MA v Em
[2014] VSC 11
•23 January 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
SC R 2014 0003
IN THE MATTER of an Application for Bail by MA (a child)
Between:
| MA (a child) | Applicant |
| and | |
| EM (a police officer) | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2014 | |
DATE OF JUDGMENT: | 23 January 2014 | |
DATE OF REASONS: | 31 January 2014 | |
CASE MAY BE CITED AS: | MA v EM | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 11 | |
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CRIMINAL LAW - Application for bail – Applicant aged 16 with mild intellectual disability – Applicant initially bailed several times on successive sets of charges of dishonesty and driving offences – Applicant pleaded guilty to those charges in Children’s Court – Sentence deferred until April 2014 to allow further assessment by Client Disability Services – Applicant charged with further offences of theft from cars, theft of petrol and unlicensed driving allegedly committed whilst on bail – Whether applicant has shown cause why detention not justified – Whether respondent has shown an unacceptable risk of offending on bail – Bail granted on own undertaking with conditions including curfew, direction to attend school and prohibition on driving a motor vehicle.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Casey | Ann Valos Criminal Law |
| For the Respondent | Inspector R Koo | Victoria Police Legal Services Department |
HIS HONOUR:
Introduction
On 23 January 2014, I heard and granted an application for bail by “MA”, a child of 16. At that time, I gave very brief ex tempore reasons for my decision but advised the parties I would give detailed reasons at a later date. Those reasons follow.
Restrictions on publication
Section 534(1) if the Children, Youth and Families Act 2005 (Vic) provides inter alia that a person must not publish or cause to be published, except with the permission of the President of the Children’s Court, a report of a proceeding in that court, or of a proceeding in any other court arising out of a proceeding in that court, that contains any particulars likely to lead to the identification of (i) the particular venue of the Children’s Court in which the proceeding was heard, (ii) a child or other party to the proceeding or (iii) a witness in the proceeding. Section 534(4) deems various particulars as likely to lead to the identification of a person. In conformity with s 534, the child in this case is described as MA, the informant as EM, and various other pieces of information or persons will be described elliptically.
Background
During 2013, MA, when aged only 15, was charged with numerous offences on separate occasions and ultimately released on bail on each occasion. In particular:
a) On 8 May 2013, MA was charged with theft from cars, handling stolen goods, dealing with property suspected of being proceeds of crime, using an unregistered car, unlicensed driving, using an unroadworthy car and dangerous driving.
b) On 31 May 2014, he was charged with assault with intent to rob, attempted armed robbery, theft, handling stolen goods, attempted theft and tampering with a car.
c) On 25 June 2013, he was charged with aggravated burglary, threat to kill, assault, theft and theft of a car.
d) On 5 October 2013, he was charged shop theft, unlicensed driving, driving without registration plates, driving an unregistered car, theft, handling stolen goods and dealing with property suspected of being proceeds of crime.
e) On 16 October 2013, he was charged handling stolen goods, unlicensed driving, using an unregistered car and exceeding the speed limit by more than 25 kph (in a largely deserted industrial area at night).
f) On 16 December 2013, he was arrested for breaching a bail condition, namely a curfew, but was released to appear at the Children’s Court on 18 December 2013.
On 18 December 2013, MA appeared at the Children’s Court on a consolidation of all 42 of the foregoing charges. Several of those charges (including the charge of aggravated burglary) were withdrawn and MA pleaded guilty to the remainder. The magistrate received a report from a psychologist. The report had been ordered at an earlier hearing, on 14 October 2013. In the report, the psychologist:
a) said that MA “impressed as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour has on himself and others”;
b) opined that his “cognitive skills are well below the average range with his verbal skills falling into the ‘mildly intellectually disabled’ range … and well below his chronological age”; and
c) recommended that he “undergo a full assessment by Client Disability Services to determine his possible eligibility for specialist services”.
The magistrate took up the latter recommendation and deferred sentence until 3 April 2014 so that the necessary assessment might occur in the interim. His Honour extended MA’s bail on his own undertaking on conditions including a night curfew, compliance with directions of Youth Justice and thrice-weekly reporting to police.
On 4 January 2014, police arrested MA at his home, where he lives with his parents. Police later laid two charges of theft of car registration plates, nine charges of theft of petrol and nine charges of unlicensed driving. These offences are alleged to have occurred between 4 October and 23 December 2013. In substance, the allegations are that, having stolen the registration plates and affixed them to a car, MA would drive to service stations, fill the car with petrol and leave without paying. MA was subsequently taken before a bail justice. At that point, a Youth Justice worker indicated that she did not support any application for bail. Bail was refused.
Subsequently, whilst in custody, MA was charged with additional offences of theft of petrol and unlicensed driving.
On 6 January 2014, the matter was mentioned in the Children’s Court. No application for bail was made at that time as the solicitor handling MA’s matter was away on leave.
On 17 January 2014, the matter came before the Children’s Court again. MA’s solicitor had now returned from leave and sought to make an application for bail. The magistrate declined to hear the application. Her Honour considered that the matter should be before the magistrate who had heard the plea and extended bail on 18 December 2013. The latter magistrate was away on leave. The matter was adjourned to 3 February 2014.
MA then applied for bail in this Court which application, as indicated above, was heard and granted on 23 January 2014.
On the application, I received an affidavit from MA’s solicitor and one from the informant. I also heard viva voce evidence from “TM”, MA’s case worker at Youth Justice.
Applicant has “shown cause”
Initially, the informant opposed bail on two bases. The first basis was that, since MA is charged with indictable offences alleged to have been committed whilst on bail for another indictable offence, he had to show cause why his detention in custody was not justified.[1] However, at the hearing, Inspector Koo, who appeared on behalf of the informant, conceded that MA had “shown cause”, particularly given his youth and lack of prior convictions. In light of those and other factors, I accepted that concession. The other factors include the fact that MA’s intellectual disability is still under investigation and the fact that, were he found guilty of the new charges, it is extremely unlikely that MA would receive a custodial sentence let alone be sentenced to a term of more than the 20 days he had already spent in custody. Further, also relevant to whether cause had been shown were the matters to be discussed under the second basis for the informant’s opposition to bail, which opposition was pressed at the hearing and to which I now turn.
[1] See s 4(4)(a) of the Bail Act 1977 (Vic).
Respondent has not shown an unacceptable risk of further offending
The informant’s second basis for opposing bail was that there is an unacceptable risk that MA would commit offences whilst on bail.[2] Inspector Koo submitted that MA’s history of committing offences whilst on bail and breaching his bail conditions (for example, by being out at night in breach of the curfew and failing to report to police) was such that the risk of further offending was unacceptably high. He explained that the informant’s concern was that MA might drive a car again and crash and kill or injure himself and/or another or others. He submitted that there were no conditions short of full-time supervised care that could ameliorate the risk of further offending sufficiently to make that risk other than unacceptable.
[2] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
Mr Casey, who appeared for MA, relied on several matters in combination as defeating the argument that any risk of offending on bail is unacceptable:
First, he relied on the evidence of the case worker TM that, whilst MA had dropped out of school last year, was mixing with older boys who were not at school and had shown no inclination to return to school, since being in custody, MA had now expressed a desire to return to school and it was likely that he would be accepted into a new school.
Secondly, Mr Casey relied on TM’s evidence that, recently, MA had an experienced mentor appointed to his case, that MA had engaged well with the mentor and that the mentor would be seeing MA twice a week and could assist him to get to school and also involved in recreational and support programmes offered by Youth Justice.
Thirdly, Mr Casey relied on TM’s evidence that MA’s parents have scaled back their work commitments to ensure a greater level of supervision of their son.
Finally, Mr Casey submitted that, having spent 20 days in custody, it was apparent that MA had now recognized the reality that, if he did not comply with his bail conditions and desist from re-offending, he would be arrested and returned to custody, a prospect that he did not relish.
Inspector Koo submitted, and Mr Casey agreed, that, if I were inclined to grant bail, the conditions should include a static residence, a curfew, compliance with directions from Youth Justice, a prohibition on driving a car and a direction to attend school on school days.
In all the circumstances, whilst I accepted that MA’s behaviour in the last year or so showed there was a risk that, if released on bail, he would commit offences, I was not satisfied that there was an unacceptable risk of that type. On the evidence and submissions before me, I accepted that the risk of committing offences, including driving offences, was sufficiently ameliorated by MA’s salutary experience of 20 days in custody, his change in attitude generally and towards schooling in particular, the likelihood that he would return to school, the assistance and guidance the mentor and his case worker at Youth Justice are likely to give and the additional time MA’s parents have promised to devote to supervision of him.
Conclusion and orders
Thus, for the foregoing reasons, I was satisfied that MA had shown cause why his detention in custody was not justified and I was not satisfied that there was an unacceptable risk that, if released on bail, he would commit offences.
Accordingly, I released MA on bail on his own undertaking with the following conditions, namely that:
he must reside at [his parents’ address];
he must not leave his place of residence between the hours of 8:00 p.m. and 6:00 a.m. except in the company of a parent, support worker or school teacher and is to present himself to the front door of his residence between those hours if called upon to do so by the police;
he must comply with the lawful directions of Youth Justice, including participation in programmes;
he must not drive a motor vehicle;
if he is accepted into school, he must attend school on school days; and
he must appear at the Children’s Court [at …] at 9:30 a.m. on 3 February 2014 and surrender himself into custody and not depart without leave of the court and, if leave is granted, return at the specified time and surrender himself again into custody.
I did not include a reporting condition. Inspector Koo submitted, and Mr Casey agreed, that a reporting condition would be unnecessary and perhaps even counter-productive when the aim is to get MA back to school and involved in other worthwhile activities. After some initial hesitation, I ultimately agreed with that submission. However, since the existing bail conditions fixed by the Children’s Court on the charges the subject of the deferred sentence include thrice-weekly reporting, that reporting condition will have to be observed unless and until it is altered. All of this was explained to MA at the hearing.
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