R v NH

[2015] VSC 227

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0067

THE QUEEN
v
NH	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2015
DATE OF RULING:	15 May 2015
CASE MAY BE CITED AS:	R v NH
MEDIUM NEUTRAL CITATION:	[2015] VSC 227

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CRIMINAL LAW – Application for bail – Theft of motor vehicle – Burglary – Attempted theft of Motor Vehicle and Criminal Damage – Armed Robbery – Offences committed while on bail for Armed Robbery, Robbery and Theft – Show cause position - Child accused – Suitability of accommodation if bail granted – Engagement with Youth Support services – No prior convictions - Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	A Hodgeman	OPP
For the Accused	S Payne	VLA

HIS HONOUR:

1. The applicant is a 15 year old boy, he will be 16 in November.  He is applying for bail on the following charges:  1) armed robbery, 1 April 2015;  2) attempted burglary, 1 April 2015; 3) attempted theft of a motor vehicle, 1 April 2015;  4) criminal damage of the same motor vehicle, 1 April 2015;  5) contravene a condition of an existing bail order, 1 April 2015;  6) commit an indictable offence whilst on bail, 1 April 2015; and, 7) theft of a motor vehicle, 31 March 2015. 

1. He was arrested on 1 April, and has been in custody since that time.  As at 31 March and 1 April the applicant was on bail for theft and armed robbery from a supermarket.  Those offences were said to have been committed on 2 February 2015.

1. It follows that the applicant bears the onus of showing cause why his continued detention is unjustified (s 4(4)(c), and s 4(4)(d) of the Bail Act 1977).  The applicant has now been detained at the Parkville Youth Residential Centre for the last six and a half weeks.  The prosecution have opposed bail on two bases:

(a)that the applicant has not discharged the onus that I mentioned a moment ago; and

(b)that he is an unacceptable risk of committing further offences.

The allegations made against the applicant are serious. The 2 February 2015 offending involves a theft from a small local supermarket and then a subsequent armed robbery in which a co-offender was alleged to have menaced a store attendant with a knife.

1. The applicant is one of two other young persons who are said to have been present and to have participated in that crime.  He was charged and bailed on those offences. Two months later and whilst on bail for that offending, the applicant allegedly carried out the offending that is the subject of this application.

1. In very brief compass it is alleged that within the space of 24 hours he:

(a)stole a silver Subaru motor vehicle valued at $4,000.  He left his mobile phone in that vehicle.  Helpfully his name was written on the phone cover;

(b)in the company of others burgled a house at Craigieburn;

(c)attempted to steal and Audi sedan and in the process smashed the front passenger side window of that car; and

(d)kept watch while two others threatened a person walking from Craigieburn Station with a kitchen knife and a screwdriver and stole that person’s phone. CCTV footage apparently exists of this entire transaction.  The applicant was arrested shortly thereafter.

He has no prior convictions.

1. Under normal circumstances a 15 year old, even one charged with relatively serious offending, could expect to be released on bail.  Conditions of that bail would include that he reside at a stable address, interact with one or more of the support networks available, usually Youth Justice, and that he comply with the directions of Youth Justice or one of its contractors.

1. The object of the exercise is to protect the community from further unlawful conduct and to assist the young person's rehabilitation.  So the question arises, why has this applicant been in detention for the last six weeks?  The answer seems to lie in the absence of a stable residential environment should he be released.  For the last five years he has lived with grandmother, apparently pursuant to a Family Court order.  This decision was founded in his mother's then drug and alcohol use and the violence of her domestic partner.

1. His grandmother no longer wishes to accommodate him.  The applicant's mother is prepared to allow the applicant to reside at her house in Broadmeadows with his two older siblings and there is now, as I understand it, no court order preventing him from doing so. Her then domestic partner has moved on an is the subject of an AVO.

1. The applicant is the subject of child protection supervision, carried out by the Department of Human Services.  They have contracted Anglicare to manage the applicant's case. His case manager is Ms Tracey Forward. She gave evidence on the application and I regarded her as an impressive witness.  She is broadly supportive of the application although she, like the police respondents and Youth Justice themselves, express reservations as to the capacity of Ms H. to supervise the Applicant.

1. Ms Austen, another impressive witness, worked for Youth Justice Adult Court Service as a court advice worker, she provided a report for the Magistrates’ Court which is only a few days old and she adopted it in evidence before me today. 

1. If the applicant is granted bail Youth Justice would provide him with support in the following areas:  General health and wellbeing, education, including encouraging Nathan to re-engage with the Gateway School including monitoring his attendance,  and cultural and family support. Such would include referring him to a program called Bridging Worx, a culturally specific program that supports young people like the applicant of a Pacific Island or Maori background.

1. The applicant would also be required to submit to the supervision  of Ms Forward from Anglicare.  It follows that if I were to grant bail, the applicant would:

(a)be subject to strict conditions, including a curfew;

(b)be living at home with his mother and siblings; and

(c)be seen each week by Ms Forward, Ms Austen and a representative from Bridging Worx.

1. I was sufficiently uncertain about this matter to request the attendance of Ms H. at court and express a wish to hear from her in evidence.  She attended court this afternoon and informed me that she was prepared to welcome Nathan into the family home, that a room had been prepared for him, and that she was prepared to support him in his interactions with the support agencies.

1. I accept Ms H. has given this evidence in entirely good faith, however I am concerned as to her capacity to carry through on these undertakings and I will reflect that concern in some of the orders that I make shortly.

1. Ultimately the questions for me are:

(a)has the applicant shows cause why his detention is not justified?

In my view the applicant has done so.  His age and the sort of sentence that he may attract when these matters are finally dealt with are sufficient to discharge that burden.

(b)has the prosecution demonstrated that on balance the applicant is an unacceptable risk of committing further offences whilst on bail?.

The answer to this question is much more difficult, particularly with the question marks that are hanging over the suitability of his accommodation.  On balance and after anxious consideration, I am satisfied that strict bail, with conditions that incorporate the intervention of Anglicare and Youth Justice, is sufficient to ameliorate the risk of reoffending to an acceptable level.

1. I am going to adjourn this application part heard for seven days, until ten o'clock next Friday morning.  Then, I will make a further evaluation as to how N. is going in complying with his bail conditions and getting his life back in order.  On that day, Mr Payne, I would like to hear from one or other, but not necessarily both of Anglicare and/or Youth Justice.