Re Ak (No 2)
[2021] VSC 637
•22 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0364
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by AK |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF JUDGMENT: | 22 September 2021 |
CASE MAY BE CITED AS: | Re AK (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 637 |
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CRIMINAL LAW — Application for bail — Charge of murder — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Waters | Chester Metcalfe & Co |
| For the Respondent | Mr E Dober | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
AK has been charged with murder, affray and violent disorder arising out of the death Solomone Taufeulungaki outside the Deer Park Library on 16 June 2020. The facts of the case are set out in detail in my reasons for granting the applicant bail on those matters on 19 November 2020.[1] These reasons should be read in conjunction with those reasons.
[1]Re applications for bail by VN, AK and CN [2020] VSC 782.
On 29 June 2021 I revoked the applicant’s bail on those matters.
By application dated the 7 September 2021 the applicant makes an application for bail. The prosecution submitted that in accordance with the provisions of s18AA of the Bail Act 1977 (“the Act”) that the applicant would need to show new facts or circumstances because his original bail had been revoked. I told the parties at the hearing of the application that I regarded the provisions of s 18AH as being in wide enough terms to allow the applicant to make a fresh application. If I am wrong about that I am satisfied that the applicant has shown new circumstances at least by virtue of the fact that he is a child who has not previously been in custody other than for a few days and who has now been detained for almost three months.
The applicable legislation
The applicant has been charged with murder and is required to show exceptional circumstances which warrant his admission to bail.[2] I found that exceptional circumstances had been made out on the applicant’s earlier application and it has not been put that I should not find differently here. I would in any event add the time in custody referred to above to the reasons for finding the existence of exceptional circumstances.
[2]The Bail Act 1977 (‘the Act’) ss 4AA(1), 4A(1A) and 4A(2).
On the hearing of the application the parties accepted that the issue on the application was whether or not the respondent had shown that the applicant was an unacceptable risk that he would, if released on bail, either endanger the safety or welfare of any person or commit an offence while on bail.
Respondent’s submissions
The respondent’s submission was a straight forward one. It was submitted that the applicant’s performance on bail, which lead to the revocation of his bail, and his conduct since the revocation of bail, was such that without significant changes to his attitude and circumstances he was an unacceptable risk.
In her affidavit opposing the grant of bail the respondent’s solicitor summarises the matters as follows:
History of Applicant’s previous non-compliance with bail conditions and further alleged offending
[20] The affidavit of D/S/C Kallyn Gent dated 10 September 2021 and exhibited as Exhibit KMV1 to this affidavit details the alleged offending and breaches of the Applicant at paragraphs 10 to 82.
[21] In summary, the following is alleged against the Applicant:
(a)The applicant pleaded guilty to charges of theft and committing indictable offences whilst on bail in the Children’s Court at Melbourne for offences committed on 2 August 2020. He entered into a good behaviour bond;
(b)The Applicant was in the company of one of the co-accused to the murder charge, [IT], on 10 March 2021 when he was arrested by police. This incident involved four (4) breaches of bail conditions by the Applicant, namely, breach of curfew (Condition 3), breach of the alcohol and drug condition (Condition 5), breach of the non-contact condition (Condition 7) and breach of the condition to not be present in a group of five (5) or more (Condition 9);
(c)The Applicant pleaded guilty to charges of aggravated burglary, theft, committing an indictable offence whilst on bail in the Children’s Court at Melbourne for offences committed on 1 May 2021. A machete was located in his pants which was approximately 55cm in length upon search of him at the time. Along with committing further offences whilst on bail, this incident involved a breach of the curfew condition of his bail (Condition 3). This offending also breached the good behaviour bond that was in place at the time;
(d)The Applicant is alleged to have been in the company of a co-accused for the murder charge, [ST], on 17 May 2021 in breach of the non-association condition of bail;
(e)The Applicant was spoken to by police on 21 May 2021. He was in breach of 4 conditions of his bail on this occasion;
(f)The Applicant was not at home when police conducted a curfew check on 8 June 2021 in breach of the curfew condition of bail;
(g)The Applicant was alleged to have been involved in an incident in the company of a co-accused for the murder charge, [IT], and others on 11 June 2020. It is alleged that the applicant was in possession of a knife. A 17 year-old boy was seriously injured and the Applicant was initially charged with recklessly causing serious injury and other charges, however the charges have since been withdrawn. There is a photograph of the Applicant at the scene and the victim identified the Applicant as being there. His presence breached 3 conditions of his bail;
Conduct of Applicant whilst in custody
[22]The Applicant has been charged with Affray for an incident alleged to have occurred on 18 November 2020 whilst at the Parkville Youth Justice Precinct. Details of the alleged offending are contained in the affidavit of Kallyn Gent exhibited to this affidavit as Exhibit KMV1 at paragraphs 6 to 9;
[23]It is alleged that the Applicant has been involved in 2 incidents since he was remanded on 25 June 2021. Details of the alleged offending are contained in the affidavit of Kallyn Gent exhibited to this affidavit as Exhibit KMV1 at paragraphs 73 to 74;
The matters referred to above were alleged assaults on fellow detainees. The applicant has not been involved in any further incidents.
The respondent has further noted that there have been numerous examples of failing to comply with curfew, consuming alcohol, association with co-accused and not properly engaging in education.
Youth Justice Bail Support did regard his performance on bail as “generally positive”.[3]
[3]Youth Justice Bail Service Report of Natasha Rinaldi and Ross Layton, dated 16 September 2021, pg 3.
In my view the applicant’s behaviour on bail was quite unsatisfactory. The matters put by the respondent warrant serious consideration.
Respondent’s submissions
It was put on behalf of the applicant that he was still young. He was born in 2004, he is now 17 and was 16 at the time of the alleged offending. He is entitled to the operation of s 3B of the Act.
I received a report from Youth Justice Bail Service who have continued to support the applicant. I am satisfied that the program proposed for AK is more intensive.
There has been a major difficulty in the relationship between AK and his father (Mr SK and his children generally). Youth Justice are hopeful that the relationship can and will improve. AK has been in contact with his sisters and father by Zoom since he has been in custody. Mr SK does appear to have a more active relationship with AK and Youth Justice.
There are difficulties in AK recommencing school this year but Youth Justice are working on establishing a day program to keep AK occupied. That is a matter of concern and will require careful management.
If released on bail AK will have the afterhours support of Michael Smith-Bamigbola twice a week through the Youth Justice Community Support Service. AK has had a clinician appointed at Caraniche Youth Forensic Services to complete the Youth Offending Program. He has had some earlier engagement with that service.
While on remand AK has become involved with Family Functional Therapy through Practitioner Mr James Tupai. His family is prepared to be involved in weekly sessions directed towards strengthening family relationships and communication.
Although some of these services were previously available I am satisfied that there will be greater emphasis on aspects of the services which will be of assistance to AK.
He has been in custody for three months which is his longest period of detention. Youth Justice have reported that AK appears to have a better understanding of the need to not associate with his co-accused, both in his interest and their interest. Youth Justice will continue to monitor this aspect of AK’s behaviour.
Youth Justice have prepared a Plan and Timetable for AK.
I am satisfied that with the imposition of appropriate conditions AK would not constitute an un-acceptable risk if released on bail.
Ruling
AK will be admitted to bail on his own undertaking and on the following special conditions:
a) He attend the Supreme Court of Victoria at Melbourne on 11 October 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
b) He reside at [redacted] in Victoria, and not change that address without the leave of the Court.
c) He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent or nominee of Youth Justice.
d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
e) He own or possess one mobile phone and provide that phone number to the Informant and that, if requested to do so by a member of Victoria Police, he provide any password to enable the search of that phone.
f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
h) He engage with Youth Justice and obey any lawful directions of Youth Justice and undertake any treatment directed by them, attend any appointment arranged by them and engage in any school based program or training as arranged or directed by them.
i) He not contact, directly or indirectly, the co-accused, being VN, IT, DP, NT, CN, JR, AP, ST, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
j) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
k) He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.
l) He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
m) He not access or use any form of social media.
n) He not leave the State of Victoria.
o) He reappear before the Court for judicial monitoring to review his compliance with this order at 10:15am on 11 October 2021, and any further dates this Court appoints during the course of this order.