Re Application for Bail by JS
[2020] VSC 447
•23 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0151
| IN THE MATTER OF the Bail Act 1977 |
| and |
| IN THE MATTER OF an Application for Bail by JS |
---
JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 July 2020 |
DATE OF ORDERS: | 3 July 2020 |
DATE OF REASONS: | 23 July 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by JS |
MEDIUM NEUTRAL CITATION: | [2020] VSC 447 |
---
CRIMINAL LAW — Application for bail — Child aged 15 years — Trafficking in a drug of dependence to a child and other offences whilst on bail for Schedule 2 offences — Seven sets of charges — Applicant required to demonstrate exceptional circumstances justifying the grant of bail — Exceptional circumstances conceded by respondent — Exceptional circumstances established — No unacceptable risk — Bail granted with conditions —Bail Act 1977, ss 1B, 3AAA, 3B, 4AA, 4A, 4D and 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Rolfe | Criminal Lawyers Geelong |
| For the Respondent | Mr P McKimmie | Victoria Police |
HIS HONOUR:
The applicant, JS, is a child aged 15 years.
On 4 June 2020, he was arrested and remanded in custody on the following charges:
· Trafficking in a drug of dependence to a child (cannabis);
· Retaining stolen goods;
· Supplying a drug of dependence to a child (cannabis);
· Possessing a drug of dependence (two counts) (cannabis, magic mushrooms); and
· Committing an indictable offence whilst on bail (four counts).
At the time of the alleged offending, the applicant was on bail or charged on summons in respect of six additional matters. In total, he faces 37 charges arising from offending said to have occurred between 22 October 2019 and 4 June 2020.
On 5 June 2020, the applicant applied for bail in the Geelong Children’s Court. His application was refused on the basis that, although he had successfully demonstrated exceptional circumstances, the presiding magistrate found that there was an unacceptable risk that, if granted bail, he would endanger the safety and welfare of any person or commit an offence while on bail. On the same day, his existing grants of bail were revoked and he was remanded on all seven matters.
On 29 June 2020, the applicant made a further application for bail in the Geelong Children’s Court, which was again refused on the same basis as the first application.
By notice dated 30 June 2020, he made an application for bail in this Court.
Because the applicant is accused of committing Schedule 2 offences within the meaning of the Bail Act 1977 (‘the Act) while on bail for additional Schedule 2 offences, I am required to refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify his release on bail.[1]
[1]Bail Act 1977 ss 4AA(2)(c)(i) and s 4A(1A) (‘the Act’).
In written material filed on behalf of the respondent, it is conceded that it is open to me to find that exceptional circumstances have been demonstrated, primarily due to the delay arising from the measures taken by the courts in response to the COVID-19 pandemic and the likelihood that the applicant would not receive a custodial sentence that would exceed the time spent on remand if he is found guilty of the charged offences.
Having regard to the basis on which that concession is made, together with further considerations to which I will later refer, I am satisfied that exceptional circumstances have been made out.
This application therefore turns on whether I am satisfied by the respondent that, if the applicant is granted bail, there is an unacceptable risk of the kind outlined in s 4E(1) of the Act.
The alleged offending
The applicant seeks bail in respect of seven sets of offending in which he is charged by six different informants, as follows.
By way of background, at the time of the alleged offending, the applicant resided at a residential care unit in Thomson, Geelong, operated by MacKillop Family Services.
Informant Beasley
In the first matter, where the applicant is charged by Senior Constable Noah Beasley, he faces a single count of unlawful assault.
On 22 October 2019, the applicant was in the lounge room of his residential care unit in the company of his carer, Elizabeth Arnott, who was holding a mug of coffee in her hands, discussing his care arrangements.
The applicant received a phone call that angered him, causing him to pick up a couch cushion and threaten to throw it at Arnott. She asked him not to throw the cushion as she had a coffee in her hands. As she took a sip from her mug, the applicant allegedly threw the cushion, hitting her in the face and causing her to hit her front teeth on the mug. He is alleged to have then thrown a second cushion at Arnott, knocking the mug out of her hand and spilling coffee. The applicant then left the unit, calling Arnott a ‘fucking slut’. She reported the incident to the Geelong High Risk Youth Unit.
The applicant was arrested and interviewed on 28 October 2019. He was initially charged on summons and later remanded.
Informant Johnson
In the second matter, the applicant is charged by Leading Senior Constable Brad Johnson with one count of unlawful assault.
On 20 November 2019, the applicant was present at his residential care unit. He attempted to enter the restricted office area to obtain a drink from the fridge inside. His carer, Judith Frichot, and two others tried to stop him from entering. As Frichot held the door to the office open to speak to the applicant, he is alleged to have pushed the door with such force that Frichot’s hand was crushed between the door and the fridge, causing instant and extreme pain and bruising. The applicant then entered the office and removed a drink from the fridge, stating ‘I can do what I like, and you can’t tell me what to do’ before leaving.
Police attended to arrest the applicant and viewed a letter written by him following the incident, in which he stated, among other things, that he was sorry and was ‘coming off crack’. He made partial admissions in his interview but otherwise stated ‘no comment’ to questions regarding the assault. He was charged on summons and later remanded.
Informant Hughes
The applicant is charged by Senior Constable Daniel Hughes with recklessly causing injury, five counts of assault with a weapon, false imprisonment, affray, assault in company, two counts of unlawful assault, making a threat to kill and two counts of robbery.
On a date in early February 2020, the applicant travelled to Northcote with the complainant, YAH, who has an intellectual disability. While there, the applicant is alleged to have picked up a piece of glass from the ground and smashed it over YAH’s head, cutting his neck and causing pain.
On 16 February 2020, YAH met with the applicant in Norlane at the behest of the co-accused, CR. While together, it is alleged that the applicant forcibly escorted YAH to a residence in Norlane to meet with CR by punching him in the arm and intimidating him. At the residence, the applicant and CR proceeded to punch YAH to the face and stomach. They prevented him leaving. The applicant allegedly sprayed deodorant in YAH’s eyes so he could not see.
On 21 February 2020, the applicant is alleged to have abused his residential care worker, Frichot, by yelling at her and throwing both a picture frame and a pot plant at her, as well as attempting to punch her. She was hit to the side of the head with the picture frame. The applicant is alleged to have told her ‘I am going to fucking kill you’ before returning to his bedroom.
On 23 February 2020, the applicant boarded a train to Melbourne from Geelong railway station and located YAH and two others, JG and SCR, seated in one of the carriages. He allegedly punched YAH to the side of the face and took his seat as YAH moved towards the window. The applicant then stated that YAH was a ‘snitch’ and asked ‘do you want me to keep you hostage like last time?’ referring to the incident on 16 February. He took YAH’s bumbag containing his phone, charger and wallet with $10 and returned only his debit card, before demanding that JG give him the Kathmandu jacket he was wearing. JG complied, fearing for his safety. The applicant then allegedly wrapped a gold chain around his fist and motioned to punch YAH and JG before blocking their access to the aisle by putting his feet across the seats. The three complainants eventually exited the train at North Geelong railway station. The applicant exited at North Shore railway station, where he threw away most of the stolen items.
The applicant was arrested the following day at Lara railway station in possession of the Kathmandu jacket said to belong to JG. He was interviewed at Corio police station and made partial admissions, including that YAH had permitted him to smash glass on his head, that CR had assaulted YAH but that he had only sprayed deodorant in YAH’s eyes and stepped on his back, that he had punched YAH and stolen his bumbag on the train and that he had assaulted and threatened to kill Frichot. He denied taking JG’s jacket.
The applicant was remanded overnight and granted bail in the Geelong Magistrates’ Court on 25 February 2020, with conditions including compliance with the Youth Justice Supervised Bail Program. His co-accused, CR, was charged and bailed on offences of false imprisonment, affray, assault with a weapon, assault in company and unlawful assault.
Informant O’Brien
In the fourth matter, the applicant is charged by Senior Constable Lauren O’Brien with criminal damage, theft and two counts of committing an indictable offence whilst on bail, said to have occurred on 15 March 2020.
On that day, the applicant was present at his residential care unit. He asked carer Ashley Hall to let him into a locked bedroom connected to the staff office in order to watch television. When his request was refused, he allegedly collected four butter knives from the kitchen, wedged them into the doorframe of the door and kicked the door 20 times until it opened. Once inside, he and another resident of the facility took the staff mobile phone and a mattress from the staff office before briefly leaving the residence.
Police attended shortly after and conveyed the applicant to Geelong police station, where he was charged and later granted police bail.
Informant Hine
The applicant is charged in this matter by Constable Lily Hine with possessing a drug of dependence (cannabis) and committing an indictable offence whilst on bail.
On 1 May 2020, police from the Geelong High Risk Youth Unit attended the applicant’s residential care unit following intelligence that he was in possession of drugs. While his room was being searched, the applicant attempted to leave while wearing a bum bag. Upon searching the bum bag, police located a large sandwich bag containing cannabis.
The applicant was arrested and conveyed to Geelong police station where he gave a ‘no comment’ record of interview. He was charged and granted police bail on the same day.
First informant Korevaar matter
The applicant is charged by Senior Constable Ben Korevaar with theft, attempted arson, possessing a drug of dependence (cannabis) and three counts of committing an indictable offence whilst in bail, arising from an incident on 5 May 2020.
On 5 May 2020 at around 6.30pm, the applicant and co-accused, BT, are alleged to have stolen a number of items, including two steak knives and fire lighters, from a Coles store in Belmont. The two then proceeded to a park in front of the Belmont Community Library, where they allegedly used the fire lighters in an attempt to set fire to a large metal sculpture.
The applicant and BT were later arrested at the applicant’s residential care unit, where he was found to be in possession of one of the stolen knives and green vegetable matter said to be cannabis. He was granted bail on 6 May 2020. BT was charged and bailed on offences of attempted arson and theft.
Second informant Korevaar matter
Finally, the applicant is further charged by Senior Constable Ben Korevaar with the offences detailed at the outset of these reasons.
On 17 May 2020, the applicant is alleged to have used Facebook Messenger to arrange the supply of cannabis to a 13 year old associate, RM, in exchange for an Apple iPhone that RM had stolen from a co-resident of his residential care unit. Staff at the applicant’s own residential care house became aware of this arrangement through unknown means, however, the exchange went ahead later that day. The applicant states that he supplied RM with lawn grass, rather than cannabis, but acknowledged that RM believed he was receiving cannabis.
On 4 June 2020, police were informed by the applicant’s carers that he had again arranged to sell drugs to RM. They located the applicant and RM at a bus stop outside Ormand Road shopping centre in Geelong East and searched the applicant. Located inside his jacket pocket was a packet of cigarettes containing a small ‘deal bag’ of three magic mushrooms and a piece of foil containing one gram of cannabis. The applicant was arrested and conveyed to Geelong police station for interview, where he denied arranging the drug deal with RM, stating that there are over 60 people that use the same Facebook account. With respect to the drug possession charges, he stated that he bought a packet of cigarettes for $15 and did not know that the packet contained drugs.
The applicable legislation
The applicant is accused of committing Schedule 2 offences within the meaning of the Act, namely, trafficking in a drug of dependence to a child,[2] while on bail for additional Schedule 2 offences, namely, offences against the Act.[3] It follows that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail.
[2]Ibid, Schedule 2, item 24(a).
[3]Ibid, Schedule 2, item 30.
In considering whether exceptional circumstances exist, I am required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[4]
[4]Ibid s 4A(3).
Further, as the applicant in this matter is a child, s 3B of the Act applies. That section relevantly states:
(1)In making a determination under this Act in relation to a child, a bail decision maker 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, bail decision maker 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.
As observed by T Forrest J (as his Honour then was) in Re JO:
Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[5]
[5][2018] VSC 438 [14] (citations omitted).
As stated, I am satisfied that exceptional circumstances have been demonstrated.
I am required by the Act to refuse bail all the same if I am satisfied by the respondent that there is an unacceptable risk that the applicant would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires me to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[6]
[6]The Act, s 1B(2).
The applicant’s personal circumstances
The applicant is a 15 year old child who has been in the care of the Department of Health and Human Services since January 2019. As stated, prior to his remand, he resided at a residential care unit operated by MacKillop Family Services in Thomson, Geelong. This arrangement was preceded by the applicant’s mother relinquishing care of him and his grandparents being unable to take over long-term caring responsibilities.
The applicant is subject to a Family Reunification Order that is case managed by Child Protection. According to a supervised bail progress report prepared by Youth Justice dated 26 June 2020, the circumstances giving rise to the order are said to involve the applicant being exposed to inappropriate physical discipline by his step father, from whom his mother has now separated, as well as ongoing difficulty in managing the applicant’s behaviour. Prior to his remand, the applicant participated in weekly overnight visits with his mother and he has maintained contact with her during his time on remand.
A factor contributing to the applicant’s behavioural difficulties are his diagnoses of autism and attention deficit hyperactivity disorder (‘ADHD’), which are also detailed in the Youth Justice report. He is in receipt of funding from the National Disability Insurance Scheme, and participated in specialist education with MacKillop Education until November 2019.
The applicant struggles with substance abuse issues including regular use of cannabis and prior use of methamphetamine.
Criminal history
The applicant has a limited, recent criminal history comprising one appearance in the Geelong Children’s Court on 12 February 2020, where he was found guilty of using an imitation firearm without exemption or approval, five counts of unlawful assault, contravening an interim Personal Safety Intervention Order (‘PSIO’), three counts of criminal damage, intentionally damaging property, three counts of committing an indictable offence whilst on bail, theft, failing to answer bail and possessing cannabis. He received a 6-month good behaviour bond in the amount of $300.
The applicant is presently subject to a PSIO naming complainant YAH as the protected person. That order expires on 3 March 2021.
Parties’ contentions and conclusion
The applicant, as set out in an affidavit in support of bail affirmed on 30 June 2020, and written and oral submissions made by his counsel, Katherine Rolfe, relied on the following matters in support of bail.
Firstly, the applicant’s very young age. In this regard, Ms Rolfe placed reliance on the considerations set out in s 3B of the Act and referred me to the aforementioned comments of T Forrest J in Re JO,[7] as well as other decisions of this Court involving bail determinations in respect of child applicants.[8] In particular, she noted that the applicant’s relationship with his mother is at a ‘positive juncture’ in that their level of contact had progressed over the last 12 months from minimal contact to overnight visits at her residence on a weekly basis, and that his mother remained willing to continue this arrangement if he was granted bail.
[7][2018] VSC 438 [14].
[8]Re FA [2018] VSC 372 (Priest JA); Re Martyn Moore [2019] VSC 344 (Priest JA); Re JF [2020] VSC 250 (Tinney J).
In addition, it was submitted that the applicant is particularly vulnerable due to his diagnoses of autism and ADHD. His experience of detention to date has been difficult and made more onerous by the combination of the aforementioned vulnerabilities and restrictions arising from Youth Justice’s response to the COVID-19 pandemic.
Further, the applicant’s proven criminal history is limited to one finding of guilt for which he received a good behaviour bond. He has been on remand since 4 June 2020 and this is his first significant period of detention. It was submitted by Ms Rolfe that it is likely that, if found guilty of the offences charged, the applicant will not be sentenced to a period of detention. It was also submitted that there will be a delay in the finalisation of the applicant’s matters, due in part to the court’s response to the pandemic.
It was put by Ms Rolfe that, if granted bail, the applicant would be able to enjoy a range of supports that, although available to him prior to his remand, were not fully explored. These include supervision from Youth Justice, supports relating to mental health and disability, education and services addressing his substance abuse issues.
Evidence was called on behalf of the applicant from Erin Condie, a senior case manager from Youth Justice. She has been responsible for supervising the applicant since he was first granted bail in February 2020 and prepared the progress report dated 26 June 2020 to which I have referred. In that report, Ms Condie relayed the concerns of clinicians at the Parkville Youth Justice Precinct regarding the applicant’s declining mental health, in particular that he had been experiencing suicidal ideations and attempting self-harm. His experience of custody was said to have been particularly difficult due to incidents in which he has been victimised and targeted by other young people while in custody. Her report also confirmed that, while subject to supervised bail, the applicant had attended all supervision appointments as required.
Ms Condie was in a strong position to speak about the applicant, having been the person charged with his supervision on bail for some time. She set out, in some detail, the supports that had been available to the applicant in recent times, and it did appear on an analysis of the material that those supports had perhaps not been pursued to the level they might have been. However, the importance of the production of a detailed and supervised program for the applicant in the ongoing future is now understood.
It is fair to say Ms Condie was of the view that the applicant’s behaviour had improved since he had been in custody, in particular with respect to his willingness to engage with the services offered to him. For instance, between November of last year and June of this year, the applicant had not been prepared to engage in education, even though a program was open to him. However, he now appears to be prepared to engage in such a program, which, in my view, would be very important and hopefully act as a strong influence against reoffending.
It also seems that the applicant, having now been in custody for a month, had a better insight into where his bad behaviour might lead him, and he had found being in custody difficult and unpleasant.
I also heard from Stevie-Jane McMahon from MacKillop Family Services, who told me that the applicant would be able to continue to reside at his residential care unit in Thomson. In addition, consistent with the Family Reunification Order, it would now be possible for the applicant to begin some reattachment with his mother. Indeed, the applicant had been, at first unofficially and then officially, residing with his mother one night per week prior to this period of remand.
It was indicated to me that Lily Matthews, an advanced Child Protection practitioner with the Department of Health and Human Services, who has primary responsibility of the applicant pursuant to the Family Reunification Order, was of the view that the applicant’s contact with his mother could be reasonably expanded to two or three nights per week. She accepted that, because of the need for a much more structured program should the applicant be released on bail and that such a program should be based in and around the location of his residential care unit, it would be satisfactory for the applicant to reside with his mother on Friday, Saturday and Sunday nights, but to reside at the unit for the balance of the week and there, undergo the programs that were designed for him.
Mr McKimmie, who appeared on behalf of the respondent, accepted that it would be open to me to find that exceptional circumstances exist.
I am satisfied that exceptional circumstances have been made out, principally because of the delay, the difficulties that exist in the whole legal system and in relation to the terms of detention due to the present COVID-19 pandemic, the age of the applicant, the fact that he is finding the present circumstances in which he is detained very difficult and to a large degree oppressive, and that it is unlikely that he would receive a custodial sentence that would exceed the time spent on remand, or at all, if he is found guilty of the charged offences. I note that he is next due to appear in respect of these matters on 8 July 2020, however it is most unlikely that the matters will be finalised on that date.
Mr McKimmie submitted to me that the applicant was an unacceptable risk of offending whilst on bail. A reasonable analysis of his history of proven and alleged offending, much of which has occurred when he has been on supervised bail, gives rise to the possibility of risk. As was put by Mr McKimmie, there is a possibility of that being an unacceptable risk. When first analysed, that is a reasonable proposition and one would understand why Mr McKimmie is not prepared to resile from it.
This, however, is a difficult case. The applicant has reasonably substantial support available to him in the community. That support is not much different from the support as it existed at the time these matters occurred. The alleged offending itself appears to be random and situational, rather than systemic. The charges themselves are serious enough, in that they involve violence and must have been very threatening to the victims of the offending.
I observed in the proceedings that cases such as these do not fit well into the criminal justice system and they are cases that are essentially, at the end of the day, about child welfare. Of course, those propositions are of little consolation to the victims of the alleged offending.
I would be a very foolish person, indeed, if I said I did not think there was a risk of the applicant reoffending. I am, however, not persuaded that that risk would be unacceptable if I put in place conditions to prevent that.
I do understand the frustration of the police members in this case, but I am obliged pursuant to s 3B of the Act, to have specific regard to the applicant’s youth. While that will not be an overwhelming consideration, it is nonetheless an important consideration and in those circumstances, I am satisfied that it is appropriate to grant bail.
Accordingly, the applicant will be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Geelong Children's Court on 8 July 2020 and then surrender himself, and must not depart without the leave of the Court, and if leave is given, to return at the time specified the Court and again, surrender himself into custody.
(b) He reside Monday to Friday at [address redacted], and not change that address without the leave of the Court.
(c) Whilst residing at [address redacted], he obey the lawful instructions of members of the staff of MacKillop Family Services.
(d) He remain at those premises between the hours of 8 pm and 7 am each day for the duration of bail, except when in the company of the staff of MacKillop Family Services.
(e) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(f) He reside each Friday, Saturday and Sunday at [address redacted], and not change that address without the leave of the Court
(g) Whilst residing at those premises, he obey the lawful instructions of [his mother].
(h) He remain at those premises between the hours of 8 pm and 7 am each day for the duration of bail, except when in the company of his mother.
(i) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(j) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drug, Poisons, and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(k) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police;
(l) He attend the Youth Justice Supervised Bail Support Service as directed, and he comply with all lawful directions of the Youth Justice Supervised Bail Support Service.
(m) He not contact, directly or indirectly, the co-accused, being CR and BT, for the duration of the bail period.
(n) He not contact directly or indirectly any witness for the prosecution, except the informant or any member of the staff of MacKillop Family Services.
(o) He not leave the state of Victoria.
---
0
4
0