Re An Application for Bail by TB
[2016] VSC 51
•11 JULY 2016 (revised 18 July 2016)
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0075
IN THE MATTER of the Bail Act 1977 (Vic)
- and -
IN THE MATTER of an Application for Bail by TB (a pseudonym)
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 23, 24 JUNE, 11 JULY 2016 |
DATE OF JUDGMENT: | 11 JULY 2016 (revised 18 July 2016) |
CASE MAY BE CITED AS: | Re An Application for Bail by TB |
MEDIUM NEUTRAL CITATION: | [2016] VSC 51 |
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BAIL – Show cause – Child applicant in care of the Department of Health and Human Services on an interim accommodation order – Whether unacceptable risk – Consideration of factors which must be taken into account in determination of bail application by a child – Whether imposition of conditions sufficient to ameliorate risk – Bail Act 1977 (Vic), ss 3B, 4(1), 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Sleeth | Victoria Legal Aid |
| For the Respondent | Mr P Ferdinands (23, 24 June 2016); | Victoria Police |
| Mr P Murphy (11 July 2016) | ||
| For the Department of Health and Human Services | Ms A Mendes Da Costa |
HIS HONOUR:
The applicant, TB, who turned 14 in March this year, applies for bail. He has no criminal history and, since a magistrate refused bail on 14 June 2016, he has spent one month in custody at the Parkville Youth Justice Precinct in relation to charges arising from alleged offending on 12 June 2016. The applicant is under the care and protection of the Department of Health and Human Services (DHHS).
On 15 April 2016, when caught in the act of an alleged graffiti incident, the applicant was charged with criminal damage. He was released on police bail.
Only 3 days later, on 18 April 2016, it is alleged that he further offended. The applicant was arrested on 10 May 2016 and charged with assault in company, assault by kicking, recklessly causing injury, unlawful assault and criminal damage arising from a number of incidents on 18 April 2016. The applicant was again released on police bail to appear at the Melbourne Children's Court on 30 June 2016, but this time it was a condition of bail that he not attend within the Melbourne central business district bounded by Spring, Flinders, Spencer and La Trobe Streets.
On 12 June 2016 the applicant, in breach of this bail condition, was in the Melbourne CBD area around St Paul’s Cathedral. He was in the company of five other young persons, and they ventured into Birrarung Marr to rob people. That day a number of people were assaulted and robbed in separate incidents by this group. I do not need to set out fully in these reasons the details of those incidents, but I observe that they were very serious assaults and, in particular, one victim suffered quite serious head injuries including a broken cheekbone. The applicant is alleged to have been actively involved in these assaults, including kicking the victims whilst they were on the ground. At least a part of this incident was captured on CCTV footage which is said to show the applicant’s participation in the assaults.
Further, the offenders having observed that other persons witnessing these assaults were using mobile phones to call the police also assaulted those other persons in a violent manner and robbed them of their handbags and mobile phones.
The applicant was arrested by police and charged with robbery, intentionally causing serious injury in circumstances of gross violence, recklessly causing injury in circumstances of gross violence, intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury and recklessly causing injury. He was remanded into custody to appear at the Melbourne Children’s Court on 14 June 2016. On that date the applicant appeared before a magistrate seeking bail which was refused.
On 23 June 2016, he applied to this court for bail. I adjourned the application to 24 June 2016 to allow a Youth Justice Case Manager, Ms Diane Karevski to prepare a report. However, the application was still characterised by a number of uncertainties regarding the proposed arrangements for the applicant’s accommodation and supervision were he to be released on bail and the plan in place for his welfare. I further adjourned the application to 11 July 2016 to provide the applicant a further opportunity to submit additional material in support of his application.
The applicant is, prima facie, entitled to bail pursuant to s 4(1) of the Bail Act. Notwithstanding this, s 4(2)(d) of the Act requires that bail shall be refused if the court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would commit an offence whilst on bail or would endanger the safety or welfare of members of the public. Further, as a result of being charged with indictable offences that are alleged to have occurred while the applicant was at large awaiting trial for another indictable offence, s 4(4)(a) of the Bail Act requires the applicant to show cause why his detention in custody is not justified.
As is evident from the judgment of the Court of Appeal in Robinson v R,[1] there is currently a debate as to whether an application for bail involves a one or a two stage process when the applicant is required to show cause as to why his continued detention in custody is not justified. The Bail Act does not specify what considerations may be relevant to showing cause. There is no dispute that cause may be shown either by one particular factor or, as is more usual, by a combination of factors. Here there is considerable overlap between the factors which are said to show cause and the issue of unacceptable risk, so it is not necessary for me to determine whether this application involves a single question or a two stage approach.
[1][2015] VSCA 161.
The application for bail was opposed. The informant submitted that:
(a) The applicant’s most recent offending constituted a significant escalation in violence when compared to his alleged offending on 10 May 2016;
(b) The applicant is alleged to have played a central part in the physically violent offending, which was in company and involved kicking the victims who were on the ground; and
(c) Between 11 March 2016 and 3 June 2016, the Victoria Police LEAP database indicated that the DHHS had reported the Applicant missing from their premises 14 times.
On the basis that there is insufficient ongoing supervision of the applicant and given the consequences of the serious acts of violence he is alleged to have committed, the risk of further offending, and that such offending would endanger the safety of members of the community, is unacceptable.
As the applicant is a child I must have regard to s 3B of the Bail Act. This section provides that in determining whether to admit a child to bail, the court must take into account, in addition to any other requirements of the Act, particular individual considerations as follows:
(a) the need to consider all other options before remanding the child in custody;
(b) the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers;
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance;
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(e) the need to minimise the stigma to the child resulting from being remanded in custody;
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
Earlier this year, the applicant was removed from the family home where he had previously resided with his mother, grandmother and siblings. The reasons were not explained but he may have been considered uncontrollable by his family and have been engaging in inappropriate behaviour. Initially, he was in foster care for about a month. The DHHS applied for an interim accommodation order to out of home care and since late March 2016, prior to his arrest and transfer to the Parkville Youth Justice Precinct, the applicant had been a resident at a Westcare youth residential unit located in Amaranth Avenue, Altona North. He was enrolled at the Warringal Special School but it does not appear that he had been attending.
One of the conditions of the interim accommodation order imposed by the Melbourne Children's Court is that DHHS arrange for a cognitive assessment of the applicant, there being historical evidence in the context of his schooling that the applicant suffers an intellectual impairment. I will return to this issue but presently note that such an assessment is yet to occur. The DHHS must report to the Children's Court in connection with the interim accommodation order about the arrangements being made and the outcome of the assessment. The applicant’s Child Protection application is to return to the Melbourne Children's Court on 28 July 2016.
It would seem from the evidence that the DHHS had not, at the early stage of his placement within their care when the alleged offending occurred, actively engaged in dealing with his circumstances.
In the first instance, the magistrate refused bail as she did not put too much weight on the psychological assessment because the report was more than three years old, although she accepted as established that the applicant has some form of learning delay and an intellectual disability. It appears that the magistrate was persuaded that the applicant posed an unacceptable risk of further offending and putting the community at risk more by the fact of insufficient supervision at the residential unit and an unwillingness on the part of the applicant to comply with bail conditions. I do not find fault with that conclusion and circumstances have since changed.
Mr Nathanael Cipriano informed me that he had been appointed as the applicant’s child protection worker the previous afternoon. While Mr Cipriano was able to give some general evidence about the circumstances, he was clearly constrained by his very recent introduction to the matter and his limited opportunity to evaluate the prior circumstances. However, he was prepared to concede that the case management of the applicant to date had been lacking coordination, and had been subject to turnover in case workers without the oversight of a permanent worker.
Looking ahead, Mr Cipriano intends to make a plan for the applicant that would see him re‑engage with his family, re‑engage with school, attend a youth group and engage in social sporting and art activities that appear to be the applicant’s special interests. Mr Cipriano stated that DHHS would consider the option of placing the applicant in a Therapeutic Residential Unit that would involve a higher level of supervision and intervention in his activities than the previous placement Such a placement includes intensive support for managing disabilities and high risk behaviours, as well as educational support. Mr Cipriano acknowledged that such placements were very limited in number and all he could say as at 23 June was that if a referral were made, it might be an opportunity that could arise in the future.
The arrangement available on 23 June 2016 was that, were the applicant released on bail, he could return to the residential unit where he had previously resided in Altona North and where he had a particular beneficial relationship with the unit manager, Mr Sean German. However, although there was evidence given about the arrangements that existed at that unit, when the matter returned on 11 July 2016 I was told a place had become available at a different unit, referred to as the Fox Street Residential Unit, also in St Albans.
The Fox Street residential manager, Ms Crystal Moore, explained the circumstances that exist at the Fox Street unit. It is a four bed unit with one bed available for the applicant. The other beds are occupied by a boy and two girls, aged between 15 and 17. Ms Moore described the supervisory processes at the Fox Street residential centre There is a constant roster with at least one staff member present and awake 24 hours a day to monitor and provide support to the residents. The staff at the unit will promptly notify both the informant and Mr Cipriano if there were to be any breach by the applicant of bail conditions that might be imposed by the court, and have done so for other residents. Ms Moore stated that that one of the girls presently residing in the unit is subject to very restrictive bail conditions in relation to a number of ongoing criminal matters, requiring staff to maintain daily contact with the police.
The unit is not a locked facility and it is possible for a resident to leave of their own volition. Ms Moore stated that there are monitoring systems, both human and electronic, in place to identify the movements of residents and if they were to leave the building it would be promptly noticed. In the evenings, being a time of particular concern for this applicant, there are hourly checks on the residents, and motion sensors in place and operating after bedtime detect if a resident is on the move out of bed for any reason during the night.
Ms Moore also explained that a weekly plan would be developed that would involve identifying a number of activities that may engage the applicant and occupy his time in a productive fashion. In particular there is a basketball program and an art program which may be of interest to him.
Further, Ms Moore indicated that apart from travel by vehicle, the only effective way out of the unit’s vicinity in St Albans is by train and that the unit staff have a good relationship with the protective service officers at the St Albans train station, who have provided assistance in the past to prevent residents from absconding. There are a number of other supports that could be engaged firstly to bring residents home in the evenings so that they do not miss a curfew or are left stranded awaiting public transport and, secondly, mobile units to go out and seek the applicant were he to abscond or fail to return in compliance with a curfew.
I am satisfied that the level of supervision at the Fox Street unit as it was explained by Ms Moore is more extensive than that which applied at the Altona North unit when bail was being considered by the magistrate. I accept that the applicant is less likely to abscond, as has been his past pattern through a combination of better supervision and a program of activities to relieve boredom.
It is also clear that DHHS has increased its engagement with the applicant and that some resources are now being allocated to assist him, which will also contribute to ameliorating the risk of him absconding from the unit. Discussions between Ms Karevski, the Youth Justice case manager, Mr Cipriano, and Ms Moore during the adjournment of the application have resulted in a more detailed plan to be implemented for monitoring and supporting the applicant if he were to be admitted to bail as a resident of the Fox Street unit.
Two further reports were prepared during the adjournment. The applicant tendered a Youth Justice Assessment Report prepared by a Mr Drysdale, which reported that arrangements will be made for the applicant to be enrolled at St Joseph's Flexible Learning Centre in North Melbourne. Ms Karevski has spoken to the Centre’s principal, and set up a meeting with the applicant and the principal on 12 July 2016, if the applicant were released on bail, for the purposes of an interview and enrolment. I was informed that the applicant will be able to attend at the Centre.
Mr Drysdale reported that the applicant’s intake of alcohol is significant, of a binge nature, involving the consumption of substantial quantities of ‘goon’ (a slang term for cask wine), and that his usual reason for drinking alcohol daily was boredom. Significantly, the applicant acknowledged to Mr Drysdale that he believed his use of alcohol was problematic and that he understood that there was a relationship between alcohol and his offending behaviour.
On the basis of Mr Drysdale’s assessment, a Youth Support and Advocacy Service worker has been allocated for the applicant, who will arrange an appointment to commence specifically dealing with drug and alcohol assessment and counselling. The applicant has expressed a willingness to engage in addressing his alcohol intake.
The applicant reported to Mr Drysdale that his incarceration has caused him to reflect significantly upon his attitude towards bail, his attitude towards observing bail conditions and the need for him to make lifestyle changes if he is released from custody. Ms Karevski reported identifying a similar attitude in the applicant although she expressed concerns about the applicant's capacity to successfully comply with any future bail due to his history of breaches whilst on bail and the reduced level of comprehension due to his intellectual disability. The motivation that comes from spending time in custody is not to be underestimated, for that is its rehabilitative purpose.
Returning to the applicant’s personal circumstances, while initially some equivocation about the applicant's relationship with his family was evident, it now seems that both the applicant and his family desire restored levels of contact. The applicant’s mother and siblings were in court to support him on 11 July 2016. Greater contact will be largely dependent upon future changes in the applicant's behaviour, but there would appear to be some prospect for Mr Cipriano to achieve family reunification, which he suggested was one of his goals. This is relevant to the particular considerations that must be considered for child applicants for bail, as noted earlier.
The applicant’s behaviour while in custody appears to have been positive and there have not been behavioural management issues. This is consistent with the reports from the residential unit in Altona North that he was compliant and accommodating, all of which reinforces the picture that the applicant’s descent into criminal behaviour is significantly related to his consumption of alcohol, lack of support and family contact, and boredom.
There is a further factor. The applicant has been psychologically assessed twice, first when he was approximately five and a half years old, and secondly in April 2013, at 11 years of age, on the referral of the school that he was attending. It would seem that the assessment on each occasion has been broadly consistent. In the more recent assessment, the psychologist concluded that his full scale intelligence quotient of 52 falls in the extremely low range of ability located below the 0.1 percentile, meaning that he performed as well as or better than less than .1 per cent of children of his age.
The applicant has significantly delayed adaptive behaviour and a mild to moderate deficit. He is likely to continue to demonstrate significant difficulties into the future and the psychologist concluded that the applicant presented with a moderate intellectual disability and was eligible to apply for continued placement in the Department of Education’s program for students with disabilities under the intellectual disability category. As earlier noted, a cognitive psychological assessment is currently being arranged as a condition of the interim accommodation order.
In considering this application, and in balancing the considerations that I must take into account, I have had particular regard to each of the matters set out in section 3B of the Bail Act that must be considered when determining an application for bail by a child applicant, and in particular, to sub‑paragraphs (a), (f) and (g).
The applicant submitted that he had shown cause that his continued detention in custody was not justified. Of great significance are his young age, his intellectual disability and the fact that he has no criminal history.
The prosecution appears to me to have a reasonably strong case in respect of the alleged offences that are of a very serious nature. That said, the applicant’s counsel suggested that the sentence he would ultimately be likely to receive on the charges in question, having regard to the principles that apply under the Children, Youth and Families Act2005 (Vic) in relation to the sentencing of children on criminal offences, is unlikely to be a custodial sentence.
The applicant submitted that there will probably be some delay in resolving the criminal matters because an assessment is likely to be required about whether the applicant will be fit to plead to the charges. I take this into account but on the state of the evidence relevant to such considerations, it cannot be highly persuasive.
In one sense the applicant may be teetering on the brink of institutionalisation. Habitual criminals who repeatedly create significant difficulties for the community on the occasions when they are released from custody are created out of institutionalised men who invariably commence incarceration as a teenager. I accept that as a minor with an intellectual disability the applicant is in a position of greater vulnerability to being preyed upon by more seasoned criminals within a custodial setting. Further, his offending to date has been performed in company with others, although it is unclear to what extent he was a leader or a follower in those activities.
I accept that the DHHS demonstrated a sharpened focus on the applicant’s welfare at the final hearing of this application, with evidence put before the court regarding the appointment of a worker, plans to build the necessary relationship with him including to address some of the underlying issues that may enable the applicant to become a useful, law‑abiding member of the community. It can also be said that the failings of the systems in place at the accommodation in North Altona on earlier occasions occurred in the context where the Department was largely absent from the applicant's life, a point that was apparently made by Mr German on the application for bail before the magistrate.
I emphasise again that given the applicant's recent and considerable history of street violence, his clear intellectual deficit, his propensity to binge seriously and uncontrollably on alcohol, his record of absconding from school and from prior accommodation services - with numerous occasions of absconding noted by the informant in her evidence - and his resulting inability to observe bail conditions, I consider that the prosecution has clearly established a prima facie case that the applicant is an unacceptable risk of committing further offences and of endangering the welfare of members of the community.
Unacceptable risk cannot be sufficiently ameliorated unless there is adequate and sufficient support and supervision in place for the applicant if released on bail. The critical question on this application is whether the applicant has demonstrated that there will be support structures in place that are sufficiently substantial to address and mitigate those risks.
Commonly that risk is ameliorated by imposing strict bail conditions. As I have noted, the applicant has already established a record of poor compliance with bail conditions, although that record involves a period of only a few months. I accept that there are explanations for this poor record, notably that he needs support and guidance in dealing with his problems and that such support has been lacking throughout the period of a couple of months when his offending occurred. I have already referred to the changes being implemented that I consider capable of significantly improving the applicant’s prospects of changing his behaviour as he must.
The particular risks that arise in this case would require the imposition of the following conditions:
(a) The applicant shall attend the Children’s Court of Victoria at Melbourne when next required to do so, being 26 July 2016, and he shall not depart without the leave of the Court, and as often as leave is given, return at the time appointed by the Court on granting leave and surrender himself again.
(b) The applicant shall reside at the Fox Street Residential Unit at St Albans in Victoria, and shall not change his place of residence without the leave of the Department of Health and Human Services or by order of the Children’s Court.
(c) The applicant shall obey the lawful instructions of his DHHS case worker (currently Mr Cipriano) and the Westcare Unit manager at the Fox Street Residential Unit (currently Ms Moore) or their nominees.
(d) The applicant shall remain within the property at the Fox Street Residential Unit at St Albans in Victoria, and shall not leave that property between 7pm and 7am every day other than with the permission of the Informant, unless in the company of Ms Moore or Mr Cipriano or their nominees.
(e) The applicant shall attend the St Joseph’s Flexible Learning Centre in North Melbourne during ordinary school hours and shall not absent himself from that school except by leave of Mr Cipriano or his nominee.
(f) The applicant shall participate as directed in the program to be conducted by Youth Justice Program and shall comply with the lawful directions of the Youth Justice Manager or his/her nominee.
(g) The applicant shall abstain totally from the consumption of alcohol and recreational drugs and shall not attend at any licensed premises or where alcohol is sold.
(h) The applicant shall not attend at or in the vicinity of the Melbourne Central Business District, defined as the area between Exhibition Street (including the Exhibition Street extension to the Swan Street bridge), Victoria Street, Spencer Street and the Yarra River, including specifically St Pauls Cathedral and Birrarung Mar, until further order.
(i) The applicant shall not contact directly or indirectly any witness for the Prosecution except the informant or her nominee.
(j) The applicant shall not contact or associate with those named as his alleged co-offenders in the criminal matters which led to his arrest on 12 June 2016 .
The informant suggested that the condition that the applicant abstain from consumption of alcohol and recreational drugs should also include an obligation to submit to reasonable random breath testing, but I am not persuaded that that particular condition would meet the requirements of s 3B(1)(g).
I also do not consider that it is appropriate to require the applicant to report daily to the Officer‑in‑Charge of the police station at Altona, having regard to the alternative arrangements that will be put in place, although I expect a specific exchange of contact details between the informant, Mr Cipriano and Ms Moore.
In all of the circumstances I have, with some genuine reservations, concluded that if the applicant is prepared to accept and abide by each of the conditions that I have proposed, his continued detention in custody would not not justified and that the very real risk of his re-offending and of his re-offending creating a real risk of endangering the safety and welfare of members of the public would be acceptably ameliorated.
I am satisfied that there is a significant change in the circumstances from the first hearing of this application for bail to the final hearing by virtue of the increased application of resources and forward planning for the applicant's welfare by his guardian, the DHHS. Provided the care plan for his residence at the Fox Street Unit is properly put into place and becomes effective, I consider that this is capable of effectively ameliorating the risks of admitting him on bail and, as such, pursuant to subsection 3B(1)(a) of the Bail Act, is an option that must be tried before continuing to remand the applicant in custody.
I observe that this case plan will fail if the applicant does not comply with it or if the DHHS does not allocate adequate and sufficient resources to support the applicant who, in my view, stands on the precipice of an institutionalised life, and if that outcome eventuated the prospects of ongoing substantial harm being inflicted on society for a long time to come are increased.
Accordingly, the order of the court is that the applicant will be admitted to bail on his own undertaking on the conditions set out in paragraph 42 of these reasons.
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