Re Andrew
[2022] VSC 46
•14 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0021
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by KALEEDRE ANDREW |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2022 |
DATE OF RULING: | 14 February 2022 |
CASE MAY BE CITED AS: | Re Andrew |
MEDIUM NEUTRAL CITATION: | [2022] VSC 46 |
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CRIMINAL LAW – Bail application – Charges of aggravated home invasion and theft of motor vehicle – Applicant 18 years of age – Limited previous offending – First time in adult custody – Stable home environment and employment – Prospect of delay – Support of Youth Justice – Whether exceptional circumstances established – Whether unacceptable risk of offending or endangering the welfare and safety of members of the community – Bail granted with conditions – Bail Act 1977 ss 3AA, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sala | James Dowsley & Associates |
| For the Respondent | Mr J Shaw | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 24 December 2021, the applicant was arrested and charged with the theft of a motor vehicle (charge 1) and aggravated home invasion (charge 2). He unsuccessfully applied to the Magistrates’ Court for bail on 29 December, and now applies to this Court for bail.
Alleged offending
The two offences, with which the applicant is charged, are alleged to have been committed by him on 24 December 2021 in company with two co–offenders, MM (aged 17 years) and JV (aged 16 years). The applicant was born on 28 April 2003, and is 18 years of age.
The summary of circumstances, filed by the informant, describes six separate incidents, which occurred between 12:01 am and shortly after 6:20 pm on 24 December last. The co–offender JV is charged with offences in relation to all six incidents, and MM and the applicant are charged in respect of their alleged involvement in the fifth and sixth incidents.
The second incident concerned an aggravated home invasion in Tarneit at 1:35 am on 24 December. In the course of that offence, a silver Mazda 3 hatch motor vehicle, belonging to the owner of the premises, was stolen.
The third incident constituted an attempted theft of a motor vehicle also in Tarneit at 4:35 am on 24 December, and in the course of the commission of that offending, the silver Mazda vehicle was sighted on closed circuit television (CCTV).
The fifth incident constituted the aggravated home invasion which is the subject of charge 2. The sixth incident concerns the flight by the applicant and his co-offenders in the stolen Mazda vehicle after the home invasion.
The home invasion is alleged to have taken place at premises in Tarneit at approximately 6:00 am. At that time, CCTV footage captured the silver Mazda vehicle pulled up opposite the victim’s address. MM and JV exited the vehicle and approached the front door of the victim’s premises. MM then returned to the vehicle, opened the rear passenger door, and the applicant exited the vehicle and followed MM to the premises. The three offenders then walked around the front of the address looking for a point at which they could enter the house. In the course of doing so, the applicant climbed onto the roof of the house, while MM and JV attempted to find a way by which they could enter the front of it. While he was on the roof, the applicant hurt his leg. He climbed down from the roof and then walked back to the Mazda vehicle. As he was doing so, he limped in a pronounced manner. At one stage, he paused on the roadway and appeared to double over in pain. MM and JV then returned to the vehicle. MM obtained an umbrella from the vehicle, and he and JV returned to the premises.
MM and JV then forced entry into the premises through the front door frame. At that time, the owner of the premises, his wife, their six year old daughter and 18 month old daughter, and a cousin of the owner, were all asleep in the house.
After MM and JV broke into the premises, they entered the owner’s bedroom and woke the owner and his wife. MM demanded to be given the keys to their vehicle. When the owner asked him to clarify which car keys he was demanding, MM struck him on the head with the umbrella he was holding. MM also punched the owner in the mouth causing him to fall backwards. At that time, the two young children were in the room. MM and JV continued to assault the owner and they dragged him out the front of the house. The owner wrestled with MM and JV. His cousin came and assisted to push both offenders out of the front door of the house. He and the owner then held the front door shut. As they did so, MM called out ‘Get the gun’. JV and MM each picked up a chair and used them to break the front windows of the house. They then ran back to the Mazda vehicle and drove off.
At about the same time, Constables Alex Raffel and Alistair Wilkinson attended the premises in response to a call which the owner’s wife had made to emergency services. As they did so, they observed the stolen Mazda vehicle accelerating away. The police intercepted the vehicle. However, as Constable Wilkinson exited the police vehicle, the Mazda accelerated at a fast rate of speed. The police vehicle then gave pursuit. In the course of the pursuit, the Mazda, which was driven by MM, travelled at an excessive speed, at times diverging onto the incorrect side of the road. Finally, it collided with a street light when it attempted to turn right at an intersection. The police then arrested MM, JV and the applicant. When the applicant was arrested, he was wearing the same clothing which was worn by the person who was depicted on the CCTV footage as being the third participant in the home invasion, and who had climbed onto the roof of the premises.
After his arrest, the applicant and JV were transported to the Werribee police station, while MM was transported to hospital for observation.
Subsequently, on the same day, the applicant was interviewed by police. When questioned about his involvement in all of the six incidents, the applicant admitted he was in the stolen motor vehicle during the pursuit, knowing that it was probably stolen. He also made admissions as to being involved in one of the home invasions that day, but he did not indicate which incident he had been involved in. He said, ‘Not going to lie, I did walk into one, one house but [expletive] I didn’t beat up any kids’. He also admitted to being in the stolen vehicle during one of the incidents, saying ‘I was in the car in the back doing something, smoking a cone … They came back with heaps of shit’.
The applicant and the two co-accused are each on remand. The next court date is a committal mention hearing on 21 March at the Melbourne Magistrate’s Court.
Previous criminal history
On 7 February 2018, the applicant came before the Melbourne Children’s Court on one charge of theft from a shop and one charge of committing an indicatable offence while on bail. The charges were adjourned for a period of six months with the applicant being released on entering into a good behaviour bond.
The applicant’s personal circumstances
The applicant is one of seven children. At the time of the offence, he was residing in the family home in Hoppers Crossing.
The applicant attended Hoppers Crossing Secondary College until 2020. In June 2020, he commenced employment as a roof tiler with DPA Roofing Pty Ltd. In January 2021, he commenced the first year of his apprenticeship with that firm. The proprietor of the business, Mr Daniel Abela, has provided a testimonial in which he has described the applicant as a valuable member of his staff, who is reliable, has initiative and gets on well with his fellow employees. Mr Abela has indicated that he would be prepared to continue the applicant’s employment with DPA Roofing if he is released on bail, and that he would support any appointments which the applicant would be required to attend.
The application for bail is supported by the Youth Justice Bail Service, which has provided a report dated 24 January 2022. In the report, it is noted that a few years ago the applicant was involved in a motor vehicle accident in which it appears he sustained an injury to his head. The report suggested that he has suffered some ongoing sequelae as a result of that accident. In addition, the applicant reported that he used cannabis, alcohol and Xanax. He used cannabis approximately once each week, and he indicated that he would be willing to engage with a drug and alcohol service. The writer of the report, Ms Bridget McGeoch, noted that the applicant is naïve and appears to lack an understanding of the behavioural norms of an adult prison. Accordingly, he is considered to be vulnerable in an adult prison setting.
Youth Justice considers that the applicant is a suitable candidate for the Youth Justice Supervised Bail Program. As part of that program, the applicant would be required to attend at least weekly supervision appointments, and other appointments as would be determined by Youth Justice in an ongoing assessment of his risk and support needs. Youth Justice would focus on supporting the applicant to obtain identification and his driver’s licence, and to engage in drug and alcohol support. Supervision appointments would focus on his peer associations, his employment, investigations into his head injury, and compliance with bail conditions.
On the hearing of the application, Ms McGeoch gave evidence in which she confirmed the contents of, and recommendations contained in, the report. Ms McGeoch advised that the applicant is currently held in custody in Margoneet prison which does not have separate facilities for the custody of young offenders. She expressed particular concern that the applicant is quite naïve, and that he has no understanding of the norms of prison life, and in particular, the obligations which might bind the applicant if he were to receive particular favours from an older offender.
In addition, the applicant’s mother, Ms Eliza Andrew, gave evidence. She said that when she first learnt of the applicant’s offending on 26 December, her reaction was that of disbelief. She confirmed that the applicant belongs to a tight, close-knit family, and that the offending that is alleged is quite out of character for him. On the evening of 23 December, the applicant had set out to visit a cousin at 6:00 pm, but he did not return all night. As a consequence, Ms Andrew and her husband had made urgent telephone calls to hospitals and other agencies to try to ascertain his whereabouts. Ms Andrew, in giving the evidence, undertook that if the applicant were released on bail subject to a curfew condition, and if he breached that condition, she would immediately report the matter to the police.
The bail provisions
Under s 4AA of the Bail Act 1977, the applicant is required to establish the existence of exceptional circumstances that justify the grant of bail. Section 4A(1A) of the Act provides that bail must be refused unless the applicant discharges the burden of establishing such exceptional circumstances. Section 4A(3) provides that in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. Section 3AAA prescribes a non–exhaustive list of the surrounding circumstances which must be taken into account.
If the Court is satisfied that exceptional circumstances have been established, s 4D and s 4E of the Act require that the application for bail must be refused, if the Court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would: endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice; or fail to surrender into custody in accordance with the conditions of bail. If the applicant establishes the existence of the requisite exceptional circumstances, the prosecution bears the burden of satisfying the Court as to the existence of such an unacceptable risk.[1]
[1]Bail Act 1977 s 4D(2).
In the present case, the respondent contends that the applicant has failed to establish the requisite exceptional circumstances. Initially, in opposing bail, the respondent contended that if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence while on bail or endanger the safety or welfare of members of the community. However, in the course of submissions, counsel for the respondent accepted that if the applicant established exceptional circumstances, while there would be a risk that the applicant would reoffend or endanger the safety or welfare of others if released on bail, that risk would not be unacceptable if appropriate conditions, including that of a curfew, were imposed.
The meaning of the term ‘exceptional circumstances’ has been considered in a number of decisions of this Court. In essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.[2] One matter, that has been commonly regarded as important, in determining whether exceptional circumstances have been established, is the presence or absence of factors which might point to the applicant presenting as an unacceptable risk in any of the ways specified in s 4E(1) of the Bail Act.[3]
[2]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
[3]Re Gloury–Hyde [2018] VSC 393, [30] (Priest JA).
In determining whether exceptional circumstances have been demonstrated, it is recognised that the age of the applicant is a significant factor to be taken into account.[4] Similarly, in determining whether the risk (of reoffending or endangering the safety of others while on bail) is unacceptable, the age and attendant circumstances of the applicant are important considerations.[5]
[4]Cf Re JO [2018] VSC 438, [14] (T Forrest J); Re JF [2020] VSC 250, [32] (Tinney J); Re Johnson [2021] VSC 800, [63] (Lasry J).
[5]Mokbel v DPP [No 3] (2002) 133 A Crim R 141, 143 [10] (Kellam J); HA v The Queen [2021] VSCA 64, [6], [73] (Maxwell P and Kaye JA).
Submissions
Counsel for the applicant relied on the combination of a number of matters in support of the submission that the applicant had established exceptional circumstances justifying his release on bail. In particular, counsel relied on the applicant’s youth, and the fact that he has not previously been held in adult custody. The applicant has limited previous convictions. He was not subject to any undertaking of bail or sentencing order at the time of the alleged offending. The applicant has stable accommodation in the family home in which he would reside with his parents and siblings. He has employment available to him if released. Counsel in particular relied on the circumstance that the applicant has been found suitable for supervised bail by Youth Justice. Finally, counsel relied on the potential delay in finalisation of the charges against the applicant, particularly in light of the difficulties that have affected the court system as a result of the current COVID-19 pandemic. Counsel acknowledged that the matter is likely to resolve, and that the applicant would receive a custodial sentence. However, he submitted, in view of the applicant’s age and circumstances, it is likely that any such sentence would consist of a period in a youth detention centre and not in an adult prison.
Counsel for the applicant further submitted that if the applicant were released on bail, he would not constitute an unacceptable risk of offending, or of endangering the safety and welfare of members of the community. In that respect, counsel submitted that any such risk may be sufficiently allayed by appropriate bail conditions including that the applicant reside at the family home, that he be subject to a curfew condition, and that he comply with all lawful directions of Youth Justice.
In response, counsel for the respondent submitted that the collection of circumstances, relied on by the applicant, do not constitute exceptional circumstances justifying the release of the applicant on bail. In particular, counsel submitted that the circumstances that the applicant is young, that he comes from a stable background, and that this is the first time in which he has been in adult custody, do not in combination constitute exceptional circumstances. Counsel noted that pursuant to the provisions of the Sentencing Act 1991, it is mandatory to impose a custodial sentence in respect of the offence that is the subject of charge 2, aggravated home invasion. Accordingly, it is unlikely that if the applicant were convicted, any period of custody spent by him on remand would exceed the sentence that would be imposed on him.
As I have noted, the respondent originally submitted that if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence on bail, and that he would endanger the safety or welfare of other persons. However, in the course of submissions, counsel accepted that, if appropriate conditions, including that of curfew, were imposed, the risk of the applicant reoffending or endangering the safety or welfare of other persons while on bail, would not be unacceptable.
Analysis and conclusions
The first question is whether the applicant has established the existence of exceptional circumstances that would justify his release on bail.
The offence, that is the subject of charge 2 (aggravated home invasion), is, by its nature, serious, as is reflected by the maximum sentence of 25 years’ imprisonment that is prescribed for that offence. In the present case, the offending was attended by a number of serious acts of violence perpetrated by the applicant’s co–offenders, in the presence of two small children. It would seem that, pursuant to s 10AC of the Sentencing Act, the offence is subject to a mandatory custodial sentence. In any event, as counsel for the applicant realistically acknowledged, notwithstanding the applicant’s youth and his limited role in the offending, a custodial sentence would be well within the range of appropriate sentencing options if the applicant is convicted of the offence. Although the applicant was not on bail at the time of the offence, he has one previous matter involving the commission of an indictable offence while on bail.
Each of those considerations militate against a conclusion as to the existence of exceptional circumstances.
On the other hand, there are a number of other factors which support the existence of exceptional circumstances in the present case. The applicant’s youth is a matter of particular moment in the application. Although the applicant is, at law, an adult, nevertheless he is just 18 years of age. He has only one previous criminal matter. This is the first occasion on which he has been held in adult custody. By reason of his youth and inexperience, and for the reasons explained by Ms McGeoch in her report and in evidence, the applicant is particularly vulnerable in that setting.
Although the offending in the case was particularly serious, the applicant’s role in that offending was, it would seem, quite limited. After the Mazda vehicle parked opposite the premises in question, the two co–offenders alighted from it, but the applicant remained in it. He was then in the rear passenger seat of the vehicle. It was only after a short delay that he left the vehicle after being approached by the co–offender MM. The CCTV footage demonstrates that the applicant, for some reason, became particularly debilitated after climbing on the roof of the premises. He painfully found his way back to the Mazda vehicle, where he remained while the co–offenders broke and entered into the premises. In that way, the applicant’s role in the offending was, as I have said, quite limited.
The applicant belongs to a stable family, and he has the support of both his parents. At the time of the offending, he was gainfully employed and he was doing well in his apprenticeship. If he were released on bail, he would have available stable accommodation and employment. Each of those two circumstances did not prevent the applicant from engaging in the offending in question. Nevertheless, if the applicant were released on bail, the stability provided by his home and employment would be supplemented by appropriate conditions prescribed for his bail, and also by the supervision of the Youth Justice Bail Service.
In that connection, it is relevant that the Youth Justice Bail Service has assessed the applicant to be suitable for the Youth Justice supervised bail program. While that program is by no means a guarantee against the applicant reoffending, nevertheless it will provide some value in assisting to divert the applicant from associating with undesirable peers, and in addressing some underlying issues such as his use of cannabis.
Finally, it may fairly be anticipated that, if the applicant were not granted bail, there would be some delay in the final hearing and determination of the charges against him. While, at this early stage, it is not possible to predict the length of that delay, it is reasonable to anticipate that, due to the ongoing COVID–19 pandemic, there is a potential for a period of delay that would be longer than otherwise in the disposal of the case. As I have mentioned, it would appear that, by reason of s 10AC of the Sentencing Act, upon conviction on charge 2, the applicant would be subject to the mandatory custodial sentence. In those circumstances, it is unlikely that any period of delay, in the resolution of the charges against the applicant, would exceed the length of the sentence imposed on him. Nevertheless, as counsel for the applicant correctly pointed out, in the circumstances, it is quite possible that the applicant would be sentenced to a term in a youth detention centre rather than in an adult prison.
The determination of the question, whether exceptional circumstances exist in this case, is by no means straightforward. Nevertheless, taking into account the factors which I have discussed, and in particular applicant’s youth, his vulnerability in an adult prison, his limited previous convictions, his limited role in the offending, the delay, and the recommendation of the Youth Justice Bail Service, I am persuaded that the applicant has established the existence of exceptional circumstances which would justify the release of him on bail.
The question, then, is whether, if the applicant were released on bail, there would be an unacceptable risk that he would reoffend, or that he would endanger the welfare and safety of members of the community. Notwithstanding the concession made by counsel for the respondent, I consider that, in view of the seriousness of the offending, it is necessary that I address that issue.
It must be acknowledged that there is a risk that, if the applicant were released on bail, he might engage in further offending and might endanger the safety and welfare of members of the community. The applicant’s involvement in the offending in question, the seriousness of the offending, and his association with his co–offenders, are matters of particular concern. The fact, that the applicant was then residing in a stable family environment and had gainful employment available to him, were not sufficient to divert him.
On the other hand, there are three particular factors which should, to a reasonable extent, operate in combination to offset that risk.
First, if the applicant were released on bail, he would be subject to particular conditions, including a curfew condition, a condition that he engage in support services as directed by Youth Justice, and a condition that he not associate with the co–offenders. Secondly, and associated with that, the involvement of the Youth Justice Bail Service would add a layer of supervision during the period of bail. In particular, the supervised bail program, involving supervision appointments, and a focus on the applicant’s peer associations and substance use, would assist to divert and deter the applicant from offending and endangering the community. Thirdly, the applicant has now spent seven weeks in adult custody. It might be expected that he has learned a salutary lesson from his time in prison. While it is, to some extent, a matter of speculation whether that lesson will ultimately deter the applicant from further offending, nevertheless it is a factor that weighs against a finding of unacceptable risk.
As I mentioned, in determining whether the risk, of reoffending or endangering the safety of others while on bail, is unacceptable, it is relevant to take into account the age and circumstances of the applicant. In the present, case, in light of the applicant’s youth, his vulnerability in custody, the anticipated period of delay, and taking into account the three factors to which I have referred, I am not persuaded that if the applicant were released on bail, the risk of him reoffending or endangering the safety and welfare of others would be unacceptable.
Accordingly, I shall grant the applicant bail, subject to conditions which will include the following:
(i) The applicant reside at [redacted];
(ii) The applicant remain at the premises at [redacted] between the hours of 7:00 pm and 7:00 am unless in the company of a parent or a person agreed and approved by Youth Justice;
(iii) The applicant present at the front door of the premises at [redacted] during curfew hours upon request by any member of Victoria Police;
(iv) The applicant comply with all lawful directions of the Youth Justice Supervised Bail Program;
(v) The applicant engage in drug and alcohol counselling as directed by Youth Justice;
(vi) The applicant not use a drug of dependence as listed under the Drugs, Poisons and Controlled Substances Act 1981;
(vii) The applicant report to the Officer in Charge, or his or her nominee, at Werribee police station each Monday, Wednesday and Friday between the hours of 7:30 am and 5:00 pm;
(viii) The applicant not associate with his co–accused, MM and JV;
(ix)The applicant not contact or associate with any prosecution witness apart from the informant;
(x) The applicant surrender his passport and not leave the jurisdiction;
(xi)The applicant not attend any points of international departure;
(xii) The applicant appear at Melbourne Magistrates’ Court on 21 March 2022.
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