Re AM
[2020] VSC 569
•4 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0054
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by AM |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 June 2020 |
DATE OF JUDGMENT: | 4 June 2020 |
DATE OF REASONS | 9 September 2020 |
CASE MAY BE CITED AS: | Re AM |
MEDIUM NEUTRAL CITATION: | [2020] VSC 569 |
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CRIMINAL LAW – Bail – 18 year old applicant - Charge of murder (common law and statutory) arising from planned robbery with gang connection – Applicant on bail and subject to probation at time for earlier violent offending – Poor bail history – Non-compliance with conditions of probation order – Unfavourable report by Youth Justice but bail support still on offer – Numerous violent incidents since applicant in custody - Questionable strength of prosecution case – Family support available – Delay – Case fast-tracked into Supreme Court but 18 month delay still likely – Onerous conditions in custody – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3B, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh | Victoria Legal Aid |
| For the Respondent | Mr R Gibson QC | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail on charges he faces of common law murder, statutory murder, armed robbery, intentionally causing serious injury, and intentionally causing serious injury in circumstances of gross violence.
It was common ground between the parties that the Court was required to refuse bail unless satisfied that exceptional circumstances existed that would justify the grant of bail. This was because the applicant was accused of committing a Schedule 1 offence within the meaning of the Bail Act 1977, namely, murder. In addition, the exceptional circumstances test would have applied because the applicant was accused of Schedule 2 offences while on bail for a Schedule 2 offence.
Having heard the application, I indicated that I was not satisfied of the existence of exceptional circumstances. In addition, I indicated that even had I been, I would have been satisfied that there was an unacceptable risk that if released on bail, the applicant would endanger the safety or welfare of the public, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice. I therefore refused the application for bail.
I indicated at the time that I would publish detailed reasons for my decision at a later time. These are those reasons.
Procedural history
The applicant is charged with offences arising out of the stabbing death of Maaka Hakiwai and serious injury caused to his brother, Nathaniel Hakiwai, on 28 September 2019. He was 17 years old at the time of the alleged offences and 18 years old by the time of the application. He was arrested and remanded in custody in relation to the first three charges on 13 October 2019 and charged with the remaining charges on 16 March 2020.
On 12 February 2020 at a committal mention in the Children’s Court, leave was granted to the applicant to cross-examine seven witnesses at a committal hearing, originally listed for 18 June 2020. The matter was subsequently committed to this Court from the Children’s Court under the fast-track model with the consent of the applicant.
At the time of the application before me the matter was next listed for a four-day s 198B preliminary examination hearing commencing 15 June 2020. It was also listed for a confidential case conference on 19 June 2020.
There was no previous application for bail. Pursuant to s 13(2) of the Act, only the Supreme Court or a court committing a person for trial may grant bail to a person accused of murder.
Other outstanding matters
On 27 August 2019, Informant Tipas charged the applicant with robbery, theft (2 charges), committing an indictable offence while on bail (2 charges) and unlawful assault, alleged to have occurred on 1 and 11 June 2019. The alleged offending in that matter involved the applicant, in company with an unidentified co-offender, approaching the victim and stealing an Apple iPhone and charger. He is alleged to have approached the victim on a later date and punched him to the side of the face for ‘snitching’ to police. He was granted bail on the same day.
Also on 27 August 2019, Informant Williams charged the applicant on summons with affray and committing an indictable offence while on bail, alleged to have occurred on 2 July 2019.
At the time of the application, the above two matters were next listed for further mention on 9 July 2020 in the Children’s Court.
On 17 April 2020, Informant Hadden charged the applicant on summons with unlawful assault, alleged to have occurred on 6 January 2020 while the applicant was on remand. This matter was next listed for mention on 31 July 2020 in the Children’s Court.
Alleged offending
On 28 September 2019 at approximately 2:15pm, the applicant was picked up in a black Toyota RAV4 from a friend’s house in the Kings Park area. Already in the vehicle were the two co-accused Joshua Horton (‘Horton’) and Chol Kur (‘Kur’), and three girls aged between 15 and 17 years, one of whom was driving the vehicle.
At 2:30pm, brothers Maaka (‘the deceased’) and Nathaniel Hakiwai (‘Hakiwai’) arrived at a bus stop at the intersection of Main Road West and Oakwood Road, Kings Park, on their way to the local gymnasium. The deceased was 17 years old and Hakiwai was 18 years old. Hakiwai was wearing a ‘Philadelphia 76ers’ peaked cap.
While they were waiting for the bus, footage from a local CCTV camera captured the RAV4 completing two full circles of a nearby roundabout before driving towards the bus stop. It is the prosecution case that, at this time, the brothers were selected by the applicant as targets for the alleged robbery. According to one of the girls in the vehicle, the applicant requested the driver to stop the car so he could ‘drill’ the brothers – meaning to rob them. It is said that two of the girls in the vehicle tried to discourage him from doing so, while Kur encouraged him. Horton was silent.
The RAV4 pulled over just past the bus stop, at which point Kur and the applicant allegedly exited from the rear of the vehicle and spoke to the brothers. During this exchange, Kur asked for Hakiwai’s cap. When he refused, Kur tried to grab the cap but Hakiwai held onto it, causing Kur to punch him in the face. At the same time, the applicant allegedly struck the deceased and a fight ensued.
During the fight, Kur was knocked to the ground, at which time it is alleged that Horton got out of the rear of the RAV4 armed with a knife described by Hakiwai as being around 8 inches in length, with a 4 inch blade. Horton approached the deceased, who was struggling with Kur, and placed one hand on his back. Using his other hand, Horton allegedly thrust the knife into the deceased’s abdomen, piercing his heart. The deceased yelled out and Hakiwai yelled for help. Soon after, the deceased collapsed to the ground and lost consciousness.
It is alleged that Horton then approached Hakiwai and stabbed him in the left thigh. The applicant and Kur then ran towards the RAV4, with Kur taking the peaked cap from Hakiwai as he went by. Horton then stabbed Hakiwai a second time, again to his left thigh, before returning to the RAV4, which was driven away. A passing motorist who witnessed the fight followed the RAV4 for a short distance and noted the vehicle’s registration number.
Hakiwai tried to assist the unconscious deceased and managed to call their father to inform him that they had been stabbed at the bus stop, before he too lost consciousness. Passing motorists stopped to assist, and police and paramedics arrived to continue resuscitation attempts on the deceased.
The deceased was transported to Royal Melbourne Hospital but never regained consciousness. He was declared deceased at 3:52pm the same day. A post-mortem examination identified that the cause of death was blood loss from the stab wound to the heart.
Hakiwai was transported to The Alfred Hospital for emergency surgery on the wounds to his leg. He remained in hospital for 13 days and suffers ongoing muscle tenderness and permanent scarring to his left thigh.
The applicant was arrested on 13 October 2019 and declined to comment in his interview. The two co-accused also declined to comment in their interviews with police.
Seven eyewitnesses, including Hakiwai and the three girls present in the car during the alleged offending, have made statements in relation to this matter and will be cross-examined at the s 198B preliminary hearing.
Personal background
As stated, the applicant recently turned 18 years old but was 17 at the time of the alleged offending. He was born in Egypt and is of a Sudanese background. He has lived with his family in Australia for most of his life since 2005, most recently residing at the family home in Hillside with his parents and five younger sisters. He proposed to return to reside in the family home if granted bail.
In 2019 prior to his arrest in this matter, the applicant ceased schooling part way through Year 11 and instead enrolled in a building and construction course at TAFE. Notwithstanding a brief suspension in programs due to COVID-19, the applicant had been participating in educational programs through Parkville College while in custody.
Criminal history
The applicant’s criminal record discloses one matter in the youth jurisdiction, with findings of guilt for robbery (3 charges), theft (2 charges), committing an indictable offence while on bail (3 charges), resisting an emergency worker on duty, handling stolen goods and unlawful assault. For this offending, he was placed on a probation order for a period of 12 months from 13 August 2019. He was subject to that order at the time of the alleged offending the subject of the application.
At the time of the current offending, the applicant was subject to a Family Violence Intervention Order (‘FVIO’) made on 28 August 2019 in the Children’s Court, naming the protected persons as his father and his siblings. This order was due to expire on 27 August 2020 and prohibited the applicant from committing family violence against the protected persons or intentionally damaging any of their property.
Conduct of the applicant in custody
The Youth Justice Bail Service Report (‘Youth Justice Report’) exhibited to the applicant’s first affidavit in support set out some material relating to the behaviour of the applicant since being in custody. The report indicated that the applicant had been involved in 22 incidents during that period, of which 17 involved assaults and five were for dangerous or disruptive behaviour. It had apparently been considered by an Assessment and Coordination Officer within the Youth Justice Precinct that the applicant appeared to struggle with anger management issues and self-regulation, and tended to be influenced by peers. The respondent, in his evidence before me, indicated that he was aware of only one of these incident which had resulted in charges against the applicant, which matters were still outstanding at the time of the application. By the time of the application, the applicant had been moved to Malmsbury, where there had been no incidents, as far as the respondent was aware.
The law
Section 1B of the Bail Act 1977 (‘the Act’) sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act makes plain the fact that there is generally to be a presumption in favour of the granting of bail. In a number of situations set out in the Act, however, that presumption is displaced by the requirement that the applicant establish the existence of either exceptional circumstances or a compelling reason that would justify a grant of bail.
Section 4AA(2) dictates that the exceptional circumstances test applied in this case. Pursuant to s 4A(1A) of the Act, the Court was required to refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’.
The applicant bore the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, the Court was required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of exceptional circumstances, the Court was required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act required the Court to refuse bail if satisfied that there was an unacceptable risk that, if released on bail, the applicant would:
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.
The respondent bore the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court was required to take into account the surrounding circumstances pursuant to s 3AAA. The Court was also required to consider whether there were any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
In this case, because the applicant was a child, s 3B(1) has application.[1] This provision provides that in such a case, the Court must take into account a number of considerations, including the need to consider all other options before remanding the child in custody, the need to strengthen and preserve the relationship between the child and his family, the desirability of allowing the living arrangements of the child to continue without interruption, the desirability of allowing the education of the child to continue without interruption, and the likely sentence should the child be found guilty. Section 3B(2) provides that in making a determination under the Act, the Court may take into account any recommendation contained in a report provided by a bail support service.
[1]‘Child’ has the same meaning under the Act as it has in the Children, Youth and Families Act 2005, that is, ‘in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court’. The bail application was conducted on both sides on the footing that the applicant should be considered to be a child for the purposes of the application.
Exceptional circumstances
The meaning of exceptional circumstances has been considered in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[2] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[3]
[2][2004] VSC 17.
[3]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
In the context of an application for a bail by a child, Forrest J in Re JO[4] noted:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[5]
[4][2018] VSC 438.
[5]Ibid [14].
This passage has been cited with approval in a number of the decisions of this Court.
The applicant’s submissions
Mr Marsh, for the applicant, relied upon a combination of matters as set out in the affidavit in support and his oral submissions, in proof of exceptional circumstances, and to resist the respondent’s contention of an unacceptable risk. The matters were as follows:
a) Nature and seriousness of the alleged offending. Whilst it was accepted that the charges are serious, it was submitted that these were not serious examples of the charged offences because the applicant is not alleged to have been the principal offender. Furthermore, although he initiated the robbery, he was not fighting with either of the stabbed individuals at the time of the stabbing of those individuals.
b) Strength of the prosecution case. Mr Marsh submitted that the prosecution case against the applicant is weak, in part because there is no evidence that the applicant was aware that Horton, as the principal offender, was in possession of a knife or that he encouraged, assisted or directed Horton before, during or after the incident. In addition, Mr Marsh submitted that the events had the appearance of two separate but overlapping crimes. He submitted that there is a strong argument that the charge of statutory murder will fail, and, indeed, that the case on both variants of murder should be characterised as being weak.
c) Criminal history. It was submitted that whilst the applicant’s criminal history is relevant, it is quite limited, and constituted by only one prior appearance. In respect of that matter, the applicant complied satisfactorily with the order. Furthermore, there were no prior convictions for failing to answer bail.
d) Suitable accommodation and family support. It was proposed that the applicant would return to the family home to reside with his parents and five siblings if granted bail. Three of his siblings are in primary school, while the other two are in high school. At the time of the application, the applicant’s siblings were participating in online schooling due to the current global health crisis. The applicant’s parents are both employed by Woolworths Meat Company and arrange their shifts so that one of them is always home to care for and supervise their children. The applicant has the support of both of his parents, with his mother in particular being anxious about his welfare in custody.
e) The applicant is a young person. Mr Marsh emphasised the need for the Court to have regard to the considerations raised in s 3B of the Act.
f) Availability of Youth Justice Bail Support. Mr Marsh acknowledged that the applicant had been assessed as unsuitable for Youth Justice Bail Support, but submitted that the support of Youth Justice would still be available and forthcoming, which was a significant matter.
g) Intention to undertake vocational training. The applicant intends to complete a pre-apprenticeship at Victoria University in plumbing. Tom Pearce of Parkville College is assisting him with enrolling in this course. In a letter filed on 2 June 2020, Mr Pearce expressed support for the applicant and confirmed that he is committed to securing a full-time job that will allow him to contribute to the community and support his family.
h) Delay. The applicant submitted there will be a delay in the finalisation of this matter as the likely trial date remains unknown, given the ongoing suspension of jury trials in this Court. The applicant had acted assertively in consenting to his matter being fast-tracked into the Supreme Court, but the reality was that there is still great uncertainty about the likely hearing date of the trial, exacerbated by the fact that the trial would involve three accused, making it very difficult to envisage the trial proceeding in the foreseeable future if social distancing rules apply. The applicant has been in custody since his arrest on 13 October 2019 and it is realistic to consider that he may spend something of the order of 18 months on remand before the trial proceeds. For an 18 year old person in his first period of custody and at a critical stage in his life, that would be a very significant delay.
i) Onerous conditions in custody related to COVID-19. The applicant is worried about the risk of COVID-19 infection in custody. He has encountered difficulties with practising social distancing, noting that he is regularly in contact with Youth Justice staff and other prisoners, as well as using shared gym facilities. It was also put that, prior to COVID-19, the applicant’s parents generally visited him each week but have been unable to do so since the indefinite suspension of personal visits to Youth Justice precincts on 26 March 2020.
j) Compliance with earlier grants of bail. It was submitted that the applicant has no prior findings of guilt for failing to answer bail, although it was acknowledged that he does have prior findings of guilt for committing an indictable offence whilst on bail, and pending charges for the same.
k) First time in custody. Mr Marsh made much of the fact that this period represented the applicant’s first real time in custody, and would bring a ‘significant aversive effect’.[6] He now understands what custody entails and is also aware that from now on, he would be dealt with in the adult jurisdiction.
[6]Transcript 24.
In respect of the question of unacceptable risk, Mr Marsh acknowledged that whilst the risks posed by the applicant may be viewed as being ‘unusually cogent in this case’,[7] these could be managed and controlled by a suite of stringent conditions of bail.
[7]Transcript 40.
The respondent’s submissions
Mr Gibson QC for the respondent, in opposing bail at both steps of the process, relied upon the affidavit in response, incorporating the report of the respondent, Detective Acting Sergeant Smyth, and oral submissions.
Mr Gibson acknowledged the need for the Court to have regard to the considerations in s 3B of the Act, but pointed out that the applicant is not a young child, and in any event, s 3B does not mean that in the case of a child, the legislature had waived the requirement for exceptional circumstances to be established. In addition, he noted that one of the specific matters canvassed in s 3B is the matter of a bail decision maker taking into account any recommendation or information contained in a report provided by a bail support service. On that score, the unfavourable report from Youth Justice was very telling.
These were serious examples of serious crimes, it was submitted, and the applicant was the instigator of the foundational crime of robbery. Two innocent young members of the community were targeted. The applicant performed an active role in the attacks upon them.
In respect of the strength of the case, Mr Gibson submitted it was considerable. Horton had been seated between the other two offenders when the plan was hatched to rob the victims. When the applicant and Kur ran into difficulties in their planned crime, Horton was quick to provide back-up to them. The fact that Horton did not say anything in the car did not mean that he was not involved in the overall plan to rob the victims. Mr Gibson took issue with Mr Marsh’s description of the events as being two separate and overlapping crimes. Mr Gibson did not concede the case of common law murder was a weak one, although he did not put it forward as being a particularly strong one. As for the case of statutory murder, he submitted the case was strong. In any event, Mr Gibson pointed out that the strength of the prosecution case was but one factor for the Court to take into account, and there were other powerful matters pointing against a grant of bail.
One of these was the very relevant criminal history of the applicant. Although this was constituted by only one court disposition, that concerned a consolidation of a number of serious charges including several in-company robbery offences spanning an offending period of twelve months. A number of these offences were committed while the applicant was on various grants of bail, and in breach of conduct conditions of bail.
In terms of the history of grants of bail where the applicant was concerned, this was troubling. He had a proven history of failing to comply with bail conditions and committing offences whilst on bail, as was detailed in the report of the respondent.
As for the next matter for consideration in s 3AAA of the Act, at the time of the alleged offending, the applicant was on the probation order for crimes of violence from the court disposition on 13 August 2019, a matter of six weeks before the current alleged offending. He was also on bail for the matters of violence where Tipas was the informant. That bail was granted on 27 August 2019, only one month before the current offending. There were other matters of violence also pending by way of summons.
In addition, an FVIO was taken out for the protection of the father and siblings of the applicant on 28 August 2019, only a month before the current offending. This order was in place at the time of the current alleged offending, and was still in place at the time of the application. The events surrounding this order being made were quite serious, involving an attack by the applicant upon his father with the use of a hammer. His mother was present, and police attended and intervened, eventually restraining the applicant with the use of capsicum spray. The fact of the father of the applicant seeing the need to take out this FVIO was relied upon by the respondent as indicative of the lack of control of the parents of the applicant over his conduct.
The gang connection of the applicant was another matter highlighted by Mr Gibson. He is an active member of a gang whose members seem intent on selecting soft targets upon whom to commit violent robberies. The applicant has developed an established pattern of involvement in such offending, which is exactly the type of offending at the heart of the crimes alleged here.
In terms of the family support available to the applicant, this was no different from that which was available in the past, throughout the offending of the applicant to date. His parents have not been able to control him to date, and there is no reason to believe this had changed. Detective Acting Sergeant Smyth expressed serious concerns on this score in his evidence.[8]
[8]Transcript 8.
On the matter of delay, Mr Gibson submitted that even were the applicant to be on remand for a period of 18 months or so, in a case of murder, that length of time on remand would not be unusual, and would make little contribution to the assertion of exceptional circumstances.
Furthermore, were the applicant to be found guilty of any of the most serious charges, a lengthy term of imprisonment would be inevitable.
Concerning the question of the implications of the COVID-19 pandemic, the respondent submitted that the health crisis is just one part of the surrounding circumstances to consider.[9] It was submitted that there was no material suggesting that the applicant is at any particular disadvantage or vulnerability due to the pandemic.
[9]Re Tong [2020] VSC 141.
Mr Gibson submitted that the applicant had fallen a long way short of establishing the existence of exceptional circumstances.
Even if the Court was satisfied of the existence of exceptional circumstances, the overall circumstances, as summed up in the Youth Justice Report, would dictate that the applicant would constitute a very high risk of not only breaching bail, but committing further offences on bail and interfering with witnesses. The report and evidence of the respondent pointed to the considerable fear harboured by a number of witnesses to the events in question, and steps already taken by the applicant to contact and intimidate witnesses, even from inside the Youth Justice Precinct. The report asserted that the applicant is a member of a gang which has been responsible for a large number of robberies, affrays, and ‘swarming’ offences in retail outlets. Detective Acting Sergeant Smyth stated, ‘The group instils fear through others in the community by the use of coercion and threats if people speak with police’.[10]
[10]Report of Detective Acting Sergeant Smyth, page 3.
Mr Gibson, relying on what he submitted was the established pattern of the applicant’s behaviour, the inability of his family to control him, and the proven attempts already made by the applicant to intimidate witnesses, submitted that there would be a high likelihood that any bail imposed by the Court, no matter how strict the conditions were, would be breached.
Analysis
Using the non-exhaustive list of matters in s 3AAA as a guide to the process of considering the surrounding circumstances of this case, I commence with the issue of the nature and seriousness of the alleged offending. The applicant is charged with a murder which had, at its foundation, a planned, targeted attack upon vulnerable children by the applicant in company with others. The idea for the attack was the applicant’s, so it is alleged. Whilst I acknowledge that there is nothing to indicate that he planned violence with weapons as a necessary part of the attack, much less the infliction of death or really serious injury, it is hard to view the offending as being anything less than serious.
As for the strength of the case, there may well be challenges proving the guilt of the applicant of murder on either the common law or statutory basis. That remains to be seen. Mr Marsh described the case on murder as weak. Mr Gibson described the case as strong. The intricacies of the evidence and the directions of law which would bind a jury in the consideration of the case were beyond my scope as a judge considering a bail application well before a trial or even a committal hearing. I was content to act on the basis that the prosecution will certainly face challenges, that the case cannot be described as an unambiguously strong one, but that nor could it be considered to be hopelessly weak. The strength of the prosecution case is clearly an important matter amongst the matters making up the surrounding circumstances. It must be remembered, however, as submitted by Mr Gibson, that it is only one of many matters. In some cases, a hopelessly flawed prosecution case will be a central, if not a determinative consideration, in an application for bail. In many others, the true strength of the case is something beyond the power of a judge to decide at the early stage of a bail application. That was the situation with which the Court was faced in this case.
Turning next to a matter about which the Court could readily reach a clear conclusion, the criminal history of the applicant, whilst relatively confined, illustrates the poor behaviour of the applicant in recent times, showing his frequent offending with crimes of violence. The offending the subject of the one court disposition on 13 August 2019 occurred over a period of almost twelve months between 19 August 2018 and 7 August 2019, when the applicant was remanded in custody in respect of the third charge of robbery committed during that period. The robberies were committed in company, and of the same soft-target variety as the foundational crime now alleged against the applicant. Much of the offending of the applicant in that period occurred while he was on bail for other offending as reflected by the three charges of committing an indictable offence whilst on bail upon which sentence was passed. The charges of resisting arrest and assault arose from his attack upon his father with a hammer which was at the heart of the FVIO to which reference has been made.
The extent to which the applicant has complied with the conditions of earlier grants for bail is another of the matters set out in s 3AAA that was not encouraging so far as future compliance with bail is concerned. The applicant has a track history, as already noted, of repeatedly offending whilst on bail.
At the time of the offending currently alleged, not only had the applicant recently become subject to the probation order in respect of the above crimes of violence, but he was on bail and subject to summons for further groups of violent offending.
The Youth Justice Report before the Court contained a very unflattering depiction of the applicant’s short journey through the Youth Justice sphere, making it entirely understandable that the author assessed him as being unsuitable for Youth Justice Bail Service. Amongst the matters contributing to that decision were the need to consider the potential for community harm due to the serious charge upon which he was remanded, the assessed high likelihood of non-compliance with bail, the fact that the applicant had been placed on probation only six weeks before the alleged offending, the fact that he had no confirmed educational, employment or vocational training placement, his strong affiliation with negative peers and co-offenders, his established pattern and history of violent offending, his significant anger management issues and poor self-regulation, and his resistance to treatment interventions.
In the report it was noted:
In summary, Youth Justice has assessed that [AM] is at high risk for non-compliance with bail conditions, including engagement with recommended counselling services, and that the associated risk to community safety cannot be adequately mitigated by the Youth Justice Supervised Bail Service.[11]
[11]Report page 2.
All-in-all, the picture presented by the proven conduct of the applicant in the last two years is of an out-of-control young person who has habitually engaged in targeted and violent group offending, has continued to do so in spite of the strictures of grants of bail to which he has been subject, and has shown a lack of regard for the law, a lack of respect for bail, and a lack of respect for Court orders.
There are indications that the poor conduct of the applicant in recent times outside custody has been mirrored by his conduct in custody.
In light of the assessment of Youth Justice set out above, the ongoing willingness of the organisation to provide bail support for the applicant was of little reassurance to the Court as to his prospects of compliance.
I took into account the matters set out in s 3B of the Act, and the sentiments expressed by Forrest J in Re JO.[12] Although these principles have application, it is worth noting that the applicant is by no means a young child. He is now 18 years old. I also note that whilst the authorities indicate that children have a special status where bail is concerned, that does not mean that the guiding principles the importance of which are recognised in s 1B of the Act, one of them being to maximise the safety of the community to the greatest extent possible, do not apply to this application.
[12]Re JO (n 4).
The period of 18 months or so which the applicant may spend on remand before his trial was an important matter which I took into account. However, it did not strike me as being an unusually long period of time for a person to spend on remand before a murder trial. Of course, it is a period which would be substantially exceeded by the likely sentence should the applicant be found guilty.
I took into account, also, the circumstances under which this time on remand was currently being spent, and would be spent for some time due to the COVID-19 arrangements. The ways in which COVID-19 has interfered with the normal services and freedoms available for those in custody are well known and significant, as is the additional anxiety felt by those in the shoes of the applicant. I factored in these COVID-19 considerations as an aspect of the surrounding circumstances to consider.
Having carefully considered all of the surrounding circumstances of this case, I was of the view that the applicant had fallen well short of discharging the onus resting on him of proving the existence of exceptional circumstances. For that reason alone, it would have been necessary for bail to be refused.
For completeness, as I indicated at the time of announcing my decision, I noted that even had I been of a different view about the first step in the process of bail, I would have been satisfied that the applicant posed an unacceptable risk, if released on bail, of endangering the safety of the public, committing an offence while on bail, or interfering with a witness or otherwise obstructing the course of justice. Mr Gibson submitted that the established pattern of the applicant’s behaviour, the inability of his family to control him, and the attempts already made by the applicant to intimidate witnesses from his position in custody should lead the Court to the view that there would be a high likelihood that any bail granted by the Court, no matter the stringency of its conditions, would be breached. I accepted that submission. As things stood at the time of the application, I was of the view that the risk posed by the applicant was unacceptable, and would not be able to be mitigated such as to be acceptable by any conditions the Court could imposed.
Conclusion
For the reasons stated above, the application for bail was refused.