DPP v SE
[2017] VSC 13
•31 January 2017 (revised 28 February 2017)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SE |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2016 |
DATE OF JUDGMENT: | 31 January 2017 (revised 28 February 2017) |
CASE MAY BE CITED AS: | DPP v SE |
MEDIUM NEUTRAL CITATION: | [2017] VSC 13 |
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CRIMINAL LAW – bail – human rights – application for bail by Aboriginal person with intellectual disability aged 17 years – procedure to be followed when court hears applications for bail by children – identifying suitable arrangements for child’s detention when at court and procedures for conduct of bail hearing having regard to child’s age – segregating applicant as child in detention when at court – avoiding intimidation, humiliation and distress and ensuring child’s effective participation in criminal process - assessing considerations applying to determination of applications for bail by Aboriginal persons – assessing considerations applying to determination of applications for bail by children – assessing possible conditions of bail when determining applications by Aboriginal persons and children – in such cases, adopting procedural accommodations to avoid multiple and intersectional discrimination - whether applicant had shown cause why detention was not justified – whether applicant represented unacceptable risk – relationship between those criteria and considerations governing determination of applications by Aboriginal persons and children – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3), 17(2), 19(1) and (2), 23(1) and 25(3), Bail Act 1977 (Vic) ss 3A, 3B, 4(2)(d)(i), 4(4), 5(1)-(8), International Covenant on Civil and Political Rights arts 10(2)(b), 14(4) and 24(1), Convention on the Rights of the Child arts 37(c), 40(1) and (2).
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr N Watt | Victoria Police Legal Group |
| For the defence | Mr S Moglia | Dotchin Tan Lawyers |
HIS HONOUR:
SE[1] is an Aboriginal person with an intellectual disability aged 17 years who made an application in this court for bail under the Bail Act 1977 (Vic) on 16 December 2016. The application raised issues about the procedure to be adopted when this court hears applications for bail by children,[2] determining applications for bail by Aboriginal persons, determining applications for bail by children and assessing the conditions upon which bail may be granted to children, having regards to human rights and recent amendments to that Act. After considering those and other issues, I issued a procedural ruling and granted conditional bail. These are my reasons for so doing.
[1]In view of the applicant’s age, this judgment has been anonymised and is expressed in gender neutral language. ‘SE’ is a pseudonym.
[2]Section 3 of the Bail Act defines ‘child’ to have the same meaning as in the Children, Youth and Families Act 2005 (Vic) and s 3(1) of that latter Act defines a child to be a person under the age of 18 years.
Circumstances of application
SE was arrested on 14 December 2016 in relation to alleged offending occurring between 12 and 14 December 2016 and then was held for two days in detention on remand in a remand centre. After certain admissions were made, SE was charged with theft of a motor vehicle and committing an indictable offence whilst on bail. Upon a plea of guilty and with expedition, a sentencing hearing was conducted by a magistrate of the Children’s Court of Victoria on 14 December 2016.
After receiving submissions from the defence and the prosecution, the magistrate considered imposing a deferred sentence under s 414(1) of the Children, Youth and Families Act 2005 (Vic) and accordingly ordered the preparation of a pre-sentence report under s 414(2)(b). The hearing was adjourned until 22 December 2016 but the magistrate said that, due to the number of other cases listed on that day, the matter might not then be reached, in which case it would not be heard until late January 2017, for which the magistrate said that SE should be prepared.
The affidavit of SE’s solicitor, which had not been contradicted by the prosecution, established that an application for bail was made and rejected by the magistrate, who remanded SE in custody until 22 December 2016. Although the certified extract of the court order is marked ‘[n]o application for bail was made’, it is established that an application was made and rejected. In response, SE’s solicitor made an application for bail to this court, also with expedition.
While the application for bail was refused, the magistrate directed that the following issues to be taken into account in relation to SE’s detention on remand:
Custody Management Issues:
The accused is an aboriginal person
The accused may be at risk due to the following:
Withdrawal from drug addiction
Intellectual disability
Vulnerable due to age and/or appearance
Other:
MILD INTELLECTUAL DISABILITY. LAST TIME HE WAS IN CUSTODY HE WAS THE VICTIM OF AN ASSAULT ACCORDING TO THE CUSTODY MANAGEMENT NOTES OF … ALL CARE TO ENSURE HIS SAFE CUSTODY.
Recommend all reasonable assessment and supervision to ensure safe custody.Refer particularly to recommendations 122 to 187 (‘Custodial Health and Safety’ and ‘The Prison Experience’) and recommendations 234 to 245 (‘Breaking the Cycle: Aboriginal Youth’) of The Royal Commission into Aboriginal Deaths in Custody.
As can be seen, these directions drew upon the recommendations of the Royal Commission into Aboriginal Deaths in Custody. In 1991, the reports of that Commission drew attention to the grave overrepresentation of Aboriginal persons, including children, in custody and their experience of death in custody.[3] Among other things, the report led to the amendments of the Bail Act that I will analyse below. The assault in custody and custody management issues that were recorded by the magistrate are reasons why detention on remand should be avoided (see below)
[3]See Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
The second eldest of five children of a Queensland Aboriginal family, SE lives in Victoria under a Custody to the Secretary Order in a community-based residential facility. SE is well engaged with disability, Aboriginal, bail and child-protection support services. Representatives of three of those services were present in court in support of SE and the application for bail. SE attends a school appropriate for someone with special needs for four days per week, and is progressing well when the intellectual disability is taken into account.
As part of a plan for engaging with the Aboriginal family, arrangements had been made to take SE to Queensland over the holiday period and thereafter. The visits were to be supervised by a carer, who was to be present throughout. Reconnection with SE’s Aboriginal culture and heritage is an ongoing point of focus of the care team.
SE had a limited but recent and significant history of criminal offending. On 21 September 2016, the Children’s Court of Victoria imposed the sentence of a good behaviour bond without conviction for certain property and related offences, as well as for committing an indictable offence whilst on bail, in respect of offending between mid-2015 and mid-2016. The further hearing was adjourned on SE’s undertaking of good behaviour until 20 September 2017 and participation in a disability service plan was required.
Besides the offences of theft of a motor vehicle and committing an indictable offence whilst on bail which were before the magistrate on 14 December 2016, SE has been charged with other offences that are to be the subject of a contested hearing in the Children’s Court in March 2017. This alleged offending occurred after September 2016.
Without doubting the significance of the offending to which SE had pleaded guilty and the alleged offending that will be the subject of the later hearing, SE was stable and fully compliant with the bond of good behaviour for about three months from September 2016. The court had two detailed reports that so demonstrated and strongly supported the grant of conditional bail. SE has never committed a crime of violence against a person and none is likely to be committed.
Procedure to be adopted
The Charter of Human Rights and Responsibilities Act 2006 (Vic) specifies human rights in relation to children who are engaged in the criminal process. As was stated in DPP v SL,[4] those human rights
reflect the provisions of international treaties to which Australia is a party, including the International Covenant on Civil and Political Rights[5] (‘the ICCPR’) … and the Convention on the Rights of the Child[6] (‘CROC’). These provisions in turn reflect the fundamental principle of the best interests of the child,[7] which is itself-expressed in s 17(2) of the Charter ... It is generally recognised under these treaties, as it is implicitly recognised under the Charter, that children are especially vulnerable to physical and emotional harm and negative formative influence in criminal detention[8] and to discriminatory exclusion in the operation of the processes of the criminal law, and that governments and courts must take and adopt all necessary actions and procedures to protect them from that harm and influence and ensure their effective participation in those processes.[9]
In consequence of those and other human rights,[10] it was determined in SL that, when hearing and determining criminal charges brought against a child, the court must ensure that, so far as possible, the procedures adopted are age-appropriate and rehabilitation-focussed[11] and the child-defendant is segregated from adult defendants when in custody on remand at court.[12] The hearing and other procedures must avoid unnecessary intimidation, humiliation and distress on the part of the child-defendant and ensure his or her effective participation in the proceeding.[13] These requirements arise as a matter of human rights under the Charter and, on a discretionary basis,[14] under certain international obligations. They especially arise under the fundamental principle of the best interests of the child.[15] Accordingly, in SL, directions were issued in relation to the detention on remand at court of the child-defendant and the procedure to be followed at a sentencing hearing.[16]
[4] [2016] VSC 714 (29 November 2016) (Bell J) (‘SL’).
[5]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[6]Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[7]Article 24(1) of the ICCPR provides:
(1) Every child shall have, without discrimination as to race, colour, sex, language, religion, national or social origin, property of birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Article 3(1) of CROC provides:
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[8]In relation to general protection against that vulnerability, see United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’), GA Res 40/33 (29 November 1985).
[9]SL [2016] VSC 714 (29 November 2016) [7] (Bell J).
[10]The reasoning in SL was based upon ss 6(2)(b), 8(3), 17(2), 23(1), (2) and (3) and 25(3) of the Charter, arts 10(2)(b), 14(4) and 24(1) of the ICCPR and arts 37(c) and 40(1) and (2) of CROC.
[11]SL [2016] VSC 714 (29 November 2016) [4] (Bell J).
[12]Ibid [10].
[13]Ibid [15].
[14]See ibid [10].
[15]On that principle, see generally Secretary, Department of Human Services v Sanding (2011) 36 VR 221, 227-230 [11]-[23] (Bell J), ZZ v Secretary, Department of Justice [2013] VSC (22 May 2013) [54]-[71] (Bell J) and Certain Children v Minister for Families and Children [2016] VSC 796 (21 December 2016) [141]-[158] (Garde J).
[16]Ibid [25].
The human rights that were relevant in SL were equality under s 8(3) of the Charter, protection in the best interests of a child under s 17(2), segregation of child-defendants in custody from detained adults under s 23(1) and the adoption of child-appropriate and rehabilitation-focussed procedures under s 25(3). Section 6(2)(b) of the Charter requires the court to ensure fulfilment of those rights[17] because, when conducting sentencing hearings in relation to child-defendants, the court exercises functional responsibilities under them.[18] Relevant international legal sources support the adoption of the same approach upon a discretionary basis.
[17]Ibid [5]-[6].
[18]Ibid [6].
In relation to the rights specified in ss 8(3), 17(2) and 23(1) of the Charter, the reasoning in SL applies equally when the court is determining an application for bail by a child, as in the present case. As much as in a sentencing proceeding, a child in custody on remand who applies for bail must be segregated from adults in detention at the court and such an application must be heard and determined as far as possible so to avoid unnecessary intimidation, humiliation and distress on the part of the child and to ensure his or her effective participation at the hearing. That obligation arises under s 6(2)(b) because, when conducting a bail hearing in relation to a child-defendant, the court exercises functional responsibilities under those rights. Again, relevant international legal sources support the adoption of the same approach upon a discretionary basis.
The obligation of the court under s 6(2)(b) of the Charter to apply human rights has a particular salience in relation to the custody at court of children applying for bail and the procedures to be followed when hearing and determining such applications. The hearing and determination of an application for bail by a child is often the first point of contact between the court and a child in the criminal process. Where so, it marks the commencement of the court’s obligation to ensure the child’s human rights, including the right to be detained separately from adult prisoners at court and to a procedure that takes account of his or her age, vulnerability and need for rehabilitation, as well as the right effectively to participate in a legal proceeding. In this connection, I would draw attention to art 40(1) of CROC, which specifies:
the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
As was held in DPP v TY (No 3)[19] in relation to sentencing, taking the human rights of children into account in the administration of criminal justice ‘can promote both their positive development and the growth of their understanding of, and respect for, the human rights of others’.[20] Optimally, that process begins at the first opportunity, which may be the hearing and determination of a bail application by a child.
[19](2007) 18 VR 241 (Bell J).
[20]Ibid 245 [51].
The right to child-appropriate and rehabilitation-focussed procedures in s 25(3) of the Charter was engaged in SL because the proceeding in that case related to the sentencing of ‘a child charged with a criminal offence’. The right conferred by s 25(3) is the right of ‘a child charged with a criminal offence’ to ‘a procedure’ that is age-appropriate and rehabilitation-focussed. While this right clearly applies to the hearing and determination of a criminal charge against a child,[21] the required procedure is not confined to the hearing and determination of the criminal charge as such. As was held by Elliott J in Application for Bail by HL,[22] it encompasses the procedures adopted in bail applications brought in relation to the charge. Identifying the scope of the right conferred by s 25(3) broadly and purposively,[23] a bail application is a procedure in relation to a criminal charge, just as a direction or mention hearing and other like procedures would be so regarded. In any event, as in the hearing and determination of criminal charges against children, the right to age-appropriate and rehabilitation-focussed procedures in bail applications by children also arises as an aspect of the right to equality in s 8(3) because failing to follow such procedures can lead to discriminatory exclusion.[24]
[21]SL [2016] VSC 714 (29 November 2016) [4] (Bell J).
[22][2016] VSC 750 (13 December 2016) [72].
[23]DAS v Victorian Equal Opportunity and Human Rights Commission (2009) 24 VR 415, 434 [80] (Warren CJ); PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373, 384 [36] (Bell J).
[24]SL [2016] VSC 714 (29 November 2016) [4] (Bell J). As there stated, s 8(3) of the Charter provides (among other things) that every person is entitled to equal and effective protection against discrimination. Section 3(1) defines ‘discrimination’ to mean discrimination on the basis of an attribute set out in s 6(1) of the Equal Opportunity Act 2010 (Vic). Section 6(a) of that Act sets out ‘age’ as one such attribute. Sections 7, 8 and 9 define the meaning of ‘discrimination’, ‘direct discrimination’ and ‘indirect discrimination’. The risk of discriminatory exclusion arises in relation to indirect discrimination.
There was nothing in the facts and circumstances of the present case or SE’s antecedents or behaviour that would have justified procedures that did not ensure fulfilment of these human rights. SE was not a significant security risk. However, for practical reasons it was not possible to conduct the hearing in a court that was suitable having regard to SE’s age, such as Court 7A or other like court, and it was conducted in a large criminal court. The hearing could not have been conducted in a more suitable court without undesirable delay and further time in custody on remand. Further, it was not necessary to subject SE’s detention to regular judicial oversight, as I undertook in SL, as I granted the application for bail.
Accordingly, I directed that the detention on remand at court of SE and the hearing and determination of the bail application would be conducted according to the following procedures:
(a)at court, SE is neither to be handcuffed nor detained with adult prisoners;
(b)SE is to be given the opportunity to become familiar with the court precinct, the court in which the hearing is to be conducted and the hearing procedures;
(c)during hearings, counsel and I will not robe (neither counsel nor judges wig in this court) and will remain seated when speaking;
(d)during hearings, counsel for SE is to ensure that SE understands the procedure to be adopted at hearings and I as the judge will also so ensure;
(e)during hearings, SE may sit with counsel or with carers and support service officers as SE wishes;
(f)during hearings, counsel for the prosecution and SE are to speak in a language that so far as possible can be understood by SE and I will also do so;
(g)during hearings, SE is to be referred to by SE’s preferred first name; and
(h)the procedure at hearings is otherwise to be conducted in accordance with the principles explained in this ruling and the ruling in SL and, generally, all possible steps are to be taken to enable SE to understand and effectively participate in the proceeding.
These directions were not to apply where something else was required in SE’s best interests or on account of other demonstrable justification, such as legitimate security concerns.
Applications for bail by Aboriginal persons
The Bail Act was amended by the Bail Amendment Act 2010 (Vic) to introduce a new provision in relation to the determination of applications for bail by Aboriginal persons. That is s 3A, which provides:[25]
3A Determination in relation to an Aboriginal person
In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including—
(a)the person's cultural background, including the person's ties to extended family or place; and
[25]The Children, Youth and Families Act also contains many provisions requiring consideration of Aboriginal cultural issues when making decisions in relation to children, including ss 10(3)(c) (principle of best interests of Aboriginal children), 12 (decision-making principles regarding Aboriginal children) and 347(2)(d) and 482(2)(c) (cultural needs of Aboriginal children in criminal custody)
(b) any other relevant cultural issue or obligation.
Note
When considering bail for an Aboriginal person charged with a Commonwealth offence, a court must have regard to section 15AB(1)(b) of the Crimes Act 1914 of the Commonwealth.
As noted in the second reading speech for the Bail Amendment Act,[26] the amendments were introduced in response to the recommendations of the Victorian Law Reform Commission in its 2007 report in relation to bail.[27] As to s 3A, the responsible minister said:
[26]Victoria, Parliamentary Debates, Legislative Council, 29 July 2010, 3500-3 (John Lenders).
[27]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007).
Aboriginal Australians
The VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system. In recognition of this, the VLRC recommended that the Bail Act should contain a specific provision for accused people who are Aboriginal.
In line with this recommendation, the bill inserts new section 3A in the Bail Act. Section 3A requires a decision-maker to take into account (in addition to any other requirements in the Bail Act) any issues that arise due to the Aboriginality of an accused when making a determination under the Bail Act.
Under section 3A, a decision-maker would be required to take into account matters such as an obligation to attend a community funeral or participate in community cultural activities when imposing conditions of bail on an accused who is Aboriginal.
While the provision requires the decision-maker to take the evidence into account it does not require the decision-maker to reach a particular decision. The test for granting bail remains unchanged, requiring a decision as to unacceptable risk.[28]
[28]Victoria, Parliamentary Debates, Legislative Council, 29 July 2010, 3502 (John Lenders).
The discussion of bail applications by Aboriginal persons is contained in ch 10 of the VLRC report. The general context of that discussion is the gross over-representation of Aboriginal persons in custody and their experience of death in custody, as revealed in the abovementioned Royal Commission into Aboriginal Deaths in Custody. The VLRC recommended that the Bail Act be amended to include an indigenous-specific provision so as to overcome the discrimination and historical and continuing disadvantage suffered by Aboriginal people in relation to bail:[29]
It is important that … cultural factors and community expectations are taken into account when making bail decisions. Otherwise Indigenous Australians may be bailed on inappropriate bail conditions which they are more likely to breach, or remanded unnecessarily contributing to their over-representation in custody.
Without a specific direction to decision makers in the Bail Act, there is a risk that consideration of these matters will be inconsistent and will compound the historical and continuing disadvantage faced by Indigenous Australians in their contact with the criminal justice system.[30]
It was recommended that such considerations be taken into account in relation to all aspects of the bail-determination process, including assessing unacceptable risk and setting bail conditions.[31] This is reflected in the terms of s 3A, which applies to all determinations made under the Bail Act. While s 3A requires the specified considerations to be taken into account in relation all such determinations, the provision does not mandate a particular outcome; depending on the circumstances of the case, bail may be refused to an Aboriginal applicant who, for example, poses an unacceptable risk to community safety (s 4(2)(d)(i)) even after taking s 3A into account. Examples from the decided cases are discussed below.
[29]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007) 180 (footnote included).
[30]Bail ‘criteria (many of which focus on western concepts) have the potential to disadvantage Indigenous people applying for bail’: Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture: Final Report, Project 94 (2006) 165.
[31]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007) 179.
The specific requirement in s 3A of the Bail Act that Aboriginal cultural issues be taken into account in relation to bail applications should be read with the cultural rights that Aboriginal persons possess under s 19 of the Charter, which provides:
19Cultural rights
(1)All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language.
(2)Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—
(a) to enjoy their identity and culture; and
(b) to maintain and use their language; and
(c) to maintain their kinship ties; and
(d)to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
Section 19(2) operates with s 6(2)(b) of the Charter to supply an additional basis upon which the court should, when conducting bail hearings and determining bail applications, respect the cultural rights of Aboriginal persons.
In SL, age-appropriate and rehabilitation-focussed procedures were adopted for reasons that included recognition of the child-defendant’s right to equality before the law under s 8(3) of the Charter (among other provisions) because failing to do so could lead to discriminatory exclusion.[32] It was a case in which, to achieve equality before the law, the court had to treat a child-defendant differently to how an adult-defendant would have been treated. That kind of positive discrimination was not only permissible (see s 8(4)) but required on account of human rights. As correctly explained in the statement of compatibility[33] relating to the introduction of s 3A of the Bail Act, Aboriginal cultural issues must likewise be taken into account when hearing and determining bail applications by Aboriginal persons in order to achieve equality before the law:
However, the right to be free from discrimination in section 8(3) is qualified by section 8(4) of the charter, which provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. This recognises that substantive equality is not necessarily achieved by treating everyone equally, and that affirmative action or positive discrimination may be necessary to achieve equality for some groups in the community. As the purpose of section 3A is to recognise historical disadvantage, which has led to the overrepresentation of Aboriginal people on remand, in accordance with section 8(4) of the charter, it constitutes permissible discrimination.[34]
[32][2016] VSC 714 (29 November 2016) [4] (Bell J).
[33]See s 28(1)-(4) of the Charter.
[34]Victoria, Parliamentary Debates, Legislative Council, 29 July 2010, 3495 (John Lenders).
The cultural background of Aboriginal persons and their ties to extended family or place have been taken into account under s 3A of the Bail Act in a number of cases in the court. In R v Chafer-Smith[35] the accused was aged 18 years and in a show-cause position. Bail was opposed upon the ground that the accused was an unacceptable risk. T Forrest J was urged by the applicant to apply s 3A ‘in the light of the report of the 1991 Royal Commission into Aboriginal Deaths in Custody, the vast statistical over-representation of Aboriginal and/or Torres Strait Islander Australians held in custody and current overcrowding in custody’.[36] His Honour took these considerations into account, but refused bail:
In the circumstances … I consider that there is a significant risk that the applicant will repeat [the] type of offending should I grant bail and should that risk become reality, the consequences may well be catastrophic. I have considered the applicant's Aboriginality, as I must under s 3A of the Bail Act. I am obliged to take into account any issues that arise therefrom. I accept that Aboriginal Australians are very significantly overrepresented in our prisons and I consider that if this were a marginal case where a decision to grant bail or refuse it was a close run thing, then s 3A considerations may well operate to determine the application in the applicant's favour.[37]
[35][2014] VSC 51 (21 February 2014) (T Forrest J).
[36]Ibid [23].
[37]Ibid [27].
In DPP v Hume[38] the applicant’s Aboriginal kinship obligations to his mother were taken into account under s 3A of the Bail Act. However, it was determined that these were not sufficient to overcome the prosecution objections that the applicant represented an unacceptable risk.[39]
[38][2015] VSC 695 (8 December 2015) (Hollingworth J).
[39]Ibid [63].
The applicant for bail in TM v AH[40] was an Aboriginal aged 14 years who had an intellectual disability. He was in a show-cause position and relied upon a combination of factors. The prosecution opposed bail upon the grounds of unacceptable risk. TM was refused bail by the magistrate after receiving a custodial sentence. Application for bail was then made in this court. The case of TM therefor has some similarities with the present case. Croucher J decided that, in the circumstances, bail should be granted. In determining that cause had been shown by a combination of factors, his Honour said:
I am satisfied that TM has shown cause why his detention in custody is not justified. In particular, I am satisfied that TM’s tender age, his intellectual disability, his lack of prior convictions, the requirements of s 3A of the Bail Act, the reasonable prospect that he will receive a non-custodial sentence on appeal, and on the outstanding charges, and the proposed regime put in place for his release all, in combination, compel the view that his further detention in custody is not justified.[41]
His Honour also determined that the applicant was not an unacceptable risk when the conditions of bail were taken into account.[42] I am of the same view in the present case.
[40][2014] VSC 560 (5 November 2014) (Croucher J) (‘TM’).
[41]Ibid [31].
[42]Ibid [32].
In DPP v Mitchell[43] the applicant was an Aboriginal woman aged 22 years who had two young children and another on the way. While she was charged with obtaining financial advantage by deception, the facts were that she had travelled on public transport on a child’s ticket. Granting bail, T Forrest J said:
I should add that I have been required to take into account the applicant’s Aboriginality, by virtue of s 3A of the Bail Act 1977. In the context of this application I would have granted bail regardless of any impact from that provision. That said, over policing of Aboriginal communities and their overrepresentation amongst the prison population are matters of public notoriety.[44]
[43][2013] VSC 59 (8 February 2013) (T Forrest J).
[44]Ibid [13].
The application for bail in Kirby v The Queen[45] was granted after taking into account the strong family ties of the Aboriginal applicant with the local community.
[45][2013] VSC 602 (31 October 2013) [7] (Dixon J).
In the present case, SE is an Aboriginal person and a child and a person with an intellectual disability[46] who possesses human rights under the Charter in all three of those capacities. In understanding what is at stake for SE as an individual and when applying these rights, it is necessary for the court to recognise that different forms of discriminatory disadvantage and vulnerability may be experienced by Aboriginal persons, children and persons with intellectual disability and that someone who is disadvantaged and vulnerable in all three discriminatory respects is in a position of exacerbation. The disadvantage and vulnerability suffered by persons who experience discrimination on multiple grounds, or who experience discrimination upon multiple grounds which intersect, are commonly different and greater in nature than is the case with discrimination upon a single ground.[47] In adopting procedures and making determinations under the Bail Act that take account of SE’s age, Aboriginality and intellectual disability, I have therefore borne in mind that the different forms of SE’s discriminatory disadvantage and vulnerability likely cumulate and interact, making accommodation even more necessary.
[46]As to the Charter and intellectual disability, see the human right to equal protection of the law without discrimination and to protection against discrimination in s 8(3) and the definition of ‘discrimination’ in s 3(1), and the list of attributes in s 6 of the Equal Opportunity Act 2010 (Vic) (especially ‘disability’ in para (e) and the definition of that term in s 4(1))
[47]Nicholas Bamforth, Maleiha Malik and Colm O’Cinneide, Discrimination Law: Theory and Context (Sweet & Maxwell, 2008) 531 ff.
Applications for bail by children
As discussed in Woods v DPP (Vic),[48] detaining children on remand is to be avoided where possible because, when in detention on remand, they are especially vulnerable to long-term physical and emotional harm and negative formative influence:
The detention of young people on remand can have deleterious consequences for them and the community which are out of all proportion to the purpose of ensuring appearance at trial and protecting the community. It separates them from their families and the community, disrupts their education and employment, causes them to associate with other young offenders at a vulnerable time in their lives, often (as in the present case) leads to them being held in a police lock-up rather than a youth detention facility, deprives them of access to therapeutic programs and increases the risk of them being given a sentence of incarceration.[49] Despite these powerful considerations supporting bail for young people, there will be cases where refusing bail is demanded as a last resort by even stronger countervailing considerations. This is not one of them.[50]
[48](2014) 238 A Crim R 84 (Bell J) (‘Woods’).
[49]See Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (Research Paper No 125, Australia Institute for Criminology, 2013).
[50]Woods (2014) 238 A Crim R 84 (Bell J) 109-110 [95]; see also art 40(1) of CROC, referred to above.
In recognition of the deleterious consequences of detaining children on remand except as a true last resort, the Bail Act was amended by the Bail Amendment Act 2016 (Vic) to introduce a new provision in relation to determination of applications for bail by children. That is s 3B, which provides:
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a court must take into account (in addition to any other requirements of this Act)—
(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.
As noted in the second reading speech of the Attorney-General for the Bail Amendment Act,[51] the amendments were introduced in response to a review conducted by the Department of Justice and Regulation in 2015 and the abovementioned VLRC report of 2007. In significant part, the review was carried out in response to general ‘concerns about the steep increase in the number of children arrested and held on remand’ and to particular concerns that ‘[r]epresentation of Indigenous children within the criminal justice system is disproportionately high’.[52] In relation to s 3B, the Attorney-General said:
[51]Victoria, Parliamentary Debates, Legislative Assembly, 25 November 2015, 4967-8 (Martin Pakula).
[52]Ibid 4968.
In all other areas of the criminal justice system children are treated differently from adults. We have a dedicated Children's Court, and a youth justice system that provides a range of responses to children — all of which are tailored to the special needs of children and the particular importance of rehabilitating children before they become adult offenders. This bill amends the Bail Act to bring the bail system into line with the special rules that apply to children elsewhere in criminal justice processes by:
creating new child-specific factors that address the particular needs of children to be considered in bail decisions; and
implementing child-specific recommendations in the 2007 Victorian Law Reform Commission Review of the Bail Act — Final Report …
…
This is a more appropriate response to offending by a child. Remanding children should be a last resort. Victoria does not want children to become entrenched in the criminal justice system.[53]
[53]Ibid.
The discussion of bail applications by child-defendants is contained in ch 9 of the VLRC report and is extensive. The general context of that discussion[54] was the particular vulnerability of children in the criminal justice system and the over-representation of Aboriginal children under arrest and on remand, in apparent contradiction to the recommendation of the Royal Commission into Aboriginal Deaths in Custody that arrest and remand for Aboriginal children be a matter of last resort.
[54]See Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007) 150-1.
Among other things, the VLRC recommended[55] the inclusion of child-specific considerations in the Bail Act, based upon similar provisions now to be found in s 362(1) of the Children, Youth and Families Act applying to sentencing in the Children’s Court of Victoria. The report stressed the need for bail conditions to be no more onerous than necessary and consistent with the human rights in the Charter.[56] The terms of s 3B reflect this recommendation.
[55]Ibid 156.
[56]Ibid 158 and ch 7.
The considerations specified in s 3B in relation to children generally are closely connected with the considerations specified in s 3A in relation to Aboriginal persons. In the case of an application for bail by an Aboriginal child, the purpose of the two provisions overlap and they must therefore be read and applied together. The Aboriginality of such an applicant will often need to be taken into account under s 3A when considering the matters specified in s 3B. In the present case, Aboriginal cultural issues were taken into account under s 3A as regards the considerations specified in s 3B(1)(b) because bail would facilitate, but continued remand would have frustrated, the intended contact with SE’s Aboriginal family in Queensland. That was a significant consideration because, on the evidence in the reports that were provided to the court, maintaining that contact was an important aspect of SE’s developing individual and group identity as a young Aboriginal and would contribute to SE’s rehabilitation.
As with s 3A, s 3B requires the specified considerations to be taken into account in relation all determinations under the Bail Act in applications by children, but it does not mandate a particular outcome; depending on the circumstances of the case, bail may be refused to child-applicant who, for example, poses an unacceptable risk to community safety (s (4(2)(d)(i)) even after taking s 3B into account.
Conditions of bail in relation to children
When determining whether an applicant for bail represents an unacceptable risk (s 4(2)(d)(i) of the Bail Act), the court is required by s 4(3) to take the following considerations into account (among others):
(a) the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(ba) whether the accused has expressed publicly support for—
(i) a terrorist act or a terrorist organisation; or
(ii) the provision of resources to a terrorist organisation;
(c) the history of any previous grants of bail to the accused;
(d) the strength of the evidence against the accused;
(e)the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f)any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
One important element in this provision is para (f) which makes clear that consideration of conditions has general significance under the modernised statutory regime.[57] When determining an application for bail by a child (and especially when he or she is Aboriginal), consideration of conditions has a particular salience. As in the present case, the imposition of appropriate conditions will frequently be a basis upon which remand of a child in custody can be avoided so that such remand is truly maintained as a matter of last resort.
[57]Woods (2014) 238 A Crim R 84, 99 [46] (Bell J).
There is a general discussion in Woods of the role of conditions in the operation of the provisions of the Bail Act.[58] Where a court is considering the release of an accused person on bail, consideration of conditions must be approached in a certain order (s 5(2)), conditions must only be imposed for the purposes of bail (s 5(3)) and a least-restrictive principle applies (s 5(4)). A purpose of the provisions relating to conditions is to ensure that the conditions of bail do not go beyond the purposes of bail and that unreasonable and unjustified restrictions upon the human rights of persons are not imposed.[59] In relation to children, it is necessary to consider the need for conditions to be no more onerous than necessary and not to constitute unfair management of the individual (s 3B(1)(g)).
[58]Ibid 103-108 [60]-[84].
[59]Ibid 106 [76], 108 [84].
Because ss 3A and 3B apply when making all determinations under the Bail Act, the specified considerations must be taken into account when determining whether, in the light of possible conditions, an unacceptable risk has been established (ss (4(2)(d)(i) and 4(3)(f)) or (where relevant) the applicant has not shown cause (s 4(4)) or exceptional circumstances do not exist (s 4(2)(a),(aa) and (b)). The considerations must also be taken into account when determining the content of any such conditions. In their association with the provisions of the Bail Act that allow release on conditional bail, the purpose of ss 3A and 3B is that children, and especially Aboriginal children, should, where possible, be released on bail on appropriate conditions rather than remanded in custody. Their purpose is to ensure that children, and especially Aboriginal children, are protected as far as possible from that physical and emotional harm and that negative formative influence to which they are especially vulnerable in detention on remand, acknowledging that such detention may be necessary as a matter of last resort.
There is no question, however, that strict conditions can be imposed when this is necessary (for example) to ensure the safety and welfare of members of the public (s 5(3)(c)). Equally there is no question that where, even after consideration of possible conditions, an unacceptable risk is established (s 4(2)(d)(i)), bail must be refused, and the same is the case (where relevant) when cause is not shown (s 4(4)) or exceptional circumstances do not exist (s 4(2)(a),(aa) and (b)).
Determination of present application
Turning now to the determination of SE’s application, the general principles in relation to bail are discussed in Woods.[60] I adopt that discussion of those principles in the present case.
[60](2014) 238 A Crim R 84 (Bell J).
A presumptive entitlement to bail is conferred in the circumstances covered by s 4(1)(c) of the Bail Act, which provides:
4 Accused held in custody entitled to bail
(1)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.
SE was being held in custody in the circumstances covered by this provision because the magistrate in the Children’s Court adjourned the sentencing hearing pending the production of a pre-sentence report. If s 4(1)(c) had applied, SE would have been entitled to bail in the meantime, unless it was not desirable in the public interest, as to which the onus would have been on the prosecution.
However, SE’s presumptive entitlement to bail under s 4(1)(c) was subject to s 4(2) because s 4(2) applies ‘[n]otwithstanding the generality of the provisions of [s 4(1)]’. According to s 4(2)(d)(i), the court must refuse bail if the court is satisfied that the applicant is an ‘unacceptable risk’,[61] as to which the onus is on the prosecution.[62] The applicant’s presumptive entitlement to bail is thereby qualified.
[61]The unacceptable risk referred to in s 4(2)(d)(i) is the risk that
[62]Woods (2014) 238 A Crim R 84, 99 [43], 102 [58] (Bell J), applying Dale v DPP [2009] VSCA 212 (21 September 2009) [28] (Maxwell P, Nettle JA and Lasry AJA); where the accused is in a show cause position, cf Robinson v The Queen (2015) 47 VR 226 (Maxwell P, Redlich and Priest JJA).
Under s 4(4), the court shall refuse bail to a person (such as SE) charged with committing specified offences (including committing an indictable offence while on bail: see ss 4(4)(d) and 30B) unless the accused ‘shows cause why his detention in custody is not justified’, as to which the onus is on the accused.[63] By contrast with s 4(2), s 4(4) is not expressed to apply notwithstanding the generality of s 4(1). However, it is clear from the structure of s 4 as a whole and the mandatory nature of the statutory command in s 4(4) that the applicant’s presumptive entitlement to bail is also thereby overridden.
[63]Woods (2014) 238 A Crim R 84, 100 [51] (Bell J).
Showing cause
The question whether an applicant for bail has shown cause why his or her detention in custody is not justified must be assessed according to the facts and circumstances of the individual case. Cause may be shown by reference to an individual factor or (more usually) to a combination of factors.[64] In TM, for example, cause was shown by an applicant for bail who was an Aboriginal child by a combination of factors (see above), and the child applicant in Woods also showed cause on that combined basis.[65]
[64]Ibid 100 [51], citing DPP (Vic) v Harika [2001] VSC 237 (24 July 2001) [47] (Gillard J).
[65]Woods (2014) 238 A Crim R 84, 110 [98] (Bell J).
In the present case, SE showed cause why detention in custody was not justified by a combination of factors. I took into account SE’s Aboriginality under s 3A of the Bail Act and minority under s 3B. SE was well-engaged with a range of support services, representatives of which were present in court and supported SE and the application for bail. While SE had engaged in recent offending, there had been compliance with the bond abovementioned conditions for three months and SE was going well at school. Moreover, the prosecution did not establish that SE represented an unacceptable risk.
Unacceptable risk
The question whether an applicant for bail represents an unacceptable risk under s 4(2)(d)(i) of the Bail Act is not whether he or she represents no risk but whether any risk is unacceptable. This is an evaluative task that must take into account a range of considerations, including the nature of any risk and, especially, whether any risk can be managed acceptably by the imposition of appropriate conditions.[66]
[66]See generally ibid 98-100 [41]-[47] and authorities therein.
The main focus of the opposition of the prosecution to SE being granted bail was that there was an unacceptable risk that, if released on bail, SE would commit offences, as had occurred on previous occasions. It was not contended that SE might not answer bail or might endanger the safety or welfare of members of the public or interfere with witnesses. The prosecution relied upon the frequency of the offending that had occurred in mid-2015 and 2016, which suggested that SE had poor self-control and was not respectful of the authority of either carers, the police or the law.
While these submissions reflected understandable concerns and I accepted that there was some risk of offending whilst on bail, I was not persuaded that the risk was unacceptable. Taking into account the reports that had been filed, SE’s offending was likely due to immaturity, especially taking the intellectual disability into account, and to SE coming to personal terms with life circumstances. The successful compliance with bail conditions for three months and record of school attendance suggested the existence of a genuine commitment on the part of SE to building a positive and productive future.
Moreover, taking into account that SE was an Aboriginal person aged 17 years with an intellectual disability, detention on remand was highly undesirable because of the high risk of physical and psychological harm and negative formative influence to which SE would be exposed (see generally ss 3A and 3B). In this connection, I noted that the magistrate had recorded that SE had been the victim of an assault when previously in detention on remand and had special vulnerabilities that gave rise to protective issues (see above). Release on conditional bail was the clearly preferable option (see s 3B(a)).
Importantly, release on bail would facilitate the planned contact in Queensland with SE’s Aboriginal family (see ss 3A and 3B(b) and above) and SE’s education(see s 3B(d)), both of which were likely to be important rehabilitative influences. Release on bail would ensure that SE’s living arrangements would be continued without disturbance (s 3B(c)). This was a particularly important consideration because those responsible for SE’s care so advocated. Having regards to these and other considerations, including the nature of the offending, it was my view that the risk of further offending could be acceptably managed by the imposition of appropriate conditions, including a curfew. SE therefore did not represent an unacceptable risk.
In the circumstances, SE was released on bail according to an order in the following (redacted) terms:
[SE] is admitted to bail on [SE’s] own undertaking until 22 December 2016 (bail after that date will be a matter for the Children’s Court of Victoria) on the following conditions:
1.[SE] is to surrender … into custody at the Children’s Court of Victoria at the time and place of his hearing on 22 December 2016 and then not depart without leave of the court and, if leave is given, is to return at the time specified by the court and surrender into custody.
2.[SE] is to reside at [a specified address] or as otherwise directed by the Department of Health and Human Services (to avoid doubt, the Department may direct that [SE] live elsewhere for short periods as part of [a] rehabilitation and development program).
3. [SE] is to obey all lawful directions of Youth Justice.
4. [SE] is not to associate with the co-accused …
5.[SE] is not to leave [the place of] residence between 10.00 pm and 6.00 am unless accompanied by a Department of Health and Human Services worker or a nominee of the Department of Health and Human Services.
(i) … 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.
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