Re AB
[2016] VSC 446
•2 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0094
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by AB
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15 July, 2 August 2016 |
DATE OF RULING: | 2 August 2016 |
CASE MAY BE CITED AS: | Re AB |
MEDIUM NEUTRAL CITATION: | [2016] VSC 446 |
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CRIMINAL LAW – Application for bail – Aggravated burglary – Burglary – Theft – Theft of motor vehicle – Unlicensed driving – Criminal damage – Reckless conduct – Possess methyl amphetamine – Commit offences while on bail – Show cause position - Child accused, aged 13 years - Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Williams | Victoria Legal Aid |
| For the Respondent | Mr M. Sontag | Office of Public Prosecutions |
HIS HONOUR:
This application proceeded over two days; 15 July 2016 and today (2 August 2016). At the conclusion of the first day, I granted the applicant bail on reasonably strict conditions. Despite the applicant committing two significant breaches of those conditions, I have effectively extended that grant of bail today. These are my reasons for doing so.
Background/Summary of offending
The applicant is a 14 year old aboriginal child, who was remanded in custody on 10 June 2016. At that stage, he was aged 13 years 11 months. Prior to his remand, the applicant resided at a ‘Berry Street' unit in Shepparton under the care of the Department of Human Services.
The applicant has no prior convictions, however in addition to the alleged offending giving rise to his present detention (which I shall refer to as ‘the June offending’) he has a number of charges pending for offences alleged to have occurred on 23 February 2016, and is awaiting sentence on numerous charges following a consolidated plea hearing that proceeded on 30 May 2016. The sentence for the consolidated charges was set down for 22 August 2016, apparently to allow time for a Children’s Court Clinic assessment and a Youth Justice pre-sentence report.
I have been advised this morning that all matters, including the June offending, will now be dealt with at the Children’s Court at Shepparton on 22 August 2016; that is a little under three weeks away.
The 23 February offending
On 23 February 2016 it is said that the applicant, in the company of three other young persons (aged 15, 16 and 17), stole a parked car from the Narre Warren Station car park at about 10.30 am. The applicant and a co-accused are said to have then stolen petrol from an Officer service station, and caused damage to property (fences and hedges) in the context of careless and unlicensed driving, before abandoning the vehicle at Newborough. Approximately a gram of cannabis was later located in the vehicle. At about 12.00pm, on 23 February, the applicant and one of the co-accused are alleged then to have flagged down a car at Newborough, approached the car, opened both doors and demanded that the driver get out of the car. The applicant was said to be holding an unknown weapon while making these demands. The applicant and co-accused fled on foot after the driver operated the horn. The police were called and the applicant and co-accused were arrested. They were transported to the Moe Police Station and, at the time of their arrest, one of the co-accused had about him a screwdriver and an oyster knife.
During the applicant’s record of interview he is said to have made full admissions to the allegations put to him, although he denied having a weapon in his hand as he demanded the driver get out of the car at Newborough. He was charged with theft of a motor vehicle, driving without a license, armed robbery, attempted armed robbery, unlawful assault with a weapon, possessing a controlled weapon without lawful excuse, possessing cannabis, theft of petrol, loitering with intent to commit an indictable offence and careless driving. He was bailed to appear before the Latrobe Valley Children’s Court on 5 April 2016. As I have said, I understand this matter has now been transferred to the hearing at Shepparton on 22 August 2016.
The consolidated charges
The consolidated plea hearing dealt with charges by informants Johnson, Irdman, Morell, Davis and Calvert and concerned alleged offending between December 2015 and April 2016 (not including the 23 February offending described above). In short, the consolidated charges included theft from a shop, multiple charges of property damage (primarily at a Shepparton ‘Berry Street’ unit where the applicant then resided), committing indictable offences whilst on bail, breach of bail conditions, possessing a controlled weapon, use of methamphetamine, making threats to kill, and threats to cause serious injury and threats to damage property. The targets of the threats were apparently Berry Street workers and Berry Street property.
The June offending
As I have observed, it is this offending that is the subject of the current bail application. As at 5 June 2016, the applicant was on, in total, nine sets of bail resulting from various of the charges described above.
It is alleged that on the night of 5 June 2016 the applicant entered a commercial premises in Shepparton, ransacked the office and broke into a truck belonging to the business. Car keys are said to have been taken from inside the office and it is alleged that the applicant used these keys to steal a company car. A small safe was also taken from the office and it is alleged that the applicant later cut this safe open and stole $8,000. The stolen vehicle was later located by police.
It is then alleged that the applicant, with a co-accused, broke into another commercial premises and stole around $50 in cash. It is said that the applicant and the co-accused stole two utes from that commercial premises and drove away. Later that evening or early the next morning, the applicant is further alleged to have broken into another retail premises, ransacked it and stolen about $300 from the cash float. About one hour later, the applicant and the co-accused are said to be captured by CCTV having broken into yet another commercial premises, ransacked that premises and stolen power tools and the like. Police were notified and attended, and it is alleged that the applicant and the co-accused fled the scene in the vehicles they had previously stolen.
About 50 minutes later, the applicant is said to have arrived at the Mooroopna Mitre 10 store in one of the stolen utes. He and a co-accused are said to have ransacked the premises, stolen about $20 from the cash register and damaged property. About one hour later (5.45am), they made an unsuccessful attempt to break into Shepparton Brake and Clutch, causing damage to the shop door. They were also said to have kicked in a door at Dulux Shepparton, stolen a tin of paint from there and some cash, ransacked the office of Liberty Kitchen and broken into Russell’s Ice Service and Haig’s Carpet Centre, from which they stole $895 cash.
In addition to this series of offences, it is alleged that the applicant, on 5 June 2016, used a stolen credit card to purchase food and phone credit to the value of $250. The card had been stolen from a parked car at about 7.00pm that evening. When interviewed, the applicant claimed that he had found the credit card, but otherwise made full admissions. He was charged with 10 counts of burglary, 8 counts of theft, 3 counts of theft of a motor vehicle, theft from a motor vehicle, 2 counts of unlicensed driving, criminal damage, reckless conduct endangering serious injury, dangerous driving, obtaining property by deception (4 counts), possession of methylamphetamine, use of methylamphetamine and committing indictable offences whilst on bail. The applicant was remanded in custody until 1 July 2016. He did not make an application for bail.
On 1 July the applicant’s matters were adjourned to 5 July 2106 and, on 5 July, the applicant’s bail application was understandably refused by a magistrate at the Shepparton Children’s Court. The applicant, charged with committing indictable offences whilst on bail, is in a show cause position.
The present application
On the first day of this application I was not entirely satisfied that a satisfactory plan was in place for the release of the applicant. He had accommodation available to him at a ‘Berry Street’ unit in Shepparton, and school arrangements and DHS supervision were also available. There was a prospect that he could return to live with his mother in Wallan but, regrettably in my view, this has not yet occurred and is unlikely to occur in the next three weeks. The applicant’s compliance with the interim bail conditions has been fair only. There is no evidence that he has consumed drugs, and there have been passable explanations for two days’ absence from school. It is more difficult, however, for the applicant to provide any satisfactory explanation for two nights spent completely absent from the Berry Street unit in breach of a curfew condition that I imposed. Mr Williams, for the applicant, accepted that the explanation that he spent time staying a female friend’s house was hardly satisfactory. I agree with him.
My initial response this morning was to revoke bail and remand the applicant in custody. The alleged offending is serious, and much of it committed during curfew hours. Upon reflection, I have decided against this course. AB has just turned 14 and has not had an easy start to his life. In my view he is an intelligent boy. The community has a vital interest in his rehabilitation at this early stage of his life. If I were to remand him back into custody for the three weeks before the Children’s Court hearing of these matters, the small steps that he has taken so far (he has not offended whilst on bail and has, by and large, attended school) will be undone. If I grant bail, he has a chance to build on these steps and demonstrate to the sentencing magistrate that he has the capacity to comply with court orders and respect the law. There is some prospect that a sentencing magistrate may consider that the time served in custody is sufficient in all the circumstances (including his age and background) and that court-imposed supervisory orders aimed at the rehabilitation of the applicant are appropriate.
The applicant will be accommodated whilst on bail by the Department of Human Services. In practice, this will mean that he will reside at a Berry Street unit (a different unit to the one where the consolidated charges were allegedly committed) under the care of two full-time Department of Human Services workers and a therapeutic worker who comes in twice a week. I am conscious that the applicant presents a risk of reoffending that cannot altogether be ameliorated by the imposition of conditions upon this grant of bail. Notwithstanding that, I consider that the community has a vital interest in his rehabilitation and it is appropriate to reflect this interest in this grant of bail.
I also consider that the conditions that I shall shortly set out minimize this risk to an acceptable level over the three week life of this bail order. I have also taken account of s 3A of the Bail Act 1977.
The applicant is bailed on his own undertaking to appear at the Shepparton Children’s Court at 10:00am on 22 August 2016. The following conditions shall apply:
1.The said AB reside as directed by the Department of Human Services.
2.The said AB not leave the residence at which he is directed to reside between the hours of 6:00pm and 6:00am.
3.The said AB present at the front door of the residence at which he is directed during the curfew hours at the request of any member of the Victoria Police.
4.The said AB hand over his mobile phone to a worker of Department of Human Services, to be returned following 22 August 2016.
5.The said AB obey all lawful directions of Child Protection or Youth Justice;
6.The said AB not consume alcohol.
7.The said AB not use a drug of dependence within the meaning of the Drugs Poisons and Controlled Substances Act 1981 without lawful authorization under that Act.
8.The said AB submit to random urine screens as requested by Department of Human Services workers.
9.The said AB not associate with JL, DK, CM, BB, CW, KG, or MD.
10.The said AB not contact witnesses for the prosecution save for the informants in his matters.
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