Re Application for Bail by KA

[2016] VSC 444

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0100

IN THE MATTER of the Bail Act 1977 (Vic)

and 

IN THE MATTER of an Application for Bail by KA

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2016
DATE OF JUDGMENT:	26 July 2016
CASE MAY BE CITED AS:	Re Application for Bail by KA
MEDIUM NEUTRAL CITATION:	[2016] VSC 444

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CRIMINAL LAW – Bail – Applicant aged 17 – Show cause situation – Bail granted – Bail Act 1977 (Vic) ss 3B, 4(2)(d), 4(3), 4(4) – No principle of law

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Victoria Legal Aid
For the Respondent	Ms B Cowley	Victoria Police

HER HONOUR:

1. This is an application for bail by a young person, KA (the ‘Applicant’), who has been charged with offences, in two separate police briefs, allegedly committed in June and July 2016. Both prosecutions are now pending before the Children's Court.

1. The Applicant is aged 17 having been born in [country redacted] on [date redacted].

1. He has lived in Australia since early childhood arriving here with his mother in 2003.

1. He normally resides with his mother, a sister and two brothers in [location redacted] in the Western suburbs of Melbourne.

1. He has no prior convictions.

1. He was charged and bailed by Detective Senior Constable Frazer on a number of offences before being again arrested, this time by the Respondent to this application, Detective Senior Constable Jon Ballard.

1. The sequence of offences currently awaiting determination in the Children’s Court are therefore as follows:

Police Brief	Date of Charges	Charges
Frazer	25 June 2016	1.   Theft of Motor Vehicle on 25 June 2016
		2.   Fail to Stop Motor Vehicle on Request on 25 June 2016
		3.   Dangerous Driving While Pursued by Police on 25 June 2016
		4.   Evade Police on 25 June 2016
		5.   Handle Stolen Goods on 25 June 2016
		6.   Unlicensed Driving on 23 June 2016
	8           24 July 2016	7.   Theft on 17 June 2016
		8.   Robbery on 23 June 2016
		9.   Obtain Property by Deception on 23 June 2016
		10. Obtain Financial Advantage by Deception on 23 June 2016
		11. Theft on 25 June 2016
		12. Attempt to Obtain Property by Deception on 24 June 2016
		13. Attempt to Obtain Property by Deception on 24 June 2016
		14. Obtain Property by Deception on 24 June 2016
		15. Obtain Property by Deception on 24 June 2016
Ballard	14 July 2016	1.   Aggravated Burglary on 10 July 2016
		2.   Theft on 11 July 2016
		3.   Theft of Motor Vehicle on 11 July 2016
		4.   Commit an Indictable Offence Whilst on Bail on 11 July 2016

1. The Applicant was bailed on the Frazer charges by Detective Frazer on 25 June 2016 to appear at the Children's Court at Werribee on 9 September 2016.

1. The conditions of bail were that he was to reside at his mother's address, not leave the residence between 6 pm and 6 am and present at the front door during curfew hours upon request by police.

1. The Applicant is alleged to have breached his bail conditions by re-offending.

1. The new offences laid by the Respondent are serious. He therefore opposes bail. He indicates that the Applicant is in a show cause position pursuant to:

(a) s 4(4)(a) of the Bail Act 1977 (‘the Act’), having been charged with an indictable offence alleged to have been committed whilst awaiting trial for another indictable offence;

(b) s 4(4)(c) of the Act, having been charged with aggravated burglary under s 77 of the Crimes Act 1958; and

(c) s 4(4)(d) of the Act, having been charged being charged with an offence against the Act, namely, committing an indictable offence whilst on bail pursuant to s 30B of the Act.

1. The Respondent also submits that there is an unacceptable risk that the Applicant would commit further offences if released on bail.[1]

   [1]Bail Act 1977 (Vic) s 4(2)(d)(i).

1. The Respondent submits that the Applicant's continued offending breached the strict bail conditions imposed by Detective Frazer which had been aimed to prevent the Applicant from re-offending.

1. He also submits that the Applicant has placed the safety of members of the public and of himself at risk by his re-offending and that the Applicant has failed to show cause why his continued detention in custody is not justified.

1. Regarding the charges in which Detective Frazer is the informant, the evidence implicating the Applicant includes allegations that the Applicant was observed by police driving a stolen green BMW vehicle with stolen number plates. He is alleged to have been driving in tandem with other youths who were in a stolen Toyota Kluger vehicle in Tarneit. When police sought to intercept the BMW, it is alleged that the Applicant engaged in evasive and dangerous driving before stopping next to the passengers from the Toyota Kluger in Quartz Way Tarneit.

1. The occupants of both vehicles were observed loitering near the stolen vehicles and they were then arrested by police whilst still at that location and in possession of the two vehicles.

1. The Applicant is alleged to have made attempts to sell the Toyota Kluger to two car traders shortly before arrest. Police also allege that the Applicant was an occupant in the stolen green BMW shortly before a person was robbed by the occupants of that car near the Ginifer railway station on 23 June 2016 . It appears that when originally bailed by Detective Frazer, charges 7 to 15 of the Frazer brief had not come to light. Those charges were electronically filed after the Applicant had already been released on bail.[2]

   [2]Served electronically on the Applicant’s solicitor on 24 July 2016.

1. Police obtained evidence of attempted transactions performed with credit cards stolen from the robbery victim. Some of those transactions can be connected to the Applicant through CCTV footage. The credit cards were found in the console of the stolen green BMW that the Applicant was seen driving prior to his arrest by Detective Frazer.

1. Regarding the most recent arrest, the evidence implicating the Applicant in the aggravated burglary and motor vehicle theft appears convincing. The Applicant’s fingerprints were matched to fingerprints lifted from a side window of the residential premises where the three offenders had broken in. Two of the offenders appeared to be younger, smaller males acting under the direction of the older, taller male who is alleged to be the Applicant. All three young persons appeared to be of African ethnicity. The three offenders remained inside the premises for up to 20 minutes and made demands of the two adults living there for car keys and valuables. One of the smaller youths had hold of a spade. The offenders stole a Nissan Pulsar sedan from the premises as well as items of personal property surrendered to them by the victims. The victims of this offending were afraid for their own safety and that of their young child, who was with them whilst the home invasion was being carried out. Other family members were also present at the house during the incident but were unaware of what was occurring.

1. It is alleged that the stolen Nissan Pulsar was later located on 11 July 2016 in Carlton in the possession of some associates of the Applicant.

1. The Applicant was then arrested and questioned on 14 July 2016. He denied involvement in the aggravated burglary but the presence of incriminatory fingerprint evidence remains unexplained. He was charged on that day and remains in custody.

1. The Applicant is currently on remand at the Parkville Youth Justice Precinct. This is his first time in custody.

1. Evidence was called on the bail application from the Respondent, a Youth justice case worker, Ms Karevski, the Applicant’s brother, [name redacted], and from the Applicant himself.

1. Prior to his arrest, the Applicant was enrolled as a student at [school redacted] in year 11.

1. The Applicant relies on a submission as to strong family support and the option of returning to reside with his mother and siblings. In particular he is very close to his brother, [name redacted], who is studying at university and whom he admires and respects.  The Applicant's brother has agreed to move back home, defer his university course and supervise the Applicant.

1. The Applicant also relies on the prospect of having the support of the Youth Justice Intensive Bail Support Program (‘IBSP’). Diane Karevski, a case manager with Youth Justice, assessed the Applicant on 19 July 2016 for the IBSP.

1. In his favour, the Applicant told Ms Karevski that he wanted to return to school to complete VCE and that he is usually an active participant in basketball and football. He spoke of wanting to get his life ‘back on track’.

1. He denied any problem with substance abuse[3]  and expressed a willingness to comply with the IBSP.

   [3]Detective Ballard testified that there was no evidence of substance abuse by the Applicant.

1. Ms Karevski also interviewed the Applicant’s mother.

1. Whilst the IBSP caseworkers are supportive of supervised bail on the basis of the Applicant's age, lack of prior convictions, family support and period spent on remand, there is a concern as to his previous poor response to the bail conditions imposed by Detective Frazer.

1. The Applicant relies on s 3B(1) of the Act, which sets out the requirement that the Court must take into account:

(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.

1. Mr Smallwood made reference to s 3B(1) of the Act, set out above, which came into effect on 2 May 2016, amplifying his submission by reference to the Attorney-General’s second reading speech for the Bill that became the Act.[4]

   [4]The speech referred to the recent growth in numbers of children held on remand and the need to treat the remanding of children as a last resort.

1. Mr Smallwood also called in aid Bell J’s discussion in Woods v DPP[5]  of the potential vulnerability of children and young persons placed on remand and the risk of disruption to family life and education.

   [5][2014] VSC 1 [95].

1. I have had regard to those considerations as well as the show cause requirement and unacceptable risk criteria.

1. There are overlapping considerations in the determination of  unacceptable risk and as to whether cause has been shown.[6]

   [6]Robinson v The Queen [2015] VSCA 161 [42], [67].

1. Having weighed the arguments for and against bail, I consider that although there is a risk that the Applicant might re-offend, the risk is no longer unacceptable.[7]

   [7]Ibid [49]: It is well established that a risk which might otherwise be unacceptable can be made acceptable by attaching appropriate conditions to the grant of bail.

1. I am persuaded that cause has been shown why bail should be granted. I rely on the following key factors:

(a)   firstly, the Applicant has the support of Youth Justice IBSP which he did not have previously;

(b)   secondly, the Applicant's oldest brother has deferred a university course in biomedicine to return home and monitor, supervise and support the Applicant's rehabilitation. The Applicant's brother gave sworn evidence and impressed me with his commitment and dedication to the Applicant's welfare; and

(c)    thirdly, the Applicant himself gave sworn evidence before me which persuaded me that his period on remand has caused him to reflect on the detrimental effect of his poor associations and poor decision making prior to his recent arrest.

1. Further factors in favour of bail include evidence put forward that the Applicant has been a regular attender at school and has not been troublesome at school.

1. He is also said to be a talented basketballer and football player, playing regularly with local teams.[8]  The Applicant indicated in his evidence that he recognises the serious nature of the charges he faces and that remaining in custody is likely to affect his future educational and sporting prospects.

   [8]Evidence was given by the Applicant that he had recently won recognition awards for his participation in community sporting teams.

1. He admitted that his mother was disappointed in him and that he would need to try harder in future to avoid trouble.

1. He was concerned about his period on remand becoming known at his school and also appeared to acknowledge the potential harm caused to victims by criminal offending.

1. He was worried that the charges might lead his school to not want him back there. He was prepared to acknowledge the adverse impact of certain peer group associations and was prepared to nominate some of those associations with whom he would refrain from associating in the future.

1. In all the circumstances, it does appear to me that the Applicant has had an opportunity to reflect on his poor decision making and is now capable of obeying strict conditions of bail. I propose to impose the conditions of bail that have been suggested by the parties, including a modification that I suggested regarding non-association via mobile telephones and social media.

1. So the conditions will be:

[Conditions redacted]

1. I should indicate to the Applicant that, ultimately, it is because of his young age and in light of the evidence that I have heard, I am persuaded that bail should be granted in this case, but that he should be very well aware that any breach of these conditions is likely to lead very swiftly to return to custody.