Re application for bail by NH
[2018] VSC 118
•19 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0051
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by NH
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2018 |
DATE OF JUDGMENT: | 19 March 2018 |
CASE MAY BE CITED AS: | Re application for bail by NH |
MEDIUM NEUTRAL CITATION: | [2018] VSC 118 |
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CRIMINAL LAW – Application for bail – Children’s Court – Offences involving reckless conduct, stolen goods and committing an indictable offence whilst on bail – Show cause situation – Significant criminal history – Breach of youth supervision orders – Vulnerable in a custodial setting – Whether applicant poses an unacceptable risk – Bail granted with conditions – Bail granted on a provisional two week basis – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Thomson | Victoria Legal Aid |
| For the Respondent | Mr P McKimmie | Victoria Police |
HIS HONOUR:
Introduction
On 1 March 2018, following an incident of reckless driving of a stolen car, the applicant NH was arrested and charged by police with a series of offences involving reckless conduct endangering life; handling/receiving stolen goods; negligently dealing with proceeds of crime; unlicensed driving; and, committing an indictable offence whilst on bail.
The applicant has been in custody since 1 March 2018. He is presently 15 years old, and will turn 16 on 7 May 2018.
By an application dated 5 March 2018 NH applies to this Court for a grant of bail.
Procedural history pertaining to the applicant
On 2 March 2018, the applicant made an application for bail to the Latrobe Valley Children’s Court. The application was refused on the grounds that the applicant failed to show cause why his continued detention was no longer justified, and that there was an unacceptable risk of him committing further offences and endangering the safety and wellbeing of the public. By the time the matter came before me for hearing, the applicant had been in custody for almost two weeks.
At the time of this alleged offending, the applicant was on bail in respect of a violent incident alleged to have occurred on 26 June 2017. He was charged with that offending on 7 December 2017 and bailed by police. The applicant also has two other outstanding charges by way of summons, arising out of an alleged unlawful assault incident which occurred on 20 October 2017, and a property damage incident which occurred on 10 November 2017.
Additionally, at the time of the alleged offending, the applicant was the subject of two Youth Supervision Orders imposed on 10 October 2017 and 19 December 2017, for two different sets of offending.
The charges before this Court, and all other charges the applicant faces, are listed for a contest mention on 23 March 2018. Beyond that date it is difficult to be sure about when the various sets of alleged offending will be finally resolved.
The law that applies in this case
Section 4(1) of the Bail Act 1977 (‘the Act’) provides for the presumption of bail. However, notwithstanding the generality of that presumption, a court shall refuse bail in certain circumstances. Section 4(4)(a) of the Act relevantly provides for the refusal of bail to occur where the accused is charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence.
In these circumstances ‘the court shall refuse bail unless the accused shows cause why his detention in custody is not justified’.[1] However, pursuant to s 4(2)(d) the court shall refuse bail if satisfied that that there is an unacceptable risk that the accused if released on bail would:
·fail to surrender himself into custody in answer to his bail;
·commit an offence whilst on bail;
·endanger the safety or welfare of members of the public; or
·interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
[1]Bail Act 1977 s 4(4).
I also note the effect of the matters set out in s 4(3)(a)-(f) of the Act when assessing unacceptable risk factors.
Given that the applicant is a child, the Court is also required to take into account the matters listed in s 3B(1) of the Act, which provides:
3B Determination in relation to a child
(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.
Charges before the Court
The ‘Fisher’ matters
It is alleged that on Thursday 1 March 2018, the applicant was given a Nissan utility motor vehicle by an associate who told him that it had been stolen. Police who were investigating an unrelated matter observed the Nissan utility being driven with no registration plates attached and attempted to intercept the vehicle. It failed to stop and drove off at a fast rate of speed. After a short chase, during which the vehicle crossed an intersection without stopping, the vehicle stopped suddenly and the three occupants jumped out of the vehicle and fled. They were subsequently arrested by police nearby. It is alleged that the applicant had been driving the vehicle with two passengers inside.
The charge of recklessly engaging in conduct endangering life relates to driving the motor vehicle across an intersection without stopping, and the charge of unlicensed driving relates to his driving of the vehicle without being the holder of a permit. The charge of handling stolen goods and dealing with proceeds of crime relate to the applicant’s alleged use of the Nissan motor vehicle knowing that it was stolen. Finally, it is alleged that the charges of handling stolen goods, dealing with the proceeds of crime and conduct endangering life are indictable offences. As observed, these latter offences are alleged to have been committed when the applicant was on bail for other matters.
When interviewed by police, the applicant admitted to being the driver of the vehicle at the time of the incidents alleged.
Other charges faced by the applicant
At the time the events before this Court were alleged to have been committed the applicant was already facing further charges. I will outline these matters below.
The ‘Schueddekopf’ matters
The applicant faces charges that on 26 June 2017 he committed the following offences:
· assault with a weapon;
· unlawful assault;
· making a threat to kill;
· possession of a controlled weapon without excuse;
· threatening to inflict serious injury; and,
· theft of a mobile telephone.
It is alleged that the victim went to the applicant’s mother’s house to try and retrieve a mobile phone that was alleged to have been stolen from his son by the applicant. It is alleged that the applicant displayed a knife to his victim and lunged at him in an attempt to stab him.
The ‘Straughair’ matters
The applicant faces a charge that on 10 November 2017 he committed an offence of criminal damage.
On 10 November 2017 it is alleged the applicant approached an auto car wash pay-terminal in an attempt to extract loose change from the terminal. When he was unsuccessful after pushing buttons he attempted to break into the terminal by kicking it and trying to physically force open a compartment door. Having been unsuccessful in forcing the terminal open, he kicked it and damaged the front panel.
This matter is proceeding on summons.
The ‘Gardner’ matters:
The applicant faces a charge that on 20 October 2017 he committed:
· theft of the victim’s mail;
· unlawful assault.
It is alleged that the applicant struck his victim to the right side of his head. The victim went outside from his house and confronted the applicant and his friends when he saw them attempting to steal mail from his letter box.
This matter is proceeding on summons.
Applicant’s personal background
The applicant is 15 years of age. He has been diagnosed with a mild intellectual disability (full-scale IQ of 58) and has significant attentional and executive deficits. In a report dated 28 March 2016, a clinical neuropsychologist, Dr Yasmin Baliz, expressed the opinion that the applicant’s IQ score at the age of 13 years and 7 months was ‘well below the threshold for diagnosis of an intellectual disability’.[2]
[2]Report of Dr Yasmin Baliz, 28 March 2016, p 3.
The applicant has experienced a severely deprived and traumatic upbringing. He was exposed to his mother’s smoking and amphetamine use while in-utero. His father has a significant criminal history and has spent long periods of time in custody.
Prior to the applicant’s incarceration, he was residing under the guardianship of the Department of Health and Human Services (‘DHHS’).
The applicant was first subject to the involvement of DHHS in 2007 due to concerns of neglect, exposure to family violence, substance abuse and inappropriate discipline. He has reportedly struggled with his DHHS residential care placement and has spent considerable time away from the placement. However, whilst in DHHS care he has had regular contact with his family and has expressed a desire to return to them.
The applicant has a history of substance abuse including marijuana and the use of aerosols. On 2 June 2015, he suffered a cardiac arrest following an episode of chroming. Following the cardiac arrest, he was assessed by Dr Linda Gonzalez, a clinical neuropsychologist, who expressed the opinion that the applicant suffers from a mild intellectual disability, significant attentional and executive deficits and significant learning difficulties involving numeracy, written expression and reading.[3] In her report dated 15 October 2015, Dr Gonzalez described the applicant’s psycho-social situation as ‘very complex’.
[3]Report of Dr Linda Gonzalez, 15 October 2015, p 1.
Applicant’s prior criminal history
At the age of 15, the applicant has already been involved in significant offending which has resulted in a number of court outcomes. He has previously been found guilty of eight counts of theft, three counts of property damage, one of robbery, burglary and reckless conduct endangering life, committing offences on bail, contravening a condition of bail and some traffic offences.
Summarised, the prior matters are:
Date Court Outcome 19/12/2017 Latrobe Valley Children’s Court
Theft; wilfully damaging property; committing an indictable offence on bail; intentionally damaging propertyWithout conviction released on a Youth Supervision Order for 6 months 10/10/2017 Latrobe Valley Children’s Court
Robbery and theftWithout conviction, released on a Youth Supervision Order for 12 months 23/5/2017 Shop theft Without conviction, probation for 3 months 26/7/2016 Theft of a motor vehicle; theft; failure to stop vehicle on a police direction; theft from shop; unlawful assault; reckless conduct endangering life With conviction released on a Youth Supervision order for 12 months 31/5/2016 Theft; contravening a conduct condition of bail Without conviction, probation for 5 months 19/4/2016 Criminal damage Without conviction probation for 12 months 23/2/2016 Entering with intent to steal; damaging property, burglary Without conviction, probation for 6 months. Applicant’s contentions
In an affidavit dated 5 March 2018, and sworn by the applicant’s solicitor in support of a grant of bail, it is submitted that the following matters are established by the evidence and are sufficient to show cause why the applicant should be granted bail:
(a) The complex needs of the applicant due to his age and mental issues. As well as being young at 15 years of age, the applicant is intellectually disabled with a full-scale IQ of 58, and likely has other mental health issues.
(b) The applicant’s limited experience in custody. Despite his criminal history, the applicant has only spent short periods of time in police custody to this point.
(c) Availability of Youth Justice support. The applicant is currently subject to two Youth Supervision Orders which are due to expire on 18 June 2018 and 9 October 2018 respectively. His Youth Justice case manager, Ms Erin McGarva, has reported that the applicant’s compliance with these has been variable, but DHHS remains committed to working with the applicant if he is released. The applicant has been assessed as suitable for Youth Justice supervised bail. Ms McGarva provided a report dated 13 March 2018 and gave viva voce evidence before me. She informed me that the applicant has been assessed as suitable for supervised bail, also noting that he will be subject to ongoing Youth Justice involvement and supervision until 9 October 2018. Ms McGarva noted his young age, that this last two weeks has been his first time in custody, his intellectual disability, and his behaviours in custody. I was informed that during the period of his remand in custody the applicant has been targeted by other young people due to his small physical stature, thus demonstrating his vulnerability in a custodial environment.
(d) Delay. All charges faced by the applicant, including those before the Court and the further charges outlined in [15]-[23] above, are set down for contest mention in the Latrobe Valley Children’s Court on 23 March 2018. However, it is uncertain what the outcome of the mention will be and whether any delays may arise.
Prosecution’s contentions
The prosecution opposes bail, submitting that the applicant has not shown cause why his detention is not justified. Moreover, the prosecution contends that there would be an unacceptable risk that the applicant, if released on bail, would commit further offences whilst on bail; and endanger the safety and welfare of members of the public.
So far as the issue of unacceptable risk is concerned, the focus of the prosecution’s affidavit in opposition to bail was on the following matters:
(a) The applicant’s admitted drug use and poor history of compliance with bail and other court orders. The applicant has a prior finding of guilt for contravening a conduct-condition of bail (31 May 2016), and committing an indictable offence whilst on bail (19 December 2017). Additionally, the charges for which he seeks bail, as well as his other outstanding charges, are for offending alleged to have occurred while on bail and in breach of two Youth Supervision Orders. The prosecution note that the applicant has previously had three probation orders imposed on 23 February 2016, 19 April 2016, and 31 May 2016 respectively.
(b) A history of criminal offending that endangers the safety and wellbeing of the public. The informant Fisher has expressed concern in relation to the applicant’s driving, and on reasonable grounds believes that the applicant has taken drugs and driven motor vehicles under the influence of a drug of dependence. The applicant also has prior findings of guilt for robbery and reckless conduct endangering life. Additionally, the informant states that the applicant has been warned by police in relation to carrying knives and using a knife to threaten a person.
(c) The applicant’s attitude to his alleged offending. The informant Fisher alleges that when the applicant was arrested he showed no remorse for his offending. Rather, he appeared proud. It is the informant’s belief that the applicant will continue to offend, as he has not learned the consequences of his offending. When questioned by police over the source of his cannabis, the applicant stated that he would not assist police.
(d) The applicant’s extensive criminal history. Although the applicant is only 15 years old, he has been charged over 50 times with a wide variety of offences.
(e) The applicant’s tendency to abscond from his DHHS care. The applicant has been reported missing 50 times since 2013 due to absconding from his DHHS care.
The prosecution referred me to s 4(3) of the Act which sets out matters the Court shall have regard to when making an assessment of whether there is an unacceptable risk posed by the applicant pursuant to s 4(2)(d) of the Act. In particular I was asked to give consideration to the nature and seriousness of the offending which involved driving a vehicle through an intersection in a manner that would endanger the lives of others; the character and antecedents of the applicant; and the strength of the case alleged against the applicant.
Discussion
In deciding this application for bail I have remained mindful of all the relevant considerations brought to my attention. In particular there is a fundamental requirement for the applicant to show cause why he should not remain in custody.
The applicant is 15 years old. In those circumstances, s 3B of the Act requires me to also give consideration to all options other than remanding him in a custodial setting. Given the evidence and submissions I have heard, I am not satisfied that all other options have been exhausted.
In my opinion, the applicant has shown cause why his detention should not continue.
The Youth Justice report of 13 March 2018 assessed the applicant as suitable for supervised bail. The applicant has the support of Youth Justice, and he has a place available in residential care provided by Berry Street, in Morwell. He is supported by DHHS, and efforts are being made to find educational opportunities suitable for his particular needs with which he can engage.
Thus there are a number of identified areas of support, including the commitment of Youth Justice to continue to work with him; family support services through the continued support of Child Protection Services and Disability Client Services; Intensive Case Management Services in respect of his placement in residential care; and the prospect of vocational and educational opportunities.
Having been in a custodial setting since 1 March 2018, the applicant has now had his first experience in custody and reports that this was an experience that was difficult. There are suggestions he was exposed to a degree of violence. I note that the applicant is of slight physical size stature, and is quite youthful in appearance. These characteristics require particular consideration given the evidence before me that he has a mild intellectual disability, and has an IQ of 58. In my opinion, he should be regarded as vulnerable in a custodial setting.
The delay in bringing the matters to a conclusion is of some concern. Whilst there is a contest mention before the Latrobe Children’s Court listed for 23 March 2018, there is an indication that some of the matters are likely to be contested which will cause a further delay that I regard as significant. There is as yet no degree of comfort as to when all the charges the applicant faces will be brought to final resolution.
With respect to the charges brought by the informant Fisher, there was a fair concession that if the matters are brought to a point where a sentence is to be passed that the eventual outcome might not result in a custodial sentence being passed at all. This was a fair and appropriate concession to be made on the part of the prosecution. Having made this observation, it is to be acknowledged that there are matters to be dealt with other than the Fisher matters, but as I have observed, there is no clear indication as to when they will be resolved.
Accordingly I have concluded that the applicant has shown cause why his detention is no longer justified, and I am not satisfied that the prosecution has established that unacceptable risk factors exist to the point where I should refuse a grant of bail.
I propose to grant bail on the applicant’s own undertaking. However, I am of the view that there should be strong conditions attached to the grant of bail. Over the past 12 months the applicant has failed to adhere to the conditions of a previous grant of bail, and appears also to have breached various pre-existing orders of youth supervision. In my opinion, rigorous conditions should be imposed to reduce the risk of further offending and further breaches of those existing supervision orders. Furthermore, I will order that as a part of the conditions of bail the applicant return before me after the contest mention occurs in the Latrobe Children’s Court in order for me to make a better assessment of when the various charges against the applicant are likely to be resolved, and how the applicant has managed the grant of bail and its conditions over that period.
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