Re Am (No 2)
[2021] VSC 284
•26 April 2021
| 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: | 26 April 2021 |
DATE OF JUDGMENT: | 26 April 2021 |
DATE OF REASONS | 20 May 2021 |
CASE MAY BE CITED AS: | Re AM (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 284 |
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CRIMINAL LAW – Bail – 18 year old applicant - Charge of robbery arising from planned robbery with gang connection – Applicant has already pleaded guilty to offence – Plea hearing to take place on 21 June 2021 - Applicant previously faced charges including murder – Previous application for bail refused as exceptional circumstances not made out – Compelling reason test now applicable – Significant time already spent on remand – Family support and stable accommodation – Youth Justice support – Bail not opposed by prosecution – Compelling reason established – No unacceptable risk – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh | Victoria Legal Aid |
| For the Respondent | Mr R Gibson QC with Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail on a charge he faces of robbery, arising from an incident which took place in Kings Park on 28 September 2019.
It was common ground between the parties that the Court was required to refuse bail unless satisfied that a compelling reason existed that would justify the grant of bail. This was because the applicant was accused of committing an indictable offence while on bail for another indictable offence.[1]
[1]Bail Act 1977, Schedule 2, item 1(a).
Having heard the application, I indicated that I was satisfied of the existence of a compelling reason in justification of the grant of bail, and was not satisfied that there was an unacceptable risk of any of the eventualities contemplated by s 4E(1)(a) of the Bail Act 1977 (‘the Act’). I admitted the applicant to bail on stringent conditions.
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 was originally charged with murder and other offences arising out of the stabbing of Maaka Hakiwai (‘Maaka’) and his brother, Nathaniel Hakiwai (‘Nathaniel’), on 28 September 2019. The applicant was 17 years old at the time of the events and 18 years old by the time of this application. He had allegedly offended in company with Chol Kur (‘Kur’) and Joshua Horton (‘Horton’). The applicant was arrested and remanded in custody on 13 October 2019 and has been in custody ever since.
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.
A previous application for bail was heard by this Court on 4 June 2020. At that time the applicant was still facing a charge of murder, so the exceptional circumstances test applied. Bail was refused on that date, and reasons for the decision were published on 9 September 2020.[2]
[2]Re Am [2020] VSC 569.
A decision having been made that the applicant and Kur would have their murder trial heard by a judge alone, Horton stood trial before a jury for the murder of Maaka and for intentionally causing serious injury (‘ICSI) to Nathaniel. He was found guilty by the jury of manslaughter and ICSI.
Following this outcome, the prosecution ended up accepting a plea of guilty to robbery simpliciter against each of the applicant and Kur in satisfaction of the indictment they previously faced. The applicant pleaded guilty to the charge of robbery before Lasry J on 22 April 2021. The hearing of the plea was adjourned to 21 June 2021, when it will proceed with the pleas of Kur and Horton.
The applicant applied for bail for the period of eight weeks or so leading up to the plea hearing. In the circumstances, the prosecution did not oppose bail in the case of the applicant.
Outstanding matters at time of offending
On 27 August 2019, Informant Tipas charged the applicant with robbery, theft (two charges), committing an indictable offence while on bail (two 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 offending, the above two matters were pending 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 Horton and Kur, and three girls aged between 15 and 17 years, one of whom was driving the vehicle.
At 2:30pm, brothers Maaka, aged 17, and Nathaniel, aged 18, arrived at a bus stop at the intersection of Main Road West and Oakwood Road, Kings Park, on their way to the local gymnasium. Nathaniel 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 was the prosecution case as I understood it at the time of the application that there was a discussion between the applicant and Kur in the car about the prospect of robbing the Hakiwai brothers, which culminated in the brothers being 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 Nathaniel’s cap. When he refused, Kur tried to grab the cap but Nathaniel held onto it, causing Kur to punch him in the face. At the same time, the applicant allegedly struck Maaka 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. Horton approached Maaka, who was struggling with Kur, and stabbed him to the abdomen, piercing his heart. Soon after, Maaka collapsed to the ground and lost consciousness.
Horton then approached Nathaniel and stabbed him in the left thigh. The applicant and Kur then ran towards the RAV4, with Kur taking the peaked cap from Nathaniel as he went by. Having stabbed Nathaniel a second time, again to his left thigh, Horton also returned 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.
Maaka was transported to Royal Melbourne Hospital but never regained consciousness and died later that day.
Nathaniel was transported to The Alfred Hospital for emergency treatment for his injuries.
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.
Personal background
As stated, the applicant had turned 18 years old by the time of the application but was 17 at the time of the robbery to which he has pleaded guilty. He was born in Egypt and is of Sudanese background. He has lived with his family in Australia 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.
The law
Section 1B of 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 provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
The applicant’s submissions
Mr Marsh, for the applicant, relied upon a combination of matters as set out in the affidavit in support of a compelling reason. In light of the benign attitude of the respondent to the application, I did not call upon Mr Marsh to elaborate orally on these matters, and I will set them out only very briefly. The matters were as follows:
a) The applicant’s age. The applicant had been a person of special vulnerability, a child, at the time of being charged, and was still a very young person at the time of the application.
b) The limited role of the applicant in the overall offending.
c) The limited criminal history of the applicant. It was submitted that whilst the applicant’s criminal history was relevant, it was quite limited, and constituted by only one prior appearance. Furthermore, there were no prior convictions for failing to answer bail.
d) Stable accommodation and family support. It was proposed that the applicant would return to the family home to reside with his parents and siblings if granted bail.
e) Availability of Youth Justice Bail Support. In contrast with the position prevailing at the time of the first bail application, the applicant had now been assessed as suitable for Youth Justice Bail Support, and it was proposed that he would agree to comply with the Youth Justice Supervised Bail Program and abide by the lawful directions of Mr Samuel Woollard, Advanced Case Manager. Mr Woollard was present during the application and confirmed his willingness to provide supervision to the applicant.
f) Intention to undertake vocational training. If released, the applicant intended to enrol in a construction course through the Justice Education Training and Transition Service, and if possible, to obtain part-time work in traffic management.
g) Delay. Although it was only a short time until the plea hearing, the applicant had been in custody for a lengthy time before the application, in difficult conditions.
h) The attitude of the prosecution in not opposing the grant of bail.
Although the question of the risk posed by the applicant was not specifically canvassed in the written or oral material, Mr Marsh advanced a number of conditions which would minimise the risk.
The respondent’s submissions
Mr Gibson QC, who appeared with Ms Lenthall for the respondent, did not oppose bail in this case subject to strict conditions being imposed. In addition to the conditions advanced by the applicant, Mr Gibson sough a curfew condition, a condition requiring the applicant to present himself at the front door during curfew hours, a condition prohibiting drug use, and a condition prohibiting any association with members of the BDK Gang.[5]
[5]The applicant was alleged to be a member of this gang, whose modus operandi was said to be the selection of victims to target for assault and robbery.
Analysis
The position of the applicant had fundamentally changed between the time of the first application before me and the time of this application. First, the applicant now only faced a charge of robbery, which, whilst serious, was not of the same order as the charges he previously faced. A different bail onus applied to him. Importantly, and understandably, the respondent no longer opposed bail.
Taking into account all of the surrounding circumstances at the time of this application, including the young age of the applicant, the long period of time he had already spent on remand, the likely sentence when this charge is finalised, the continuing availability of a stable residence and ongoing family support, the modified position of Youth Justice who were now supportive of bail and undertook to provide ongoing supervision, and importantly, the attitude of the respondent in not opposing bail, I was satisfied that the applicant had discharged the onus resting on him of showing the existence of a compelling reason in justification of the grant of bail.
The respondent did not seek to argue that the risk posed by the applicant was an unacceptable one in the circumstances.
Conclusion
For the reasons I have stated, bail was granted to the applicant on conditions which were clearly spelt out to him.
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