Re Application for bail by JF
[2017] VSC 139
•23 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0028
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by JF
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2017 |
DATE OF JUDGMENT: | 23 February 2017 |
CASE MAY BE CITED AS: | Re Application for bail by JF |
MEDIUM NEUTRAL CITATION: | [2017] VSC 139 |
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CRIMINAL LAW – Bail – Adjournment of two weeks - Children’s Court – Bail refused - 16 year old applicant - Show cause – Unacceptable risk – One step process – Significant criminal history – Family circumstances – Applicant transferred from youth detention to adult custody – Applicant injured while in adult custody - Bail Act 1977 (Vic) ss 3B, 4(4), 5(1) – Children, Youth and Families Act 2005 (Vic) s 362 - Bail granted on a provisional two week basis – Conditions of bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey SC and Mr J Mortley | Dotchin Tan |
| For the Respondent | Mr P Murphy | Victoria Police |
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HIS HONOUR:
On 15 February 2017, JF gave notice of his intention to apply for bail. On the same day an affidavit sworn by his solicitor, CT, in support of the application was filed. On 17 February 2017 an affidavit in opposition to bail was sworn and filed by Sergeant SD of Victoria Police. The application for bail was opposed.
The applicant was born on 28 October 2000 and is therefore 16 years of age. He has been remanded in custody by a Children’s Court Magistrate on charges of aggravated burglary, theft, handling stolen goods, driving at a dangerous speed and two charges of theft of a motor vehicle. These incidents took place on 6 December 2016. He is further charged with theft of a motor vehicle, theft, and two charges of reckless conduct endangering serious injury. These charges are based on events occurring on 29 December 2016.
In this case it is common ground that the applicant is in a show cause position for two reasons. Firstly, pursuant to s 4(4)(bc) of the Bail Act he is charged with aggravated burglary, and secondly he is the subject of charges relating to indictable offences alleged to have been committed whilst he was in the community awaiting trial for another indictable offence.[1] The applicant is therefore required to show cause as to why his detention in custody is not justified.
[1]S 4(4)(a) Bail Act 1977 (Vic).
As I have made clear on several previous occasions, I adhere to the view expressed by Maxwell P sitting as a trial judge in the bail application of Asmar,[2] where his Honour concluded as follows on the issue of an applicant showing cause under s 4(4) of the Bail Act.
In my view the question - the only question - for the Court on an application to which s 4(4) applies is: ‘Has the applicant shown cause why his/her detention in custody is not justified’.
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step.
This does not mean that the ‘unacceptable risk’ issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
There may, of course, be additional considerations which, in a particular case, might be said to justify the person’s continued detention. But the four nominated risks must, as it seems to me, be at the forefront of the Court’s consideration of the justification for the person’s detention. Put another way, I do not see how the Court could be satisfied – as s 4(4) requires it to be – that the accused person’s detention in custody was not justified, unless the Court was satisfied that there was no unacceptable risk on any of the four grounds.
[2][2005] VSC 487
The four nominated risks to which his Honour refers are, of course, the risks that the applicant will
(1)fail to surrender himself or herself into custody and answer to his/her bail;
(2)commit an offence whilst on bail;
(3)endanger the safety and welfare of members of the public; or
(4)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself/herself or another person.
In addition, it is important to note that s 3B of the Bail Act applies because it is an application for bail by a child. That section provides as follows:
(1)In making a determination under this Act in relation to a child a court must take into account (in addition to any other requirements of this Act):
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(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.
(2)In making a determination under this Act in relation to a child, a court may take into account any recommendation or information contained in a report provided by a bail support service.
(3)Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
I note the similarity of this section to s 362 of the Children, Youth and Families Act 2005 which in relation to sentencing of a child provides as follows:
(1)in determining which sentence to impose on a child the Court must as far as practicable have regard to:
(a)the need to strengthen and preserve the relationship between the child and the child’s family, and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance, and
(d)the need to minimise the stigma to the child resulting from a court determination, and
(e) the suitability of the sentence to the child, and
(f)if appropriate, the need to ensure that the child is aware that he/she must bear a responsibility for any action by him/her against the law, and
(g)if appropriate, the need to protect the community or any person from the violent or other wrongful acts of the child.
The legislative policy in relation to children in custody is therefore clear and I will later return to the effect of s 3B of the Bail Act on the conclusion I have come to.
Circumstances
The offences with which the applicant is charged represent the continuation of a pattern of serious conduct by him. The police summary which is exhibited to the affidavit filed in support of the application indicates that in relation to the 6 December 2016 matters, the applicant stole a Subaru sedan from a supermarket car park in Ferntree Gully. He then drove the vehicle to a fuel outlet with two friends, filling the car with fuel and driving off without paying.
In the early hours of the morning they went to a convenience store and attempted to enter by smashing glass. They then went to Croydon and entered premises, stealing keys to a Porsche Macan. They stole the Porsche and subsequently set fire to the Subaru. The applicant and his two friends drove the car around the eastern suburbs. On Eastlink in Donvale the speed of the vehicle was recorded at 179 kilometres an hour. They were recorded on various other traffic cameras. The car was later recovered in an underground car park in Glen Waverley.
On 29 December 2016, the applicant is alleged to have stolen an Audi sedan and early in the morning of that day the vehicle was filled with fuel and driven off without paying. The applicant then again drove the vehicle up and down Eastlink at speeds well in excess of the designated speed. It was on this day that he was arrested in Chapel Street, St. Kilda. The applicant’s conduct exposed members of the public to significant risk.
The applicant has a very substantial criminal history despite his age. He said he has been using cannabis since he was 13 years and methylamphetamine since he was 15 years. There seem to be some 15 separate appearances in the Children’s Court commencing in November 2013 involving a broad range of offences, including theft, theft of a motor vehicle, driving offences, wilful damage, resistance of police and similar.
In one incident when he was 13 years of age, his driving of a stolen vehicle involved a collision and injuries to him, as a result of which he nearly lost a leg.
The prior convictions involving dangerous offending, amongst other offending, are as follows.
· On 29 September 2016, theft of a motor vehicle; reckless conduct endangering serious injury; unlicensed driving; dangerous driving while pursued by police.
· On 14 September 2015, reckless conduct endangering serious injury; unlicensed driving; drive motor vehicle without a license; recklessly cause injury; theft of a motor vehicle; drive in a manner dangerous; reckless conduct endangering serious injury; reckless conduct endangering life.
· On 16 April 2015, theft of a motor vehicle, three offences; unlicensed driving, four offences; reckless conduct endangering life, two offences; drive in a manner dangerous; drive in a manner dangerous causing serious injury.
· On 5 February 2015, theft of a motor vehicle, two offences; unlicensed driving, three offences; reckless conduct endangering serious injury, two offences; drive in a manner dangerous causing serious injury.
· On 27 November 2014, theft of a motor vehicle.
· On 23 September 2014, theft of a motor vehicle, two offences; unlicensed driving, two offences; reckless conduct endangering serious injury; drive in a manner dangerous; drive in a manner dangerous causing serious injury.
· 28 May 2014, theft of a motor vehicle; unlicensed driving; drive in a manner dangerous causing serious injury.
· 28 November 2013, theft of a motor vehicle.
This is a terrible record for one so young, and it is acknowledged that the applicant’s previous conduct, where the public was endangered by his lawful actions, is an important matter for me to consider on this application.
However, in many respects, this young person’s conduct is depressingly unsurprising. The Victoria Sentencing Advisory Council in their publication, Reoffending by Children and Young People in Victoria in 2016, indicate that when children begin their offending at the age of 13, as the applicant did, 84 per cent of them reoffend over the following five years.
Clearly, renewed efforts must be made by all involved, particularly in government, to break the cycle. The solution is not to be found in increasing the number of children in custody.
Previous breaches
When one reads through the prior history of the applicant, it can be seen that there have been multiple previous breaches of various orders of the Children's Court, demonstrating the unwillingness of the applicant to comply with such orders. Consistent with the objectives of that court, there have been numerous opportunities offered to the applicant, which he has clearly failed to respect. That history is understandably the primary basis on which the respondent on this application maintains that cause has not been shown by the applicant.
Procedural history
On 30 December 2016 the applicant was before the Melbourne Children’s Court and did not apply for bail. On 18 January 2017, at Ringwood Children’s Court, he was refused bail. On 13 and 14 February 2017, a further application for bail was made, and it was again refused. Because this is a fresh application, rather than in the nature of an appeal, I will not canvas the reasons for the earlier refusals.
Having been initially remanded on or about 29 December 2016, sometime in early January 2017, the applicant was moved to the Grevillea Unit, Barwon Prison, from the Parkville Youth Justice Centre. That followed significant disturbances at Parkville on 12 to 13 November 2016. It is not suggested that the applicant was part of those events, but for whatever reason, he was transferred.
The result of the applicant’s transfer to Barwon Prison was disastrous. He alleges that he was assaulted by a staff member on 14 January 2017, another inmate on 26 January 2017, and then on 30 January 2017 by three other inmates during a significant disturbance, in which there seem to have been ten people involved. There does not seem to be much dispute about what occurred on that last occasion or the subsequent result requiring the applicant’s admission to hospital at Geelong for treatment of his injuries, including a neck fracture at C7. He is still recovering from that injury, and any disturbance of it could have significant medical consequences. He was later transferred to the Malmsbury Youth Justice Centre, where he remains at the present time.
I am told by the child protection practitioner that whilst at Barwon, the applicant attempted to harm himself with a broken fan.
The idea that a 16-year-old child could be accommodated in a high security adult prison, where he could be attacked in the way that he was, appals me. I am told that if care is not taken in managing the rehabilitation of his injury, the risk to his welfare remains very significant.
He has since been placed at Malmsbury Youth Justice Centre. He was initially in an isolation room without any contact with others. That has relaxed to a degree, but he still cannot access Parkville College or the programs department. He is out of his room for seven to eight hours per day, and outside in the open air for one hour per day.
Family considerations
The information before me indicates that the applicant is the child of MR and JF. When he was born they were 14 and 15 years of age respectively. MR has three other children. Until the age of seven, the applicant lived with his mother but was then removed. After some years with other family members he returned to his mother, and it is her with whom it is now proposed he will live when he is released, whenever that occurs.
So far as his father is concerned for most of the applicant’s life he was in custody and, as I understand, it is suggested they have committed an offence or offences together in the past.
On 10 February 2017, the applicant’s father overdosed on the drug heroin and was revived. He apparently then took a second overdose, as a result of which he was hospitalised and is now in a critical condition with pneumonia and minimal brain activity. The prognosis looks poor, and it is not clear whether he will survive.
The applicant is subject to a family preservation order until 15 May 2017. That order enables the Department to monitor him in the care of his mother.
Department of Health and Human Services
Apart from the applicant, two witnesses gave evidence on the proposed support plans that are to be implemented on behalf of the applicant should he be released on bail. On 13 February 2017, a progress report was prepared by two youth justice workers.
I am told that a targeted care package is proposed for the applicant. The purpose of that is to implement a number of supports that can be of benefit to the rehabilitation of the applicant. The package was submitted by a group called Concern Australia, and covers a number of aspects addressing the needs of someone in the applicant’s position. The package was endorsed on 23 August 2016. The case manager will be a LP, with whom the applicant has had some degree of contact already.
Whilst initially not supporting the release of the applicant on bail, the position of Youth Justice now is that given the immediate past history, the applicant’s injury, and his father’s illness they do support his release. LJ, a senior child protection practitioner, said in her evidence that she had spoken to the applicant in custody and described him as having insight and a commitment to changing his behaviour. She said he wants to support his father.
Part of the plan involves assistance from a psychologist, but from Malmsbury such assistance is by telephone only because the relevant psychologists are not permitted to visit Malmsbury because of the perceived danger of doing so. Psychological assistance to the applicant by telephone is obviously not satisfactory. In the opinion of BM, team leader with Youth Justice, psychological counselling is ‘imperative’ for him.
Applicant gave sworn evidence
On this application, the applicant himself gave sworn evidence. Essentially, his evidence was that he realised if he offended again he would not be able to spend time with his father. He said he already had a good relationship with the case worker LP, and he is comfortable with him. He said also that he wanted to finish his schooling and get a good job.
I was only moderately impressed with the evidence the applicant gave. Nonetheless, he gave his evidence, exposed himself to being cross-examined in order to offer some evidence of his change of attitude, and there was, therefore, little more he could do.
Analysis
Mr Morrissey of senior counsel, who appears with Mr Mortley on behalf of the applicant, began the application by acknowledging the risk in releasing the applicant on bail, and outlining propositions as to how that risk might be ‘tamed’, as he put it.
In addition to the injury which was inflicted on the applicant, and the dire circumstances which have afflicted his father, it was also argued that the applicant is highly motivated and reliance was placed on his sworn evidence in support of that conclusion. Reliance is placed on a package of measures to assist the applicant, about which evidence was given before me and to which I have already referred.
On the other hand, the respondent has submitted that the release of the applicant is a risk to the community. Even injury to himself, it was argued, has not deterred him from committing further offences. It was submitted on behalf of the respondent that the applicant has already spent in the order of 16 months in a children’s custodial institution. If that is true, then clearly incarceration is not working in the case of this young person.
As Justice Bell said in Woods v DPP:[3]
The applicant is a child, and his long-term rehabilitation must be a strong consideration. The detention of young people on remand can have deleterious consequences for them and the community, which are out of all proportion to the purpose of ensuring appearance at trial and protecting the community, separates them from their families and the community, disrupts their education and employment, causes them to associate with other young offenders at a vulnerable time in their lives, often as in the present case, leads to them being held in police lock-up rather than a youth detention facility, deprives them of access to therapeutic programs, and increases the risk of them being given a sentence of incarceration.
Despite these powerful considerations supporting bail for young people, there will be cases where refusing bail is demanded as a last resort by even stronger countervailing considerations. This is not one of them.
[3][2014] VSC 1.
Despite the factors that mitigated against doing so my initial reaction to this application was to refuse bail, for reasons that are obvious. The applicant has a terrible history of prior offending, and counsel for the respondent was right to highlight that in his submissions as to why bail should not be granted.
Of course, Mr Murphy argued, the applicant has not shown cause as to why his detention in custody is not justified.
However, I remain conscious of the significance of s 3B of the Bail Act. These are not just words in a statute; they have an important role when it comes to children in custody. That section requires me to carefully consider whether there is some other option to remanding the child in custody.
The applicant gave evidence about his motivation and willingness to comply with conditions. We will see how that goes. He is far too young to give up on, but he has used up much of the goodwill of a large number of judicial officers, police, departmental officials and members of the public. His conduct simply has to change. If it cannot change then bail is out of the question, and what becomes of him then is a matter for a Children’s Court magistrate.
As I have already mentioned, s 3B(1)(a) of the Bail Act requires me to consider all other options before remanding a child in custody. Counsel for the respondent has submitted there are no other options. With respect, and after consideration, I do not yet agree.
With s 3B particularly in mind, I have come to this conclusion. I am not prepared to release the applicant on bail indefinitely. I propose to impose on him a level of judicial supervision by me, which may in fact last until the applicant’s matters are dealt with in the Children’s Court.
I might also add that nothing I have said or done in relation to this application is intended to bind the Children’s Court to a course of action. That court, which has particular expertise in the area, is obviously entitled to examine the issue of bail and of course, the ultimate sentencing of this young man afresh.
Taking all of the factors to which I have referred into account, I am satisfied the applicant has shown cause why his detention in custody is not justified, but only for a period of two weeks. I am persuaded that the risk he poses can be made acceptable for that period also.
I therefore propose to take the following course. Pursuant to s 5(1) of the Bail Act, I will adjourn the further hearing of this application until Thursday 9 March 2017 at 10.30am. Until that time on that date, the applicant will be released on his own recognisance on the following conditions:
(1)That he attend before me in this court on 9 March, or such earlier dates as may be required;
(2)That the applicant report to the officer in charge of the relevant Police Station on Monday, Wednesday and Friday of each week, between the hours of 9.00am and 6.00pm;
(3)That until 9 March 2017, the applicant reside with his mother;
(4)That a curfew will apply, which will require him to remain inside the premises between the hours of 8.00pm and 7.00am each day. I would add to that that both the applicant and his mother should facilitate reasonable visits by police, provided they are made at a reasonable hour.
(5)The next condition, I will ask the mother of the applicant to personally undertake to this Court to me that she will report any breach of the applicant of any of his bail conditions to Victoria Police immediately.
(6) Next, that until further order, the applicant will not consume any alcohol or any drug of any kind, and in any quantity, and will cooperate with any requirement that he be tested for such alcohol or drugs.
(7) Next, the applicant will not drive any motor vehicle of any kind.
(8) Next, that the applicant comply with all lawful directions of any officer of the Department of Health and Human Services, including, but not limited to LJ and BM.
(9) Next, that the applicant attend all appointments which have been made for him according to the calendar, which was marked as Exhibit 2 on the application, and which will commence today, Thursday 23 February 2017.
On 9 March, I will resume hearing the matter to determine whether or not the interim order for bail should be continued. Whether or not that occurs will depend on what I am told about the applicant’s compliance during the two-week period. I will expect that those concerned in supporting the applicant will report to me on his compliance and attitude during this period.
Any breach, I emphasise, any breach of any condition, will result in the immediate revocation of the applicant’s bail. In all likelihood, I will then adjourn the matter again for a further period of time to enable the applicant to continue to be monitored.
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