Re application for bail by Murray
[2023] VSC 266
•19 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0087
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by MURRAY | Applicant |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2023 |
DATE OF ORDER: | 17 May 2023 |
DATE OF REASONS | 19 May 2023 |
CASE MAY BE CITED AS: | Re application for bail by Murray |
MEDIUM NEUTRAL CITATION: | [2023] VSC 266 |
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CRIMINAL LAW – Application for bail – Whether exceptional circumstances justify the grant of bail – Whether grant of bail would give rise to unacceptable risk – Real risk time on remand longer than any sentence imposed – Supports will provide some protection against further offending – Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Kats | Victorian Aboriginal Legal Service |
| For the Respondent | Mr G Carr (solicitor) | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
On 17 May 2023, at the conclusion of the hearing I granted the applicant bail on strict conditions. These are my reasons for making that order.
Mr Murray (‘the applicant’) is an 18 year old Aboriginal man. He seeks bail on 52 charges, filed by Detective Senior Constable Rhys Phillips on 25 April 2023:
(a) Contravene family violence interim intervention order (14 charges);
(b) Contravene bail conduct conditions (six charges);
(c) Persistent contravention of family violence intervention order (eight charges);
(d) Commit an indictable offence whilst on bail (10 charges);
(e) Contravene family violence final intervention order (12 charges);
(f) Aggravated burglary;
(g) Theft.
The applicant has remained in custody since his arrest on 25 April 2023.
On 28 April 2023, the applicant was refused bail at the Heidelberg Magistrates’ Court on the basis that he failed to show exceptional circumstances, and that there was an unacceptable risk that he would commit an offence whilst on bail, endanger the safety or welfare of any person and interfere with a witness or otherwise obstruct the course of justice in any matter.
At the time of the alleged offending in the informant Phillips matter, the applicant was subject to bail in the following seven matters. Bail in respect of those matters has not been revoked. I have had regard to those matters, but the central issue is whether the applicant should be granted bail on the Phillips matters.
Informant Senior Constable Nathan Haymes
(a) Armed robbery (two charges);
(b) Assault (two charges).
Informant Detective Senior Constable Christopher Hammond
(a) Theft of motor vehicle;
(b) Commit indictable offence whilst on bail;
(c) Contravene bail conduct conditions.
Informant Senior Constable Matthew Waterson
(a) Contravene family violence interim intervention order.
Informant Senior Constable Jessie Coletti
(a) Contravene bail conduct conditions (six charges). These charges have been withdrawn.
Informant Constable Nicola Koliavu
(a) Contravene family violence interim intervention order;
(b) Contravene bail conduct conditions.
Informant Senior Constable Georgina Taylor
(a) Theft of motor vehicle;
(b) Handle/receive/retain stolen goods;
(c) Dangerous driving while pursued by police;
(d) Failure to stop vehicle on police request;
(e) Driving whilst disqualified;
(f) Commit an indictable offence whilst on bail;
(g) Contravene bail conduct conditions.
Informant Senior Constable Georgina Taylor
(a) Contravene bail conduct conditions.
The applicant’s matters are next listed on:
(a) 24 May 2023 at the Heidelberg Magistrates’ Court for mention (informant Phillips remand matter) and Broadmeadows Magistrates’ Court for mention (informant Haymes summons matter);
(b) 26 May 2023 at Broadmeadows Magistrates’ Court for contest mention (informant Hammond and Waterson bail matters), mention (Koliavu bail matters), and family violence court (informant Whyte summons matter); and
(c) 29 May 2023 at Heidelberg Magistrates’ Court for contest mention and mention respectively (the two informant Taylor bail matters).
Family violence intervention orders in force
The applicant is subject to two family violence intervention orders (‘FVIO’), which protect two complainants:
(a) A, who is 16 years old and has had an on and off relationship with the applicant for over 12 months; and
(b) B, who is 15 years old and was previously in a relationship with the applicant.
On 2 May 2023, a final FVIO with full no-contact conditions was made in the Sunshine Children’s Court protecting A. That order expires on 1 May 2024. Prior to this order being in place, the applicant was subject to interim FVIOs protecting A.
On 30 November 2022, a final FVIO with full no-contact conditions was made in the Heidelberg Magistrates’ Court protecting B. That order expires on 30 November 2023. Prior to this order being in place, the applicant was subject to an interim FVIO protecting B.
The alleged offending
Informant Phillips matter (remand)
Contravene FVIO and bail conditions (25 January – 12 April 2023)
On 25 January 2023, the applicant and A were seen walking though Preston Market together. Both the applicant and A appeared distressed. The associates approached A to check if she was okay, however she yelled at them and walked away. The applicant then yelled ‘I’m going to kill myself’, and left in the direction of Mary Street. A followed the applicant, jumped on him, and screamed at him. Police were called, following which A and the applicant ran away. CCTV subsequently obtained by police depicts the applicant and A walking together.
On 1 March 2023, A made a Facebook post which included a photo of herself and the applicant, and a caption stating that they would be together forever. Between 1 and 6 March 2023, the applicant allegedly ‘heart reacted’ to the post.
On 17 April 2023, police obtained the applicant’s phone records. These records allegedly show that, between 1 March and 12 April 2023, the applicant:
(a) made 458 calls to A;
(b) received 208 calls from A;
(c) made 47 calls to B; and
(d) received 35 calls from B.
Aggravated burglary and theft (24 April 2023)
On 24 April 2023, the applicant allegedly entered the garage of a residential address in Kingsbury via an open garage door, opened an unlocked Porsche parked inside, and stole $50 cash from the passenger seat. The incident was captured on CCTV. The applicant was arrested on the following day.
Arrest
Informant Haymes matter (bail)
At 4:03 pm on 14 October 2022, the applicant, along with co-accused B and Nioka Hayes, attended a bus stop near Reservoir Station. The co-accused began verbally abusing and physically assaulting 14 year old complainants, Kayla Stuart and Neisha Gastev-Hebaiter, who were waiting at the bus stop.
Hayes allegedly punched Stuart to the ear, causing her to fall backwards against a pillar. B then grabbed Stuart by the hair and punched her 13 times to the face. Hayes grabbed Gastev-Hebaiter by the hair and pulled her the ground.
The applicant and co-accused then surrounded Stuart. The co-accused allegedly stole her jewellery, handbag and bank card, and demanded that she reset her iPhone. When Stuart said that she was unable to, both co-accused pulled out knives and approached Gastev-Hebaiter. As they did so, the applicant stood over Stuart and took her phone. He subsequently gave the phone to B.
B held her knife towards Gastev-Hebaiter’s stomach, pushed her up against a pillar, slapped her face, and then held the knife towards Gastev-Hebaiter’s throat. The co-accused demanded that Gastev-Hebaiter reset her iPhone and hand it over, which she did.
The accused then walked away towards Broadway Clothing Superstore, where they attempted to make a transaction valued at $70 using Stuart’s stolen bank card.
The incident was captured on CCTV at the bus stop and outside Broadway Clothing Superstore.
On 8 November 2022, police attended the applicant’s foster grandparents’ address in Craigieburn and arrested the applicant. During interview, the applicant admitted that he was present during the alleged offending, that he saw B and Hayes’ knives, that he overheard them making threats, and that he took Stuart’s phone. However, he stated that he only took Stuart’s phone to stop B from stabbing her.
The applicant has been separately charged for being in the presence of B on 14 October 2022 (during the alleged aggravated robbery), in breach of an interim FVIO protecting her.
Informant Hammond matter (bail)
In the early hours of 12 November 2022, the applicant and an unidentified person allegedly attempted to enter a residential address in Strathmore by tampering with the front gates. They then moved to a neighbouring residence, where they found a front door key under a pot plant and allegedly entered the residence — which was occupied at the time — searched the address, located car keys, and then stole a car belonging to the occupant of the house.
On 16 November 2022, police located the stolen car in Reservoir, with false number plates attached. Fingerprints located inside the car allegedly match the applicant’s.
The applicant was interviewed on 2 December 2022 and made no comment.
Informant Whyte matter (summons)
On 17 November 2022, police entered a residence in Preston for an unrelated matter. The applicant was located inside with A, in breach of an interim FVIO protecting her.
Informant Waterson matter (bail)
On 2 December 2022, police attended the applicant’s father’s address in Preston in an attempt to locate B, who had been reported missing. The applicant was at the address with B, in breach of an interim FVIO made on 5 October 2022 in the Heidelberg Magistrates’ Court protecting her.
Informant Koliavu matter (bail)
On 27 December 2022, police attended a hotel in Parkville in an attempt to locate A, who had been reported missing. The applicant had booked a room at the hotel under his name. Police knocked on the door but received no answer. Police subsequently entered the room and located the applicant in bed and A hiding behind a curtain.
First informant Taylor matter (bail)
At 11:50 pm on 2 February 2023, police observed a person, alleged to be the applicant, driving a stolen car in Reservoir. The car had been stolen in Traralgon the night prior.
Upon police activating their lights, the applicant allegedly increased his speed, driving at 90km/h within 60km/h and 40km/h zones. Police lost observations of the car shortly after. The applicant was disqualified at the time of the alleged offending, by order made in the Broadmeadows Children’s Court.
Second informant Taylor matter (bail)
On 28 March 2023, the applicant allegedly left Birribi Residential Rehabilitation Centre in breach of residential and curfew bail conditions.
During interview, the applicant stated that:
(a) he left the rehabilitation facility as he ‘couldn't deal with it anymore’;
(b) he was living with his father at 107/137 High St, Preston;
(c) he was going to Heidelberg Magistrates’ Court with his Victorian Aboriginal Child Care Agency (‘VACCA’) worker on 3 April 2023 to vary his bail conditions, to live at his father’s address.
The applicable legislation
In making a determination in relation to an Aboriginal person under the Bail Act 1977 (‘the Act’), the Court is required by s 3A of the Act to take into account any issues that arise due to that person’s Aboriginality, including—
(a) their cultural background, including ties to extended family or place; and
(b) any other relevant cultural issue or obligation.
In discussing these provisions in the case of HA (a pseudonym) v The Queen,[1] the Court of Appeal held:
Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[2]
[1][2021] VSCA 64 (‘HA’).
[2]Ibid [58]–[59] (Maxwell P and Kaye JA) (citations omitted).
Because the applicant is charged with Schedule 2 offences under the Act, which are alleged to have been committed while he was on bail for other Schedule 2 offences, bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[3] In considering whether the applicant has satisfied this test, the Court must have regard to the surrounding circumstances, including those relevant under s 3AAA(1).[4]
[3]The Act, ss 4AA(2)(c)(i) and 4A(1)–(2).
[4]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that risk is unacceptable.[5] In determining this, the Court must have regard to the surrounding circumstances and whether there are any bail conditions that may be imposed to mitigate the risk so that it is not unacceptable.[6]
[5]Ibid ss 4E(1)–(2).
[6]Ibid s 4E(3).
Finally, s 5AAAA of the Act provides that, in considering the release of the applicant on bail, the court must:
(a) make inquiries of the prosecutor as to whether there is in force a FVIO, family violence safety notice or recognised domestic violence order made or issued against the applicant; and
(b) in circumstances where the applicant is charged with family violence offences, consider whether — if the applicant were released on bail — there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.
The applicant’s personal circumstances
The applicant is 18 years old and a Gurnai Kurnai man. He states that he is very connected to his culture.
From infancy, the applicant was exposed to family violence, homelessness, neglect and parental substance misuse. Child Protection have been involved in his care since he was 12 months old, and he had over 15 placement changes during his childhood.
When the applicant was two years old, his mother passed away from pneumonia leaving him destitute.
The applicant has a number of mental health issues and had been diagnosed with oppositional defiant disorder, conduct disorder and intermittent explosive disorder, with conforming (compulsive) personality traits with unruly (antisocial) and egotistic (narcissistic) features. Clinical psychologist Gina Cidoni opines that these syndromes are longstanding and a product of the applicant’s childhood trauma, but that the outcomes can be modified with appropriate therapy, support and guidance as well as the natural maturing process and life stability.
The applicant has admitted to frequent alcohol and drug use, for which he has previously sought formal support. He reports having used cannabis from the age of 10.
Criminal history
The applicant has a limited criminal history, comprised of the following dispositions in the Children’s Court:
(a) on 30 August 2022, the applicant was sentenced by Broadmeadows Children’s Court to a six-month probation order for offences of attempted theft from a motor vehicle, negligently dealing with proceeds of crime, theft of a motor vehicle (two charges), commit indictable offence whilst on bail, obtain property by deception, home invasion, unlicensed driving, failing to comply with COVID-19 directions, trespassing, attempted theft of a motor vehicle (two charges), dangerous driving, and possessing cannabis.
(b) on 2 May 2023, the applicant was sentenced by Broadmeadows Children’s Court to a 12-month good behaviour bond for recklessly cause injury and contravening a FVIO (intending to cause harm or fear), relating to offences against A (one of the complainants in the remand matters). In addition, the court found that the applicant had breached the probation order imposed on 30 August 2022. The probation order was confirmed for a further period of six months, from 27 February 2023.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
The applicant concedes that any breach of an intervention order is a serious offence, however, submits that the alleged offending — which relates predominantly to phone contact with the two complainants, A and B — are less serious examples of the offence, and did not involve the commission of violence or abusive communications.
The applicant was arrested on 25 April 2023. At the time of the bail hearing, he had been remanded for 22 days. He has also spent two periods on remand for some of the other matters for which he is now on bail, including one period of remand on charges that have now been withdrawn. The applicant states that several of the charges will be contested and there is a significant amount of disclosure material, such as CCTV and phone records, to be reviewed.
The applicant submits he is unlikely to be sentenced to a longer custodial sentence than the time he has spent in custody. The applicant acknowledges his prior criminal history, but highlights that it is limited, and that his previous dispositions have been in the Children’s Court and involved non-custodial dispositions.
The applicant concedes that some risk exists of him committing an offence whilst on bail given his bail compliance history but this is not an unacceptable risk, and that the question of unacceptability must be viewed in light of all of the surrounding circumstances.[7] The applicant highlights his multiple vulnerabilities, including arising from his youth, Aboriginality, traumatic childhood and mental health issues. He submits that incarceration and isolation are felt at the highest degree for an Aboriginal prisoner who is connected to their culture, such as himself.
[7]HA [2021] VSCA 64, [54] (Maxwell P and Kaye JA).
Family support and stable accommodation
The applicant was living with his father immediately before being remanded on 25 April 2023.
He submits that he has a safe residence with his foster grandparents, Ian and Alice Forsyth, with whom he has lived since he was five years of age and with whom a permanent care order was made on 23 February 2015.
Both Mr and Mrs Forsyth gave evidence on the application. They each impressed me as caring, hardworking and thoughtful people who have the best interests of the applicant at heart. They are around 70 years of age and work in their own business which they have done for many years. Both of them said that when the applicant is affected by drugs he is difficult to manage and support and that this has been challenging. At the time of the bail application in the Magistrates’ Court they had come to the conclusion that they could no longer have him at their house. Mr Forsyth explained that it was time for the applicant to take responsibility.
However, given the applicant has had some time for reflection in custody, Mr and Mrs Forsyth have agreed to have the applicant live with them. Both Mr and Mrs Forsyth described the applicant as a good person who was polite and well behaved but as Mr Forsyth explained ‘he has been off the rails and, um, but most times he knows where the boundaries are and he’s pretty good’. They have no illusions about the difficulties and risks that the applicant faces and they continue to support him. Although there is some evidence of disharmony between the applicant and Mr Forsyth in the past, Mr Forsyth and Mrs Forsyth said that they generally got on well.
Mr Forsyth said that a key to the applicant’s future was employment, and he has arranged for a job for the applicant should he be released on bail.
Both Mr and Mrs Forsyth said that they would not tolerate any breaches of bail conditions and would report the applicant if he was in breach.
Mrs Forsyth is a proud Gunditjmara woman and spoke of her continuing work to connect the applicant to his Aboriginal culture. She has encouraged him to connect to his Gurnkurnai culture and community, and says that the applicant is interested and engaged to do so.
Availability of treatment or bail support services
In the event that bail is granted, the applicant has significant supports available to him in the community, including:
(a) VACCA — the applicant is supported by VACCA through the Better Futures program, which provides assistance for young people up to the age of 21 with independent living. The applicant has also been a voluntary participant in the Koori Men’s Diversion Program run by VACCA, which aims to reduce the factors that lead to re-offending, including addressing drug and alcohol issues.
(b) VincentCare — the applicant is supported by the Young Adult Support Services, which have been assisting the applicant to plan short, medium and long term accommodation options. The service also supports the applicant with mental health, drug and alcohol counselling and employment opportunities.
(c) Victorian Aboriginal Legal Service (‘VALS’) — the applicant has been referred to the Balit Ngulu Program, a specialised youth program which aims to strengthen his community connections, create a plan to divert him away from the justice system and assist him in accessing further services.
(d) Wadamda Prison to Work Program — if released on bail, the applicant will be supported by Brady Jones, an Aboriginal Employment Broker, to find an apprenticeship or traineeship in the construction industry. This program will assist the applicant to become job ready by identifying training and requirements for him to enter the construction industry. I have already noted that Mr Forsyth has also arranged employment opportunities for the applicant. In his oral evidence, Mr Jones said that he can assist in the placement and training for such a role.
(e) Youth Support & Advocacy Service (‘YSAS’) — YSAS have previously supported the applicant to address drug related harm. The applicant recently completed a 14 day detox program from 7 to 20 March 2023 at the Geelong Residential Withdrawal Unit, and participated well in all programs offered by YSAS. The service remains open to the applicant, should he require further support.
Larry Stanton, who works at VACCA as the Koori Men’s Diversion Program Case Manager, gave evidence on the application. He gave evidence about the applicant’s involvement in detox or rehabilitation services, including the applicant leaving Birribi Residential Rehabilitation Centre early on his own accord. Mr Stanton suggested the applicant left due to boredom.
Mr Stanton says the applicant has agreed to participate in programs at Dardi Munwurro. Mr Stanton believes the men’s behaviour change program at Dardi Munwurro is more suitable for the applicant than the youth program as it will surround the applicant with potential role models or mentors. Dardi Munwurro has also indicated they are willing to combine their men’s and youth programs to suit the applicant. Mr Stanton also says the applicant has agreed to undergo a mental health assessment, and has expressed a willingness to stay clean from drugs.
The applicant has also expressed a desire to see his father. Mr Stanton says that despite the applicant’s father having his own criminal history, he believes he is an important part of the applicant’s life and the interactions he has seen between them have been positive.
Mr Stanton expressed a willingness to drive the applicant to and from appointments.
Kara Varker, who works at VACCA in the Better Futures program as team leader, also gave evidence on the application. She says the applicant experienced considerable crisis when he turned 18, made more difficult by certain services ceasing at this point. However, she says the applicant is now able to vocalise that he wants support, which is a significant positive change. She believes the applicant needs flexible levels of support.
Ms Varker says the applicant has indicated to her that he wants to work and that if he’s working he’s not going to get up to trouble. He has also indicated he wants mental health support, which would involve him getting a mental health care plan through a general practitioner and seeing either a counsellor or a psychologist.
Unacceptable risk
Having regard to these supports, the applicant submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail, and that the applicant is an unacceptable risk of endangering the safety or welfare of any person; committing an offence whilst on bail; interfering with witnesses or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
In response to the applicant’s contention that the intervention order breaches can be differentiated from more serious breaches which involve violence or abusive communication, the respondent contends that it is important to consider additional factors which may impact the severity of the breaches.
The respondent submits that, although the charges for which the applicant is presently remanded only involve one proximity related FVIO breach (relating to contact with A), it is believed that the pair have regular face to face contact. The respondent further submits that the regular phone contact between the applicant and the complainants (A and B) leads to face-to-face contact, which in turn increases the risk of potential harm to the complainants.
The respondent submits that the applicant has a relevant criminal history, which includes family violence offences.
The respondent highlights that the applicant is presently charged with committing indictable offences whilst on bail in seven matters, and that he has previously been found guilty of committing an indictable offence whilst on bail.
The respondent submits that the applicant has demonstrated no regard for the conditions of either of the FVIOs, and has similarly ignored bail conditions imposed by the courts requiring compliance with the FVIOs.
The respondent has concerns about the suitability of the proposed bail address, noting that the applicant’s foster grandparents are vulnerable and that Mr Forsyth’s 97 year old mother is also currently residing at the proposed address.
The respondent states that the applicant has been recorded as the respondent in six family violence incidents involving his foster grandparents, between 8 March 2019 and 16 June 2021.
The respondent submits that, while the applicant completed a 14 day detox program in March 2023, he failed to complete the subsequent rehabilitation program. The respondent submits this raises concerns as to the applicant repeating similar patterns.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent highlights that the applicant has been charged with persistently breaching FVIOs protecting A and B.
The respondent holds particular concern for the safety and welfare of A and B, given their youth and vulnerabilities.
The respondent also holds concerns for the safety of the wider community, noting that the applicant is alleged to have engaged in high risk behaviour, such as driving at high speed to avoid police and committing an aggravated burglary whilst on bail.
The respondent reiterates that the applicant has been charged with multiple offences whilst being on bail, and has a relevant criminal history for committing indictable offences whilst on bail.
The respondent has concerns that the applicant will continue to interfere with A and B if he were released on bail, noting that he is charged with multiple breaches of FVIOs and bail conditions.
Decision
I am satisfied that exceptional circumstances exist. There is a real risk that the time on remand would be longer than any sentence that might be imposed in the event that the applicant is convicted of the Phillips offences. That remains the case even if the charges were resolved to a plea hearing which might be accommodated in June or July this year. He is a young man, and although there are a disturbing number of charges, he has relatively modest criminal history in the Children’s Court.
Given his age, rehabilitation would be a paramount consideration in any sentencing also reducing the potential for a further period of incarceration. I also take into account that incarceration risks further alienating the applicant from his culture and from the positive supports that are presently available. I take s 3A of the Act into account in reaching this finding.
The combination of factors relied on by the applicant are exceptional.
I turn then to whether a grant of bail would give rise to unacceptable risk of endangering the safety or welfare of any person, committing an offence on bail or interfering with a witness. There has been no established history of failing to answer bail and I do not think that there is an unacceptable risk in that respect.
The large numbers of alleged contraventions of the intervention orders is concerning. It is relevant to note that the contact has mainly been via text or messaging, has been reciprocated and the single physical contact allegation did not involve any violent or threatening conduct on the part of the applicant. Of course, the order is in place to protect A, and she is under 18 and in need of care and protection and the fact that she has initiated contact does not excuse the breach. There remains a risk of future contraventions, however the very strong prospect of this leading to a revocation of bail and a return to custody provides an important incentive to avoid further offending of this kind. The applicant has reported that he wants no further contact with A.
Plainly substance abuse has been a problem for the applicant and time on bail will provide some chance for the applicant to show that he can address some of his concerning behaviour and, if he can, that would be a powerful factor should he fall to be sentenced on any of the charges in the event of a finding of guilt. The respondent raised the question whether bail should only be granted to a residential rehabilitation program. The evidence does not suggest that a residential rehabilitation program is necessary or required as a condition of bail at this point.
I am satisfied that the supports that are in place, which include a detailed plan in the event of release, will provide some protection against further offending while the applicant is on bail. As both Mr Forsyth and Ms Varker said in their evidence, these supports will only be effective if the applicant engages with them and takes responsibility for his actions. Ms Varker explained that when the applicant turned 18 there was a change in the available supports and that this coincided with an increase in offending behaviour and association with antisocial peers. Ms Varker explained that the care team that is now in place will provide more coordinated support.
I am unable to be satisfied that a release on bail presents no risk of offending. However, I am comfortably satisfied that it is not an unacceptable risk, that the risks are being managed by supports including most importantly a stable residence at Mr and Mrs Forsyth’s home. There are considerable resources being expended to support the applicant, however they are likely to be a small proportion of the costs, both in terms of resources and the negative impacts on the applicant, that continued incarceration would entail. I am satisfied that a grant of bail is appropriate.
I am conscious that the applicant remains at a very formative stage of his life. Incarceration will not assist him. His history has been blighted by misfortune and intergenerational deprivation. There have been and continue to be supports in place including those directed to encouraging and supporting the applicant in maintaining his cultural heritage. I regard these factors as important in deciding this application. The applicant’s wrongdoing is not habitual, and the evidence shows him in many ways to be a caring and respectful person though liable to making wrong decisions which has led him to engage in antisocial and unlawful behaviour. While there remains supports in place and he is willing to take responsibility for himself an order remanding him in custody is not necessary and, in light of my findings, not authorised under the Act.
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