Re application for bail by Pi
[2023] VSC 481
•14 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0172
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by PI[1] | Applicant |
[1]As the applicant is under 18, a pseudonym is used in place of the name of the applicant in light of the prohibition on identification of a child under s 534 of the Children, Youth and Families Act 2005.
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 August 2023 |
DATE OF JUDGMENT: | 14 August 2023 |
CASE MAY BE CITED AS: | Re application for bail by PI |
MEDIUM NEUTRAL CITATION: | [2023] VSC 481 |
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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 – Potential delay would constitute significant time in custody – Existence of family support, additional supports and bail conditions important in assessing risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Joosten | Victorian Aboriginal Legal Service |
| For the Respondent | Ms SA Coombes | Office of Public Prosecutions |
HIS HONOUR:
The applicant is a 17 year old Aboriginal child with no criminal history. He seeks bail on a number of matters brought by a number of different informants, comprising nine separate matters. The more serious charges are those brought by Senior Constable Conor Healy and Senior Constable Jaclyn Smith, but I have had regard to all of the offending.
The Healy matters involve three charges of aggravated carjacking and some associated offending of armed robbery, unlawful assault, failing to answer bail and theft of a motor vehicle. The Smith matter involves another allegation of aggravated carjacking. Each of the charges allege that a number of offenders committed an aggravated carjacking on rideshare vehicles using a machete or other bladed weapon and then stealing the vehicle. The alleged offending in relation to the other matters include charges of affray, theft of a motor vehicle, unlicenced driving and armed robbery.
The critical questions that the court must address in determining whether or not to grant bail is whether the applicant has shown there are exceptional circumstances justifying the grant of a bail. That test is required because of the nature of the offending that is alleged against the applicant.[2]
[2]Specifically, the applicant is charged with aggravated carjacking, an offence against s 79A of the Crimes Act 1958, in the informant Smith matter and first and second informant Healy matters; see Bail Act 1977, sch 1, item 5.
If the applicant satisfies the court that there are exceptional circumstances justifying bail, bail must be refused if the court is satisfied there is an unacceptable risk of the kind referred to in s 4E of the Bail Act 1977 (‘the Act’) and that the risk cannot be moderated by the imposition of conditions. In assessing those two critical matters, that is, exceptional circumstances and the degree of risk that would be associated with a grant of bail, the Act requires me to take into account a number of very important matters in relation to the applicant.
The first is, because the applicant is a child, the Court must take into account the following mandatory considerations in s 3B of the Act in determining the application. They are the need to consider all other options before remanding the child in custody; the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; the desirability of allowing education, training or employment of the child to continue without interruption or disturbance; the need to minimise the stigma to the child resulting from being remanded in custody; the likely sentence should the child be found guilty of the offence charged; and 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.
I am required and I do take into account all of those matters. In addition, the applicant is an Aboriginal person and as a consequence, the Act requires me and I do take into account the fact that issues arise due to his Aboriginality, including aspects of cultural background, ties to extended family and place and other relevant cultural issues or obligations.
In considering those matters, I have had regard to the observations of the Court of Appeal in HA (a pseudonym) v The Queen[3] and in particular, at paragraphs 58 to 59.
[3][2021] VSCA 64.
The applicant relies on a number of factors to establish exceptional circumstances, many of which overlap with the question of unacceptable risk. The applicant relies on the fact that he is a child, to which I have already referred, and an Aboriginal person.
The applicant also points to the strength of the prosecution case in relation to the first of the Healy matters and, to a lesser degree, the second of the Healy matters. In relation to the Smith matter, it is submitted that the question of the strength of the prosecution case has to take into account that the brief is presently incomplete.
I will return to the strength of the prosecution case shortly. The applicant also relies on delay, noting that, at present, the aggravated carjacking charges are listed for committal mention in the Children’s Court on 5 October this year and that should the matters proceed to a contest, there will be a further delay. The applicant next points to family circumstances; the fact that he has the support of his family including a stable family home and employment with his father’s business.
In addition and finally, the applicant notes that there are extensive supervision and other supports available should he be granted bail. I turn to consider a number of the aspects of the matter, dealing first with the nature and seriousness of the alleged offending.
The alleged offending brought in the name of informants Smith and Healy is undoubtedly objectively serious, involving the use of weapons against vulnerable targets. Those charges are by far the most serious and they, if established, would involve very grave offending.
In terms of the strength of the prosecution case, it is difficult at this stage to form any detailed view on that question. I note that Ms Joosten for the applicant submitted that, in the matter of Smith, the brief is incomplete and the descriptions given by the witnesses are not consistent with the applicant’s appearance, and the telecommunications evidence of presence of phone signals raises some doubt about the applicant’s presence at the scene of the offending.
In relation to the Healy matters, it is said that there are plainly triable issues, including suggestions of inconsistent identification by the victim as to what the offender was wearing and the clothes which the applicant was seen wearing on the day. I note that it appears, although the position is not entirely clear, that the prosecution is seeking to obtain forensic evidence, in order to seek to establish that the applicant was present in one or other of the motor vehicles that were the subject of the charges.
I take into account that there are triable issues in relation to the charges, but at the same time, it could not be said that the prosecution case was necessarily weak on any one of them. I turn then to the applicant’s history on bail. The applicant has no prior criminal history, and the alleged offending commences in about November last year. As a result of various charges being brought, the applicant has been on bail for various periods of time, and has also had two significant periods of remand.
I have had regard to the bail compliance history. It is fair to say that it is mixed and there are a number of aspects of concern, including allegations that offending has been committed whilst on bail. Importantly, there was a period of time between 18 May and 13 June when the applicant was remanded, and then he was released on or about 13 June under intensive bail supervised by Youth Justice. During the period of 13 June 2023 to 18 July 2023, the applicant was scheduled for twice weekly supervision appointments at the Sunshine Justice Service Centre. He attended 11 of 11 scheduled appointments, and his compliance and engagement throughout this period was regarded by Youth Justice as satisfactory.
On 20 July 2023, the applicant failed to attend his scheduled appointment, and was uncontactable, and on 21 July 2023, Youth Justice was advised by the applicant’s father that the applicant did not return home the previous night, and had not made contact. On 21 July, a further appointment was missed, and over the next few days there was no contact. On 26 July, the applicant was arrested for being in breach of his intensive bail conditions. He appeared before the Court and was remanded in custody on 27 July, where he remains pending this bail application.
That period of time is important in a number of respects. Firstly, it does show from 13 June to 18 July a period in which there was significant and important compliance with bail conditions, but it also shows the risk of non-compliance, and it was that non-compliance which led to the present remand. Overall, I take the bail compliance history as showing signs of promise, although not without some concerns. The existence of family support and stable accommodation is important in assessing both exceptional circumstances and unacceptable risk.
The applicant’s father gave evidence before me this morning, and impressed me as someone who is endeavouring to do his best to provide a caring and supportive environment for the applicant, and is undoubtedly concerned about the course of events over the last nine or ten months. The applicant’s parents and two other children live in a house where they have lived for the last nine years. The applicant has his own bedroom. The applicant’s father indicated that the applicant worked with him in his concreting business and was hard working and showed positive signs of engagement with his employment, although understandably found the work tiring and physically demanding, which required reducing his number of days from five to three. But again, there were signs of promise in that employment engagement.
In addition to his family support, there are a number of other treatment and bail support services that are available to him. Importantly, the court has received a Youth Justice Bail Service Report prepared by the applicant’s case manager, Oscar Bussell-Poole, and the general manager of the north west metropolitan area. In that report, which recommends the applicant for supervised bail, it is said that due to the frequency of his arrests, known pattern of behaviour and positive episodes of compliance prior to his current remand, it is assessed the applicant would benefit from the Youth Justice intensive bail service where he would have increased supervision and access to the Caraniche Forensic Youth Services (‘CFYS’) psychosocial modules.
Youth Justice notes the applicant has previously been afforded the opportunity of the intensive bail service, and was found in breach of those conditions. As I have already noted, an earlier period of intensive bail supervision resulted in a breach, and the mere fact of intensive bail would not necessarily be enough to justify a favourable finding on risk. But I note that it is contemplated that he will have CYFS modules which will provide additional support, and a referral has been made to the Putting Families First (‘PFF’) program in order to address concerns around the applicant absconding from home, and the difficulties experienced by his parents with enforcing boundaries.
If the applicant is granted bail, the family’s allocated PFF case worker will engage and support the applicant and his family members through weekly outreach sessions. There will be other courses and programs through Youth Justice to assist the applicant. In addition, there are support mechanisms through the Victorian Aboriginal Child Care Agency (VACCA) the Bert Williams Aboriginal Youth Service (BWAYS) and programs through or facilitated by the Victorian Aboriginal Legal Services, including the Step-Up2U program, and some alcohol and drug supports through Western Health.
I regard the existence of family support and those additional supports that I have mentioned as extremely important in assessing the risk that the applicant poses, should he be granted bail. In my view, delay is a significant matter in this application. As I have already noted, the committal mention will be held in October, and it is entirely possible that the matters would not be resolved this year. And that would constitute a very significant time in custody for a young man of the applicant’s age, and for someone who has had no convictions and no criminal history prior to the current alleged offending.
I am satisfied, having regard to the combination of matters, that there are exceptional circumstances justifying bail, and I note that the respondent fairly submitted that it was open to the court to so find. In relation to the risk, I am satisfied that all of these matters, together with conditions, will ensure that the risk of offending while on bail is not unacceptable. It is not possible to eliminate entirely the risk that a person in the position of the applicant poses, and the Act does not require a cast iron guarantee. But even a small risk of offending of this kind represents a very significant matter and one which the court must weigh heavily.
Ultimately, I am persuaded that the risk is not unacceptable on the basis of the applicant’s personal circumstances and the supports that are available. In addition to that, the conditions that I intend to impose will moderate the risk to ensure that it is not unacceptable. For these reasons, I propose to grant the applicant bail.
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