Re Ak
[2020] VSC 625
•25 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0194
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by AK |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2020 |
DATE OF RULING: | 25 August 2020 |
CASE MAY BE CITED AS: | Re AK |
MEDIUM NEUTRAL CITATION: | [2020] VSC 625 |
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CRIMINAL LAW — Application for bail — Applicant charged with Schedule 2 offences — Whether compelling reason established — Whether unacceptable risk — Young offender — Release supported by Youth Justice — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4C, 4D, 4E – Children, Youth and Families Act 2005 (Vic) ss 346(6), 361.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Thomas | Victoria Legal Aid |
| For the Respondent | Mr G Carr | Victoria Police |
HIS HONOUR:
This is an application for bail by AK (‘the applicant’), who is 17 years old.
On 5 August 2020, he was arrested and remanded in relation to 12 charges brought by First Constable Matthew Anderson. Those charges are as follows:
·theft of a motor vehicle;
·aggravated intentional exposure of a police officer to risk by driving a stolen vehicle;
·dangerous or negligent driving while pursued by police;
·reckless conduct endangering life;
·reckless driving;
·failing to stop motor vehicle on request;
·failing to stop vehicle after an accident;
·failing to render assistance after an accident;
·careless driving;
·driving at a dangerous speed;
·unlicensed driving; and
·failing to comply with a direction of the Chief Health Officer.
He was refused bail on these charges at the Dandenong Children’s Court the following day.
On 7 August 2020, the applicant was further charged with intentionally causing serious injury and intentionally causing injury, arising from the same incident.
On 14 August 2020, the applicant was refused bail a second time at the Dandenong Children’s Court. As on the previous occasion, the presiding magistrate was satisfied as to the existence of a compelling reason but refused bail on the basis of unacceptable risk. The matter is next listed for mention at the Dandenong Children’s Court this Friday, 28 August 2020.
By notice dated 18 August 2020, the applicant now seeks a grant of bail from this Court in relation to all 14 charges faced by him.
As the applicant is charged with Schedule 2 offences within the meaning of the Bail Act 1977 (the ‘Act’),[1] the parties accept that bail must be refused unless the applicant can satisfy this Court that a compelling reason exists that justifies the grant of bail.[2]
[1]Namely, intentionally causing serious injury, aggravated intentional exposure of a police officer to risk by driving and dangerous or negligent driving while pursued by police. See Bail Act 1977 (Vic) sch 2 items 6, 22(eb) and 22(h) (‘Bail Act’).
[2]Bail Act ss 4AA(3), 4C(1A), 4C(2), 4D.
The alleged offending
At approximately 4 pm on 5 August 2020, police were notified of a group of people sitting in a parked black Toyota Aurion (‘Aurion’) in Cranbourne, in a suspected breach of the directions of the Chief Health Officer. The Aurion had been stolen the previous day in the course of an aggravated burglary at a residence in Pakenham, involving the use of a knife.
Later that morning, a witness notified police of a man throwing items into the wetlands in Narre Warren South from the stolen Aurion. A number of items from the vehicle were recovered, including a packet of knives from which two knives had been removed. The incident was also captured on nearby CCTV.
At approximately 4:25 pm, the Aurion, alleged to be driven by the applicant, travelled to the South Gippsland Highway and dropped off co-accused, [redacted]. It then continued on to Cedarwood Crescent in Burwood and was followed by the Victoria Police Air Wing.
While stopped on Cedarwood Crescent, two police officers, Acting Sergeant Joshua Milligan and First Constable Shaun Andrews, approached the stolen vehicle from behind in a marked police car. It is alleged that the applicant, upon noticing the police car, immediately drove away but conducted a U-turn, and began driving back towards the two police officers. By this time, the officers had exited their vehicle in order to deploy a tyre deflation device.
The applicant allegedly stopped the stolen vehicle approximately 20 metres away from the officers and was directed by them to turn off the engine and exit the vehicle. Instead, he allegedly drove the vehicle as if to pass Acting Sergeant Milligan, but then suddenly and deliberately turned, striking him and throwing him over the bonnet of the car. Acting Sergeant Milligan landed on his back on a fence dividing the driveways of 27 and 29 Cedarwood Crescent, destroying the fence and causing immediate pain to his back, knees and arms. The applicant did not stop and continued to drive off the road, narrowly missing First Constable Andrews, before leaving the scene.
As a result of the incident, Acting Sergeant Milligan sustained fractures to his lower vertebrae, pain to his left forearm and right knee and multiple abrasions. He is required to wear a back brace for six weeks and has been placed on light duties. Further medical reports regarding the extent of his injuries are anticipated.
After the collision, the applicant continued to drive dangerously through Berwick, avoiding other police officers stationed nearby and driving through a service station at speed. He is alleged to have travelled along the Princess Highway in excess of 150 km/h in a 80 km/h speed zone, changing lanes and ignoring red traffic control signals.
At approximately 5 pm, the applicant parked the stolen vehicle in Lara Court, Hallam, where he ran towards Arcadia Avenue and jumped the rear fences of several properties before gaining access to the rear yard of his home. He entered the property via a back door and was observed by police to close the blinds in his home.
The entire incident was captured on the body-worn camera of Acting Sergeant Milligan and on footage from the Victoria Police Air Wing.
The applicant was arrested after a brief stand-off, during which police forced entry to the residence. He was identified as the perpetrator of the earlier offending by attending police and was observed to have changed his clothes since entering the house. He was conveyed to the Dandenong Police Station where he made a ‘no comment’ record of interview.
Police conducted a search of the stolen vehicle and located a knife matching the set that had been thrown from the vehicle in Narre Warren South the previous day. Subsequent forensic analysis of the vehicle located the applicant’s fingerprints on the interior and exterior of the driver’s side door.
The co-accused, [redacted], was issued with a caution on 5 August 2020 in relation to the offence of theft of a motor vehicle. She has no criminal history.
The applicant
The applicant was 16 years old at the time of the alleged offending and turned 17 while on remand. Prior to his remand, he resided at [redacted] with his parents and three of his eight siblings.
He experienced a tumultuous childhood, having fled South Sudan with his mother and siblings when he was four months old. They resided in Egypt for 15 months awaiting processing of their claims for refuge, during which time the family lost contact with the applicant’s father. They arrived in Australia when the applicant was aged three. The applicant’s mother was not able to make contact with her husband until 2008, and he was not approved to migrate to Australia to reunite with his family until 2015.
The applicant attended St John’s Regional College in Dandenong to year 10 and recently completed a Certificate II in Building and Construction at Chisholm TAFE. Prior to his remand, he was unemployed but had been actively seeking a bricklaying apprenticeship.
The applicant self-reports using cannabis and Xanax recreationally.
He has no formal criminal history, with his previous contacts with the criminal justice system being limited to cautions or discharge of charges upon successful completion of a Children’s Court diversion program. He has no other outstanding matters.
The applicable legislation
As the applicant is a child, the Act applies to the present application, except insofar as it is inconsistent with the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’).[3]
[3]Children, Youth and Families Act 2005 (Vic) s 346(6).
In making a determination under the Act in relation to a child, the Court is required to take into account the matters set out in s 3B(1) of the Act and may consider any recommendation or information contained in a report provided by a bail support service pursuant to s 3B(2) of the Act.
As previously stated, in the present application, the Court must refuse bail unless satisfied by the applicant that a compelling reason exists that justifies the grant of bail,[4] and, if so satisfied, must refuse bail all the same if satisfied that the applicant poses an unacceptable risk as described s 4E of the Act.[5]
[4]Bail Act ss 4AA(3), 4C(1A) and 4C(2).
[5]Ibid ss 4D(1)(b) and 4E.
In considering whether a compelling reason exists, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[6]
[6]Ibid ss 4C(3).
The meaning of ‘compelling reason’ was considered by the Court of Appeal in Rodgers v The Queen.[7] Drawing on a number of decisions delivered by this Court, the Court of Appeal summarised the principles to be applied in considering the show compelling reason test as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is ‘difficult to resist’.[8]
[7][2019] VSCA 214 (‘Rodgers’).
[8]Rodgers [43] (citations omitted).
If the Court is satisfied as to the existence of a compelling reason, it must then apply the ‘unacceptable risk test’. That is, pursuant to ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail –
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[9]
[9]Bail Act s 1B(2).
The applicant’s contentions
The applicant, through his counsel, Mr Thomas, relied upon the following matters in combination to demonstrate the existence of a compelling reason justifying the grant of bail.
The applicant’s youth, Youth Justice support and s 3B factors
Counsel on behalf of the applicant relied primarily on the applicant’s young age. As previously stated, he was 16 years of age at the time these offences are alleged to have occurred. Referring to previous decisions of this Court, counsel for the applicant highlighted the importance of the factors set out in s 3B of the Act in determining an application for bail.
In particular, the applicant relied on the availability of Youth Justice supervised bail as an alternative to the applicant’s continued remand, together with supervision and support from his immediate family, which in turn, it was argued, would assist in strengthening and preserving his familial relationships and enable him to continue living in the family home. It was submitted that this is particularly significant given that COVID-19 restrictions made him unable to accept personal visits from his family while on remand.
At the hearing of the application, his Youth Justice case manager, Jessica Paegert, gave evidence that, following a previous unfavourable assessment, the applicant was recently assessed as suitable to participate in the Youth Justice supervised bail program. Ms Paegert stated the program would incorporate weekly supervision appointments, vocational and employment support with a Youth Justice case worker, and a referral to the Youth Support and Advocacy Service for drug and alcohol intervention.
In addition to her evidence in this court, Ms Paegert prepared a report, dated 12 August 2020. In it, she advised that the applicant appeared genuine in his willingness to engage with supports and demonstrated insight into how his conduct has impacted others. I can only hope that that is actually true.
With respect to continuation of his education, training or employment, it was submitted that a grant of bail would allow the applicant to pursue a bricklaying apprenticeship, including through his recent connection with the Bricklaying Foundation. Ms Paegert, in her evidence, indicated that a bricklayer, who had recently taken on an apprentice in that trade, was now considering taking on another apprentice and that the applicant might fulfil the requirements for that position, which would be obviously to his benefit.
It was further put, in the written material, that his release on bail would alleviate the risk that he may become ‘enamoured’ with the structured environment of youth detention and limit his exposure to negative peer influences.
Notwithstanding a concession that the alleged offending is extremely serious and the case against him ‘decidedly strong’, the applicant’s counsel submitted that, as a young person, the applicant’s rehabilitation and redirection from the criminal justice system must be given priority.
Ties to the jurisdiction and stable accommodation
Mr Thomas also relied on the support from the applicant’s family, including his older siblings who live outside the family home. It was proposed that the applicant would reside initially with his older sister, [redacted], in [redacted] for the purposes of self-isolation and would later be joined by their mother and father.
I am told, though it has not come to the giving of an actual undertaking, that the applicant's mother is prepared to give an undertaking to notify the informant of any breaches of any conditions of bail, and she will be available to do that in the foreseeable future.
COVID-19 and onerous conditions of custody
It was further submitted that this is the applicant’s first time in youth justice detention and that his time on remand are more onerous as a result of COVID-19. Counsel advised that, as a result of quarantine protocols at Parkville Youth Justice Centre as well as receiving a positive test for COVID-19, the applicant had spent the majority of his remand period in isolation. As such, it was put, that he had not been able to leave his cell and was only able to make phone calls if they have been pre-arranged by staff.
The written materials filed in support of the applicant set out the requirements of quarantine at the Parkville Youth Justice Centre and submitted that the lack of personal visits from family, the limited capacity of Parkville College to provide education or programs during COVID-19, and the likelihood of stringent and regular lockdowns has been extremely difficult and will likely have a lasting impact on him.
Lack of criminal history
As previously stated, the applicant has no formal criminal history, but as the informant has pointed out, from July 2019 onwards, he was involved in a number of matters, which ultimately involved the completion of a diversion program.
The conduct involved possession of drugs of dependence, possession of controlled weapons, violent disorder, affray, recklessly causing injury, intentionally causing injury, assault by kicking, affray, violent disorder and also some driving offences, public order or street offences involving the use of obscene language, being drunk in a public place, and things of that kind. Those matters do the applicant no credit whatever and do serve to emphasise the seriousness of the offending, with which I am concerned in this application.
Delay and likely sentence
Although Mr Thomas made clear in the course of his submissions that there is no significant reliance on delay in this application as it is extremely likely that the matter will proceed as a plea, counsel still put that there is a ‘real risk’ that his time on remand may exceed any sentence he may ultimately receive. It was submitted that the applicant would receive the benefit of s 361 of the CYF Act, meaning that a sentence of detention is not inevitable given the hierarchy of sentencing options to be followed by the Children’s Court.
Unacceptable risk
In relation to unacceptable risk, the applicant relied on the aforementioned s 3B factors and submitted that he was not on bail or summons at the time of the alleged offending and has no history of failing to appear. Further, as stated, he has not previously been afforded the opportunity to participate in the Youth Justice supervised bail program.
Mr Thomas submitted that the applicant’s successful completion of diversion over the course of two months indicates the applicant can comply with court orders.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has failed to establish a compelling reason. However, Mr Carr, on behalf of the respondent, acknowledged the effect of the applicant’s youth and the mandatory considerations within s 3B of the Act, and that contention was, reasonably, faintly argued.
In addition to his submissions, Mr Carr also relied on a report written by the informant, dated 20 August 2020.
In response to the applicant’s submissions regarding the strength of the case and nature of the offending, the informant stated that the prosecution case was supported by body-worn camera footage of the incident involving Acting Sergeant Milligan, Victoria Police Air Wing footage, the applicant’s VicRoads licence extract, CCTV footage and photographs, fingerprint evidence, medical reports related to Acting Sergeant Milligan’s injuries, and nine police witness statements. It is noted that Acting Sergeant Milligan is strongly opposed to the grant of bail to the applicant.
I do not understand the applicant’s counsel to be contending that this is a weak prosecution case, it clearly isn’t.
The real issue, it was put, was that there is an unacceptable risk that, if granted bail, the applicant would endanger the safety or welfare of any person, commit an offence while on bail or fail to surrender into custody in accordance with conditions of bail. It was submitted that the risk cannot be made acceptable by the imposition of bail conditions.
Mr Carr submitted that, while the character of his family is not in issue, the respondent has serious doubts as to his family’s ability to control or influence the applicant’s behaviour, particularly given the fact that he was residing with them at the time these alleged offences occurred.
In the respondent’s written submissions, it was also argued that the proposed Youth Justice supervised bail program was lacking in sufficient detail to give the Court confidence that the interventions proposed would appropriate address the applicant’s risk factors. Mr Carr contended that, without faulting Youth Justice, reports of noncompliance can take days to reach Victoria Police, which does not assist in mitigating the risk he would pose if granted bail.
Endangering the safety and welfare of others
Noting the seriousness of the alleged offending, counsel for the respondent submitted that the applicant has demonstrated a risk of endangering police officers, other road users, and the community in general. Accordingly, it was submitted, given his prior conduct and the gravity of the alleged offending, the consequences of the applicant reoffending ‘may well be catastrophic’.
The respondent also submitted through counsel that Victoria Police has intelligence linking the applicant to a gang, namely through social media posts alleged to have been made by the applicant. The informant’s report stated that police have serious concerns regarding the sharp escalation in the seriousness of this gang’s offending in recent times, describing them as ‘high-harm, high-impact’ offences. It was submitted that the applicant’s association with this group adds to the risk he poses to the safety and welfare of the public.
Committing an offence while on bail
Counsel on behalf of the respondent submitted that the applicant has previously been charged with committing an indictable offence whilst on bail and was only discharged of that offence on 31 July 2020. That, obviously, has not led to an improvement in his behaviour as that less than a week before the alleged offending in the present matter.
Mr Carr submitted that the alleged offending represents an escalation in the applicant’s conduct and that he has shown little insight into his offending behaviour. As I earlier described, the informant reported that the applicant has been arrested by police on eight occasions in the last 15 months.
Analysis
It almost goes without saying that this offending, if proven, is extremely serious. It involved the use of a vehicle as a weapon against a police officer who was doing no more than his duty. The police officer who was injured, his colleague and other members of Victoria Police are, understandably, extremely concerned at the prospect of a 17-year-old boy conducting himself in such a lawless way.
That said, it needs to be recalled that I am not sentencing the applicant for these offences, that will be the task of the Children's Court. What I am determining is whether, until he is dealt with by the Children's Court, he should be released on bail. The seriousness of the allegations — and the allegations are very serious — are but one factor to be considered in this application, as the Act makes clear. The Court must also have regard to the other matters in ss 3AAA and 3B of the Act.
I do not propose to set out the personal circumstances of the applicant again, but I have taken them into consideration, including the support of his family. I have also taken into account the fact that he is a child, which is considered by the Act to be a ‘special vulnerability’[10] and, as described above, s 3B of the Act sets out additional factors to which the Court must have regard.
[10]Bail Act s 3AAA(1)(h).
The applicant has no formal criminal history, though there have significant contacts with the police. There is no suggestion that he has previously failed to comply with conditions of earlier grants of bail.
The applicant has the support of Youth Justice in the form of a supervised bail program. From Ms Paegert’s evidence, Youth Justice has a number of measures that can be employed to address any noncompliance by the applicant regarding any conditions of bail.
Taking those matter into account, I am satisfied that compelling reasons have been established to justify the grant of bail.
Turning next to the question of ‘unacceptable risk’, I have understood and share some of the concerns raised by the respondent.
In my view, there is some merit to the submission regarding the possible limitations of his family, without impugning their character, to control the applicant and his behavior, including continued association with gang members. That would mean that, in any grant of bail, the Court would need to remain involved and monitor his performance judicially, in addition to number other conditions.
In all the circumstances, while I am satisfied there is some risk of releasing the applicant on bail, I am not satisfied to the extent required that the risk could not be mitigation through the imposition of strict conditions.
Conclusion
I therefore proposed that the be admitted to bail on his own undertaking with the following conditions:
1.The applicant is to reside at [redacted], in the State of Victoria (‘place of residence’) and not to change his place of residence without first giving seven days’ notice to the informant or their nominee;
2.The applicant is not to be absent from his place of residence between the hours of 8 pm and 5 am each day (the ‘curfew hours’);
3.The applicant is to present himself at the front door of his place of residence during the curfew hours upon the reasonable request of a member of Victoria Police;
4.The applicant is not to drive a motor vehicle at any time and of any description;
5.The applicant is to comply with all lawful directions of the Youth Justice worker or their nominee;
6.The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant;
7.The applicant is not to contact or associate with, either directly or indirectly, the co-accused, [redacted], or knowingly associate with any person the applicant believes is associated with or a member of the ‘New Generation Shooters’;
8.The applicant is not to leave the state of Victoria;
9.The applicant is to surrender any passport or travel document in his possession within 24 hours of release and is not to apply for any others.
10.The applicant is not to attend any international points of departure;
11.The applicant is to appear at the Dandenong Children’s Court on 28 August 2020; and
12.The applicant is to appear at the Supreme Court of Victoria at 9:30am on 1 September 2020.
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