, in my view that part of the report needs to be viewed in the overall context of the whole document, including the fact that the respondent was recommended for supervised bail.
The judge reached the conclusion that the bail conditions that he imposed had the capacity to mitigate the risk to an acceptable level and, in my opinion, that conclusion was open on the evidence.
I am not of the “firm view” that respondent represents an unacceptable risk and I am not persuaded that a different order should have been made.
The appeal by the Commonwealth Director of Public Prosecutions will be dismissed.
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