HA (a pseudonym) v The Queen
[2021] VSCA 64
•19 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0019
| HA (a pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | MAXWELL P and KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 March 2021 |
| DATE OF ORDERS: | 10 March 2021 |
| DATE OF REASONS: | 19 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 64 |
| JUDGMENT APPEALED FROM: | [2021] VSC 96 (Tinney J) |
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CRIMINAL LAW – Trial – Bail – Appeal from refusal of bail – Appellant facing multiple charges (burglary, criminal damage, unlawful assault, 67 charges of committing an indictable offence on bail) – Appellant 15 years old – Significant intellectual disability – Vulnerability in custody – Aboriginal heritage – Post-traumatic stress disorder – Crown concession that custodial sentence unlikely – Crown concession that exceptional circumstances existed justifying bail – Whether unacceptable risk of reoffending – Factors relevant to assessing whether risk unacceptable – Appeal allowed – Bail granted – Bail Act 1977, ss 3AAA, 3A, 3B, 4AA, 4A, 4E, Mokbel v Director of Public Prosecutions [No 3] [2002] VSC 393, Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, Roberts v The Queen [2021] VSCA 28.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Kurnai Legal Practice |
| For the Respondent | Mr G Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KAYE JA:
The appellant, a 15 year old intellectually disabled child of Aboriginal heritage, was arrested on 8 January 2021 and charged with some 18 offences. On the same day, an application for bail on his behalf was refused by the Children’s Court, and his bail was revoked in respect of three other groups of charges on which he was then on bail. The appellant made a further unsuccessful application for bail to the Children’s Court on 20 January 2021.
On 11 February, the appellant applied to a judge of the Trial Division of the Court for bail. That application was heard on 26 February. As the appellant was charged with committing ‘Schedule 2 offences’ while on bail for such an offence, the judge was required to refuse bail unless the appellant demonstrated that exceptional circumstances existed that justified the grant of bail.[2] It was common ground, and the judge accepted, that such circumstances existed.
[2]Bail Act1977, s 4A (the ‘Act’).
The next question was whether, as the prosecution submitted, the appellant posed an unacceptable risk of endangering the safety or welfare of the public, and of committing an offence, while on bail. His Honour was satisfied that there was an unacceptable risk and accordingly refused bail.[3]
[3]Re HA [2021] VSC 96 (the ‘Ruling’).
The appellant appealed against that determination. Accepting that the bail decision was discretionary, and disavowing any complaint of specific error, he submitted that it was not reasonably open to the judge to conclude that he posed an unacceptable risk.[4] It was conceded on his behalf that there was a risk of reoffending but, it was submitted, the circumstances of the case compelled the conclusion that the risk was not unacceptable.
[4]Roberts v The Queen [2021] VSCA 28, [4] (Maxwell P, Niall and Emerton JJA) (‘Roberts’).
The application in the Trial Division raised questions of real difficulty and his Honour addressed the appellant’s troubled circumstances with great care and sensitivity. Ultimately, however, we were persuaded that the appeal should be allowed, and that the appellant should be admitted to bail on specific conditions directed to the risk identified by the primary judge. We made orders to that effect and said we would publish our reasons subsequently.
The point of principle raised by the appeal is that first identified by Kellam J in Mokbel v Director of Public Prosecutions [No 3],[5] namely, that the question of unacceptable risk ‘must be relative to all the circumstances’,[6] in particular the exceptional circumstances that justify the grant of bail. Where the relevant circumstances — in that case, pre-trial delay — are particularly compelling, a risk which might in different circumstances be regarded as unacceptable ‘may properly be viewed as acceptable’.[7]
[5][2002] VSC 393 (‘Mokbel’).
[6]Ibid [10] (Kellam J).
[7]DPP (Cth) v Barbaro (2009) 20 VR 717, 728 [41]; [2009] VSCA 26 (Maxwell P, Vincent and Kellam JJA) (‘Barbaro’).
As we seek to explain, the key features of the present case — the appellant’s youth and severe cognitive impairment, his vulnerability in custody and the probability that he would not receive a custodial sentence — were so powerful as to entail the conclusion that such risk as he presents is not unacceptable. It should be emphasised that the conditions of bail are directed to ensuring that the appellant is supported and supervised, so as to minimise any such risk.
Circumstances of offending
It is necessary to outline, in brief detail, the groups of charges, and the circumstances of the offending alleged in those charges, in respect of which the appellant’s bail was revoked.
The first group of charges (in respect of which Detective Senior Constable Pett is the Informant) comprised one charge of attempted armed robbery, one charge of committing an indictable offence while on bail, one charge of assault with a weapon, and one charge of unlawful assault. It is alleged that on 16 July 2020, at approximately 9:45 pm, the appellant followed a female victim through a carpark in Bentleigh, while he was holding a metal pole with a scissor blade attached to the top of it. The victim engaged the appellant by asking him what he needed or what was going on, to which the appellant responded that he needed money, while waving the pole towards the victim. The appellant’s carer then intervened, standing between him and the victim. The carer told the victim to leave and he managed to calm the appellant down, before walking him back to the care facility in which he was then residing.
The appellant was arrested and remanded in custody. On 21 July, he was granted bail by the Melbourne Children’s Court.
The second group of charges (in respect of which Senior Constable Hermans is the Informant) consisted of one charge of burglary, one charge of criminal damage, two charges of attempted theft from a motor vehicle, one charge of committing an indictable offence while on bail, and one charge of entering a private place without authorisation or excuse. It is alleged that on 9 October 2020 at approximately 7:10 pm, the appellant attended the rear of a restaurant in Bentleigh. He initially approached two vehicles, and attempted to open the front passenger side doors of both of them. The vehicles were locked and the appellant was unable to gain access to them. He then walked to the rear of the restaurant and smashed a window, gaining access to it. Having entered the premises, he looked through the victim’s belongings and then left through the front window. Approximately two and a half hours later, he attended the same restaurant and attempted to purchase some food. He was recognised as the male seen in the CCTV footage. Police were contacted and the appellant was arrested. He was subsequently released on bail on those charges.
The third set of charges (in respect of which Senior Constable Stephens is the Informant) involved eight charges, namely, one charge of burglary, one charge of theft, one charge of theft of a motor vehicle, one charge of unlicensed driving, one charge of careless driving, one charge of failing to give his name or address after an accident, and three charges of committing an indictable offence while on bail. It is alleged that on 25 December 2020, the appellant entered a unit at Dandenong through the rear door. He took possession of a set of car keys belonging to the victim, and, using them, gained entry to the victim’s vehicle. He proceeded to drive the vehicle out of the roadway. However, he lost control of the vehicle while attempting to turn into the street. As a result, he collided with another parked vehicle. The appellant then alighted from the vehicle, and walked off down the street. On the same evening, he was arrested and bailed to attend at the Melbourne Children’s Court on 24 February 2021.
The fourth set of charges (in respect of which Constable Spiliopoulos is the Informant) consisted of three charges of theft of a motor vehicle, three charges of attempted theft from a motor vehicle, two charges of theft, two charges of obtaining property by deception, one charge of aggravated burglary, and seven charges of committing an indictable offence while on bail.
The offences that were the subject of those charges were alleged to have been committed between 1 January and 3 January 2021. On 1 January, the appellant attended at a residential address in Moorabbin. He gained entry into and stole a motor vehicle, from which he stole credit cards. Later on the same day, he used those credit cards to undertake four transactions. On 2 January, the appellant made eight further transactions using the stolen credit cards. The total amount spent by the appellant over the two days was $566.90.
At 12:30 pm on 2 January, the appellant, in company with two co-accused, attended a Bunnings hardware store in Mentone. After leaving the store, the appellant and the co-accused got into a grey Hyundai vehicle which had been stolen during an aggravated burglary in Blackburn. At 9:00 pm, the appellant, with one of the co-accused, attended premises in Mt Martha in the grey Hyundai. They gained entry to a vehicle that was parked in the driveway and stole the garage and driveway remote control from the vehicle. On the following day, 3 January, at 4:45 am, the appellant travelled in the grey Hyundai, accompanied with the two co-accused, to premises in Carrum. He gained entry into the premises by cutting the flywire to a side window. Having entered the premises, the co-accused took keys to the victim’s vehicle before they were disturbed by the victim. The appellant and the co-accused fled in the stolen Hyundai. The appellant was then arrested by the informant near his residential care unit in Dandenong. He was transported to Dandenong police station.
On 8 January, the appellant’s bail was revoked by Dandenong Children’s Court. As mentioned, the appellant subsequently unsuccessfully made a further application for bail, on the basis of new facts and circumstances, at the Dandenong Children’s Court on 20 January.
Other matters
There are three other sets of criminal charges against the appellant, which need to be mentioned shortly.
On 4 February 2021, the appellant pleaded guilty in the Melbourne Children’s Court in a consolidated matter to nine charges. The magistrate found the charges proven and dismissed them, on the basis that the appellant had already spent some 27 days on remand.
On the same day at the Melbourne Children’s Court, in a separate matter, the appellant was placed on diversion in respect of charges contained in some 14 separate briefs.
In addition, on the same day, at the Melbourne Children’s Court, four other sets of charges were struck out on the basis that the appellant was doli incapax at the time of the alleged offending.
The appellant’s background
The appellant was born on 21 December 2005. He has an older half-sister and a younger brother. The appellant has had Child Protection involvement from the time of his birth. Child Protection records indicate that throughout his infancy and early childhood, he was exposed to family violence in the home, he experienced chronic neglect, physical abuse, and sexual abuse, and he was a witness to the sexual abuse of his sister. For a substantial time, he had little contact with his mother. Until recently, he had had no contact with his father since 2012, when he was seven years of age.
A report of Berry Street Take Two, dated 25 September 2017, noted that the appellant’s overall level of intellectual functioning was in the extremely low range. The appellant and his younger brother had entered the care system in July 2013. Since then he had had 70 short-term home-based care placements. During one placement he was sexually abused by another young person at the home.
The appellant has a full scale intellectual quotient of 47, with a severe global speech and language disorder, and attention deficit hyperactivity disorder (ADHD). He has also been diagnosed with Post-Traumatic Stress Disorder as a consequence of the significant trauma to which he was subjected during his childhood.
The Youth Justice Bail Service report dated 24 February 2021 records that the appellant has been assessed as having the equivalent functioning of a four to six year old child. He has also been assessed as having an inability to generalise his learning and retain information to develop appropriate insight. Accordingly, he will repeat patterns of behaviour, and while it appears that he understands his behaviour is wrong, his functioning does not allow him to make appropriate decisions. The report further states:
[HA] has developed maladaptive behaviours due to his functioning and trauma, which leaves him vulnerable to the influence of others, namely adult persons of interest, and young people known to Youth Justice. [HA] is at significant risk of sexual exploitation and has been known to follow others who are committing offences to feel a stronger sense of belonging.
Psychological assessment of the appellant
The appellant has been assessed on a number of previous occasions, and the assessment reports were tendered into evidence in the present case. They included the Berry Street Take Two assessment report dated 25 September 2017; a report of Ms Caroline May, a psychologist, dated 2 May 2018; a report of Dr Aaron Cunningham, a forensic psychologist, dated 10 May 2018; a report of Ms Carla Lechner, a clinical psychologist, dated 24 February 2020; and a Youth Justice Bail report dated 24 February 2021.
Ms May, who assessed the appellant on 26 April 2018, found that the appellant achieved a full scale IQ score of 47, which placed him in the Extreme Low Range of Cognitive Ability. His score indicated that his cognitive abilities fell below those of all but a tiny percentage of his same age peers.
Dr Cunningham, who examined the appellant on 30 April 2018, concluded that the appellant continued to present with a Post-Traumatic Stress Disorder. He noted that the appellant presented with significant cognitive impairment and symptoms of trauma that compromised his understanding of the serious wrongfulness of the conduct, with which he was then charged. Those charges included recklessly cause injury, assault with weapon, threat to inflict serious injury and make threat to kill. Dr Cunningham considered that the appellant then met the criteria for doli incapax in relation to those charges.
Ms Lechner examined the appellant on 17 February 2020 in relation to a number of charges he was then facing, including theft, criminal damage, unlawful assault, recklessly causing injury and making threats to kill. On a sub-test, she found that the appellant demonstrated an extremely poor knowledge of social rules, and that his social problem-solving was impulsive in nature. She also concluded that, in respect of the offences with which he was then charged, the appellant’s ability to evaluate his actions as seriously and morally wrong was ‘virtually non-existent’. She noted:
it is apparent that [HA] is handicapped by numerous factors in respect to his capacity for developing a sound moral code. He is of extremely low intelligence, has acute difficulties with emotional regulation, was exposed to poor role modelling in the home and continues to be within his peer network and he struggles with high chronic and longstanding post-trauma symptoms that also adversely affect his capacity to learn.
…
Managing [HA] in the community, keeping him and others safe, remains a huge challenge. … I am not aware of the therapeutic programs that support both [HA] and his support team (residential carers). This would appear to be a vital step in minimising the risk of ongoing offending behaviour.
Youth Justice Bail Service Report
As mentioned, a Youth Justice Bail Service Report dated 24 February 2021 was produced at the request of the judge. It was compiled by Ms Amanda Pennacchia, an advanced case manager, and Ms Nicolle Dowse, the acting team leader. Ms Pennacchia gave evidence at the hearing of the bail application.
In the report, it was noted that the appellant was subject to a Care by Secretary Order with Child Protection, and that he resided in a therapeutic residential care placement supported by an extensive care team. That team provided him with support for his mental health, his substance abuse, community engagement and family work. At the time of the alleged offending, the appellant was residing in premises in Dandenong conducted by Anglicare through its KEYS (‘Keep Embracing Your Success’) program. The appellant had resided in that unit since August 2020. He is currently enrolled at Springvale Special School, but due to his absconding behaviours, he has yet to attend the school. He had previously, since 2016, attended Baringa Special School.
The report noted that the appellant had previously been subject to Youth Justice Supervised Bail. However, the presiding magistrate had requested that Youth Justice take on a consultative role in the Care Team, rather than directly supervising the appellant. It was proposed that, in the present case, Youth Justice take on a more direct role with the appellant, including engaging him in weekly supervision appointments to mitigate his risks of offending. It was also proposed that, if the appellant were granted bail, he would be transported from Parkville Youth Justice Precinct, where he is presently detained, to Sale in order to commence weekend family access with his father, with whom he has been in recent contact. That access would be supported and supervised by National Disability Insurance Scheme (‘NDIS’) workers.
In her evidence, Ms Pennacchia stated that the appellant had identified that he needed something different to being supervised by a number of care workers. Accordingly, it was proposed that the appellant be reconnected with his family, in order to link him with people whom he identifies as safe, and with whom he wants to spend time. The plan is to attempt to break the cycle of the appellant being released from Parkville to his residential placement, where he has reoffended. Ms Pennacchia said:
So, we are just trying to break that cycle, do something different that he’s identified. We’ll keep him safe, we’ll keep him being more prosocial, and we’ll reconnect him back with family.
Ms Pennacchia also explained that the contact would be fully monitored and supervised. The appellant would reside in a hotel or motel accommodation, and have a series of contacts with his father over the weekend. Ms Pennacchia also explained that she would be providing supervision for the appellant on a weekly basis in the residential unit. She was concerned that more supervision than that would overwhelm him. He would continue to have weekly access with his drug and alcohol worker and his education workers.
Relevant provisions of the Bail Act 1977
As noted earlier, the appellant was charged with sch 2 offences under the Act, that are alleged to have been committed while he was on bail for a sch 2 offence. He was therefore required, by ss 4A and 4AA of the Act, to establish the existence of exceptional circumstances to justify his release on bail. It was common ground, on the hearing of the application, and the judge was satisfied, that the appellant had established the existence of such exceptional circumstances.[8]
[8]Ruling [65].
The critical question was whether the respondent had established that if the appellant were released on bail, he would endanger the safety and welfare of a person or commit an offence while on bail, as prescribed by s 4E of the Act.
Sections 3A and 3B of the Act were of particular relevance in determining that question. Those provisions were as follows:
3A Determination in relation to an Aboriginal person
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker 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
(b) any other relevant cultural issue or obligation.
Note
When considering bail for an Aboriginal person charged with a Commonwealth offence, a bail decision maker must have regard to section 15AB(1)(b) of the Crimes Act 1914 of the Commonwealth.
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a bail decision maker 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.
(2)In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3)Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
Further, s 4E(3) of the Act provides that in considering whether a risk is unacceptable, the bail decision-maker must take into account the ‘surrounding circumstances’. Section 3AAA(1) defines ‘surrounding circumstances’ to include, among other matters, the nature and seriousness of the alleged offending, the strength of the prosecution case, the accused person’s criminal history, the extent to which the accused has complied with the conditions of any early grant of bail, and whether at the time of the alleged offending, the accused was on bail. Relevantly, ‘surrounding circumstances’ also includes under sub-para (h):
any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness.
The judge’s reasons
Having accepted that the appellant had established the existence of exceptional circumstances which justified the grant of bail, the judge then turned to the question whether it had been established that the risk posed by the appellant was an unacceptable one.
In that regard, the judge noted that the alleged offending was serious, comprising a large number of separate acts of criminality involving dishonesty, unlawful intrusion in the homes of others, violence, driving a stolen motor vehicle in a problematic manner and the commission of indictable offences while on bail.[9] His Honour also observed that the strength of the prosecution case had not been put in issue.[10] Although the appellant had no previous convictions, the current offending was part of an ongoing spree which involved a very large number of charges.[11]
[9]Ibid [67].
[10]Ibid [68].
[11]Ibid [69].
In respect of the appellant’s history on bail, the judge noted:
As to the history of the applicant on bail, it has been a very poor one. In short, the applicant has shown himself to have absolutely no regard for the strictures of bail. He has seemingly continued to offend in spite of the existence of numerous grants of bail with stringent conditions, which have wholly failed to curtail his conduct. In particular, he has repeatedly ignored curfew conditions in place designed to control him and to protect the community from his offending. The serious spree of offending constituted by the Spiliopoulos matters commenced within two days of the applicant’s release on bail under stringent conditions, the last of the four grants of bail in respect of the current charges.[12]
[12]Ibid [70].
The judge acknowledged that the difficult personal circumstances of the appellant were weighty matters, including his significant intellectual disability, his emotional immaturity, his vulnerability, his young age and his Aboriginality.[13]
[13]Ibid [71]–[72].
However, the judge considered that the proposal by the Youth Justice Bail Service, if the appellant were released on bail, was ‘little different’ from that which had been offered in the past.[14] The judge expressed reservations as to the appellant’s capacity or willingness to accept, and take advantage of, the services which were offered to him.[15] His Honour accepted that the probable sentence in the case was a non-custodial one, which was a ‘very powerful matter’ supporting the grant of bail.[16] However, he considered that there was ‘an air of unreality, perhaps desperation’ to the proposal that, if the appellant were released on bail, he would be immediately reunited with his father. His Honour stated:
Here, it was proposed that he be removed from custody, go into the care of persons whom he has never met, be taken to a place that would be foreign to him, and in that forced and uncomfortable way, renew contact with a father who has been a stranger to him for most of his life. That sounded to me like a recipe for disaster, bearing in mind that he was due to appear for a contest mention of his charges a few days following the application.[17]
[14]Ibid [74].
[15]Ibid.
[16]Ibid [77].
[17]Ibid [78].
The judge also noted that the proposal included that the appellant be returned to reside in the same residential care placement in which he had resided when carrying out most of his offending.[18]
[18]Ibid [79].
The judge concluded:
In my view, the recent history of the applicant, including his very poor history on previous grants of bail, and all of the other circumstances of this case, raise it as a very real, if not almost inevitable, prospect, that the applicant may reoffend if released on bail at this time. Were he to reoffend, there would be a real, and by no means unrealistic, risk, that members of the community may be endangered by his continued offending. Such a risk could not be described, in the words of Redlich J, as ‘a tenuous suspicion or fear of the worst possibility’. Rather, I saw the risk as a real and concerning one.
Conclusion
In the end, having considered all of the circumstances of this case, I was of the view that the risk posed by the applicant of endangering the safety or welfare of the public or committing an offence while on bail was unacceptable, and was incapable of being mitigated so as not to be unacceptable by the imposition of even the most stringent of conditions.[19]
[19]Ibid [80]–[81].
Submissions
Counsel for the appellant submitted that the conclusion by the primary judge, that the appellant was an unacceptable risk, was not reasonably open in light of four particular circumstances.
First, counsel pointed to the appellant’s special vulnerability, which arose from his age, his Aboriginality, his intellectual disability, his disadvantaged background, and the diagnoses of specialists as to his psychological condition.
Secondly, counsel relied on the appellant’s particular vulnerability to being influenced by other persons, so that he would be extremely vulnerable while in custody, both in terms of his own safety and also by being prone to be influenced by others in custody.
Thirdly, counsel relied on the support that is available to the appellant, in particular by the Youth Justice Supervised Bail Support Service, his Care Team, and the disability support workers funded by the NDIS.
The fourth circumstance relied on by counsel was that the appellant is not likely to be sentenced to a term of detention if found guilty of the charges which he faces. Counsel noted that, before the primary judge, the respondent accepted that it was unlikely that the appellant would be sentenced to a term of detention.
Counsel for the respondent submitted that the judge’s conclusion that there was an unacceptable risk was well open on the evidence. Counsel noted that it was not in dispute that the alleged offending by the appellant was serious, and that the prosecution case was strong. Although the appellant had no previous convictions, nevertheless, as the judge concluded, the current offending was part of an ongoing spree of offending involving a large number of charges against the appellant. In addition, the appellant’s bail history was very poor. When he was charged with the matters in which Constable Spiliopoulos was the informant, the appellant was then subject to 19 separate grants of bail, including Youth Justice supervised bail, and he has been charged 67 times for the offence of committing an indictable offence while on bail.
Counsel noted that the judge carefully took into account the appellant’s significant personal circumstances, including his age, Aboriginality and intellectual disability. The judge was also conscious that the appellant had been on remand for 50 days, and that, if he were convicted of the charges against him, it was unlikely that he would be sentenced to a term of detention. Those circumstances did not, however, necessitate the conclusion that bail should be granted, particularly in light of the seriousness of the charges against the appellant, and his history of repeated reoffending while on bail.
Analysis and conclusion
The question on this appeal is whether the judge erred in concluding that if the appellant were released on bail, there would be an unacceptable risk that he would commit an offence while on bail, or endanger the safety or welfare of any person, for the purposes of s 4E(1)(a) of the Act. The appellant accepted that, for the appeal to succeed, it must be demonstrated that the judge’s conclusion was not reasonably open.[20]
[20]Roberts [2021] VSCA 28, [4], [30] (Maxwell P, Niall and Emerton JJA).
The appellant’s counsel properly acknowledged that, if the appellant were released on bail, there was ‘a real risk’ that he might reoffend. There would also be a concomitant material risk that in doing so he might endanger the safety or welfare of other persons. The appellant has a history of repeated reoffending while on bail. He is currently subject to 67 charges of committing an indictable offence while on bail. It is clear from the reports that a combination of a number of factors have rendered it difficult to divert the appellant from continuing to engage in offending behaviour. Those factors include his low intellectual capacity, his particularly limited level of social development, his traumatic upbringing and his psychological impairments.
The critical issue for the judge was whether, in the circumstances of the case, the risk that the appellant, if released on bail, might reoffend or endanger the safety or welfare of others was unacceptable. The resolution of that question necessarily involved the exercise of an evaluative judgement.[21] As noted earlier, the question whether a particular risk is acceptable must be viewed in light of all the circumstances. Those circumstances may be such as to render acceptable a level of risk which in other circumstances would be unacceptable.[22] Subsection 4E(3) of the Act provides that, in considering whether a risk mentioned in sub-s (1)(a) is unacceptable, the Court must take into account the ‘surrounding circumstances’ as defined by s 3AAA(1).
[21]Rogers v The Queen [2019] VSCA 214, [60] (Beach, Kaye and Ashley JJA).
[22]Mokbel [2002] VSC 393 [10] (Kellam J); Haidy v DPP [2004] VSC 247, [18] (Redlich J); Barbaro (2009) 20 VR 717, 728 [41]; [2009] VSCA 26 (Maxwell P, Vincent and Kellam JJA).
In this case, five particular circumstances, each of significant weight, were relevant to deciding whether the risk which we have described was unacceptable. The first factor was that, although the appellant is 15 years of age, he has been assessed as having the equivalent functioning of a four to six year old child. Ms Pennacchia gave evidence that when she communicated with the appellant, it was as if she was doing so with a child who was in the preparatory or first grade level at school. Section 3B of the Act reflects the underlying principle in the criminal justice system that a decision to hold a child in custody should be made only as of a last resort. In considering whether to grant bail, and in the sentencing process, courts are astute to avoid imposing a term of detention, unless there is no other reasonable disposition available.
The second, associated, factor was the appellant’s low intellectual quotient and his personal and psychological profile. As mentioned, his intellectual abilities fall below those of almost all of his same age peers. He clearly suffers from a significant intellectual disability. That disability has been compounded by the traumatic and dysfunctional circumstances of his upbringing from the time of his birth. The appellant has had very little opportunity or capacity to live a stable lifestyle which would have enabled him to acquire appropriate social skills. In that context, Dr Cunningham, in May 2018, diagnosed the appellant to have sustained a Post-Traumatic Stress Disorder as a result of the circumstances of his upbringing. More recently, Ms Lechner has assessed that the appellant presents symptoms of Complex Developmental Trauma. It is significant that he has, in the past, been assessed to be doli incapax in respect of other offending for which he has come before the courts.
The third factor was that the appellant has been assessed to be ‘extremely vulnerable to the influence of other young people whilst in custody’. According to the Youth Justice Bail Service report:
[HA] has developed maladaptive behaviours due to his functioning and trauma, which leave him vulnerable to the influence of others, namely adult persons of interest, and young people known to Youth Justice. [HA] is at significant risk of sexual exploitation and has been known to follow others who are committing offences to feel a stronger sense of belonging.
[In the conclusion to the report it is stated:]
[HA] is extremely vulnerable to other young people while in custody, both in his own personal safety, but also regarding becoming more influenced and intrenched (sic) in the criminal justice system.
The fourth relevant factor was the appellant’s Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[23]
[23]Re Chafer-Smith [2014] VSC 51, [27] (T Forrest J).
The appellant identifies as an Aboriginal person through his mother’s side. The Department of Health and Human Services is actively attempting to create a cultural plan for him. Due to his mother’s lack of engagement with the Department, his Aboriginality has only relatively recently been disclosed, and accordingly no cultural plan is currently in place. However, we note that the appellant has been referred to the Victorian Aboriginal Child Care Agency (‘VACCA’) for additional cultural support.
The fifth factor — and, in our view, the most significant — was that it is common ground that, due to his age and circumstances, the appellant is unlikely to be sentenced to a term in custody if he is found guilty of the charges which are outstanding against him. At the time of the application to the primary judge (on 26 February), the appellant had then spent some 50 days in custody. The judge, quite appropriately, viewed the fact that the appellant is unlikely to receive a custodial sentence as a ‘very significant matter’ in determining whether the risk was unacceptable.[24]
[24]Ruling [76].
The Act does not direct that bail must be granted in a case in which the length of time that an accused is likely to spend in custody if bail is refused would exceed the likely sentence that would be imposed should the accused be found guilty. Rather, s 3AAA(1)(k) and (l) specify that as a consideration which must be taken into account as part of the ‘surrounding circumstances’.
It is, nevertheless, a consideration of significant importance both in deciding whether ‘exceptional circumstances exist that justify the grant of bail’ and in considering whether such risk as an offender would present if released on bail is acceptable. Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant’s age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventive detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.
In the absence of any specific statutory provision, preventive detention is alien to fundamental principles that underpin our system of justice. This is an issue of particular concern in relation to young offenders who are denied bail. As the Hon Paul Coghlan QC noted in 2017, in Bail Review: First Advice to the Victorian Government, 80 per cent of children who have had bail refused do not go on to attract a term of detention for the offending in question.[25] Given the longstanding concern of the criminal justice system — and the community — to keep children out of custody wherever possible, these are alarming statistics.
[25]The Hon Paul Coghlan QC, Bail Review: First Advice to the Victorian Government (First Report, 3 April 2017) 96 [5.115].
In addition, as counsel for the appellant contended, in a case such as this it is quite conceivable that an accused person, with the appellant’s disabilities and psychological impairment, might feel impelled to plead guilty to the charges against him, in order to gain his freedom, when he might otherwise have exercised his right to contest the charges. Any such incentive would likewise be contrary to fundamental principle.
While each case must be decided according to its own individual facts and by reference to the defined ‘surrounding circumstances’ specified in s 3AAA(1) of the Act, in the present case, the consideration, that it is unlikely that the appellant will be sentenced to a term of detention, was necessarily a most powerful factor in determining whether, if the appellant were granted bail, the risks of him offending, or endangering others, were unacceptable.
In Roberts, the Court, in considering the kinds of exceptional circumstances which have been held to justify a grant of bail, made the following observations which are of equal application to the question of whether a risk of reoffending or endangering the public is unacceptable:
The third type of circumstance often taken into account for this purpose is the likelihood that — unless bail is granted — the time spent on remand will exceed any sentence of imprisonment which might be imposed in the event of a conviction.[26] In such a case, there is an obvious risk that continued incarceration will be productive of injustice.[27]
[26]See, eg, Re Granata [2020] VSC 879, [84] (T Forrest JA); Re Boo [2020] VSC 882, [71] (Lasry J); Re Brett [2021] VSC 10, [40] (Incerti J); Re GG [2021] VSC 12, [60] (Incerti J).
[27]Roberts [2021] VSCA 28, [46] (Maxwell P, Niall and Emerton JJA). See also El Nasher v DPP [2020] VSCA 144, [52] (Priest, T Forrest and Weinberg JJA).
Quite evidently, the five factors, that we have discussed, were compelling factors weighing cogently against a determination that, if the appellant was released on bail, the risk that he might reoffend or endanger others was unacceptable.
In determining that that risk was unacceptable, the judge was particularly concerned as to the viability of the proposal, put forward by the Youth Justice Bail Service, in respect of the appellant’s disposition if he were to be released on bail. As we have already noted, the judge considered that there was an ‘air of unreality, perhaps desperation’ to the proposal that the appellant be immediately reunited with his father.[28] The judge also considered that the proposal that the appellant be returned to live in his previous residential care placement would not be adequate, in light of the appellant’s very poor history of reoffending while subject to previous grants of bail.[29]
[28]Ruling [78].
[29]Ibid [78]–[80].
The concerns so expressed by the judge are of some substance, and were no doubt important in determining the outcome of the application. However, Ms Pennacchia, in her evidence, explained in some detail the proposed supervised bail plan for the appellant if he was released on bail. In particular, she stated that the purpose of reuniting the appellant with his father was to try to enable him to develop a positive family connection which, it was assessed, might assist to divert him from his offending behaviour. She said that a lot of work had already been undertaken with the appellant’s father to prepare him to recommence personal contact with the appellant.
Ms Pennacchia also said that the period of access would be closely supervised, with the appellant residing in a hotel under the care of a NDIS worker. A number of ‘pro-social’ activities would be planned for him. In addition, when the appellant would be returned to his previous residential placement, he would be subject to more advanced supervision and monitoring.
It is, in the circumstances, understandable that the judge should have had some reservations about the proposal so put forward by Ms Pennacchia. Nevertheless, the fact remains that the appellant, a significantly intellectually impaired 15 year old vulnerable Aboriginal child, who has been subjected to a most dysfunctional and traumatic upbringing, has come before the Court in circumstances in which, if he is convicted on the charges brought against him, he is unlikely to be sentenced to a term of detention. While the plan proposed by Youth Justice is similar to previous plans, which have been inadequate to prevent the appellant offending, the present plan does contain two additional elements that are directed to obviating that risk. In other words, notwithstanding the reservations that might be held in respect of the proposed plan, there was presented to the court a proposed disposition which was an alternative to the continued detention of the appellant. The proposed arrangements have been carefully planned — and will no doubt be carefully implemented — so as to minimise the risk that the appellant will reoffend.
As is true of almost every grant of bail, there will remain a degree of risk. Nevertheless, in our respectful view, it was not reasonably open to his Honour to conclude that the risk was unacceptable in the circumstances of this case. Given the powerful considerations to which we have referred — the appellant’s youth and childlike cognitive capacity, his vulnerability in custody and the probability that he will not receive a custodial sentence — what might in other circumstances have been viewed as unacceptable risk had properly to be viewed as acceptable.
For those reasons, we concluded that the appeal should be allowed, and that bail be granted to the appellant on appropriate conditions, namely:
(1)The appellant attend and comply with all directions of the Youth Justice Supervised Bail Support Service.
(2)The appellant reside at premises to which he is directed by Child Protection.
(3)The appellant is not to leave such premises between 8:00 pm and 7:00 am unless accompanied by a Department of Health and Human Services-approved person.
(4)The appellant is to present himself at the front door of such premises during those curfew hours upon request by a member of Victoria Police.
(5)The appellant is to attend and surrender himself to the Children’s Court at Melbourne on 17 March.
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