Re Application for Bail by RS
[2013] VSC 350
•10 July 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
PRACTICE COURT
S CR 0120 of 2013
| IN THE MATTER of the Bail Act1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by RS |
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JUDGE: | ELLIOTT J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 July 2013 | |
DATE OF JUDGMENT: | 10 July 2013 | |
CASE MAY BE CITED AS: | Re Application for Bail by RS | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 350 | |
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CRIMINAL LAW — Bail applicant at risk of reoffending — Nature of offending not grave — Applicant a juvenile — Possibility sentence if convicted would be significantly shorter than period on remand — Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T M Marsh | Legal Aid |
| For the Respondent | Mr M I Grant | The Office of Public Prosecutions |
HIS HONOUR:
The applicant is 16 years and 2½ months old. Until very recently, he had no criminal record. However, he now finds himself charged with a number of offences:
(1)4 counts of obtaining financial advantage by deception.
(2)3 counts of obtaining property by deception.
(3)1 count of handling stolen goods.
(4)1 count of dealing with property suspected of being the proceeds of crime.
(5)5 counts of theft from a motor vehicle.
(6)2 counts of attempted theft from a motor vehicle.
(7)1 count of theft.
(8)1 count of possessing a prohibited weapon.
(9)3 counts of attempt to obtain property by deception.
It is alleged the first of these offences was committed on 14 April 2013. Many of these offences relate to the same incidents. As is set out in more detail below, there have been 3 occasions where the applicant has been arrested for committing various of the offences listed above.
A brief chronology of the applicant’s detention and previous bail history is as follows:
(1)On 7 May 2013, the applicant was arrested and charged for events between 17 April 2013 and 6 May 2013. Bail was granted by police subject to certain conditions.
(2)On 9 May 2013, the applicant was arrested and charged for offences alleged to have occurred between 14 April 2013 and 2 May 2013. He was again granted bail by police on the same conditions.
(3)On 14 May 2013, it is alleged the applicant breached his curfew (being one of the conditions previously imposed). He was re‑bailed at the Children’s Court.
(4)On 3 June 2013, the applicant was arrested and charged in relation to an offence alleged to have occurred on that day. He was remanded in custody until 4 June 2013.
(5)On 4 June 2013, the applicant was granted bail by the Children’s Court. Again, conditions were imposed.
(6)On 5 June 2013, the applicant was arrested for breaching conditions of bail (again concerning the curfew imposed). He was remanded in custody until 12 June 2013.
(7)On 12 June 2013, the applicant was granted bail by the Children’s Court.
(8)On 26 June 2013, the applicant was arrested and charged with further offences. On that day he was remanded in custody by the Children’s Court.
(9)On 3 July 2013 an application was made to the Children’s Court for bail. That application was refused.
I have not got the actual reasons given by the Children’s Court on 3 July 2013. I simply have a summary, which reads as follows:
His Honour refused [bail] on the basis that he did not accept that cause was shown and he thought that there was an unacceptable risk that the accused would commit further offences whilst on bail. His Honour indicated that he was concerned about the alleged accrual of charges and breaches of bail over the preceding months and the applicant’s drug use prior to his remand.
The reference by his Honour to the requirement to show cause arises by reason of s 4(4) of the Bail Act 1977 (Vic) (“the Act”). As the applicant has committed an indictable offence while he was at large awaiting trial for another indictable offence this provision is enlivened. It follows that he must also show cause before me before bail may be granted.
An affidavit was filed in support of the application affirmed by Danielle Narite Svede. That affidavit included an exhibit which was a report by Dr Stephen Mihailides, a psychologist (“Mihailides”). The applicant was referred to Mihailides at the Children’s Court Clinic on 28 June 2013 for assessment and recommendations. Mihailides was asked to consider “substance use and mental health issues”. The report dealt with various issues pertaining to the applicant. Amongst other things, it dealt with the applicant’s present state given his incarceration. It also considered his family background and other matters confronting the applicant as part of his personal circumstances. The report concluded with the following:
[RS] was not an entitled, arrogant teenager. He was an open, engaging young person and he has formed a reasonable working relationship with his Youth Justice Worker. There were gains apparent in his capacity for insight since he was last assessed.
…
His remand has been useful from the point of view of detox and it has disrupted his substance use. However, [RS] faces the risk of adversive socialisation by the criminogenic detention environment for a prolonged stay, and despite his attempts to mask his feelings, he is an anxious teenager. The clinician encourages recommendations including:
·[RS]’s referral into drug and alcohol counselling, provided the psychologist involved addresses [RS]’s whole-person needs, especially his grief and multiple losses. Ms Lougoon noted that the Central Bayside Community Health Service has accepted [RS] into their care.
·His referral to an educational initiative.
Evidence was also called on behalf of the applicant. Ms Jordana Lougoon (“Lougoon”), a youth justice worker, gave evidence in support of bail being granted. In substance, she stated that she had very close contact with the applicant and had noticed a considerable improvement in his disposition in more recent times. She gave evidence that she believed the mental health of the applicant had improved and that he now had a sincere desire to engage with services to assist him in his rehabilitation and to refrain from drug use and offending.
Lougoon’s evidence, which I found of considerable assistance, went into some detail about the history of the conduct of the applicant since September of last year. She said her relationship with the applicant was one of the better relationships she had with a client.
Lougoon also indicated that a large amount of the difficulty in which the applicant now found himself could be attributed essentially to 2 matters; namely, the mental health condition of his mother (the details of which it is not necessary to go into) and the applicant’s dependency upon illicit drugs. In relation to the former of these issues, I was informed that the Department of Human Services is now actively engaged in providing assistance to the applicant’s mother and also at the family home. In relation to the latter, Lougoon stated that, unlike earlier times, the applicant was now actively seeking out assistance to deal with issues relating to drug abuse. In substance, she stated that the applicant had been “nagging” to get assistance.
Lougoon also said that she anticipated from 17 July 2013 both the applicant and his family would be receiving an intensive level of support from the Department of Human Services. She said that this support had not previously been available to the applicant and believed that it would make a significant improvement in relation to his position.
Lougoon opined that even if the applicant were to plead guilty to all of the offences with which he is presently charged, she would still be of the view that a supervision order would be appropriate, rather than incarceration. I consider there is a real prospect that such a recommendation could be accepted by the court.
Evidence was also led by the respondent. An affidavit in opposition to the application for bail was filed. The evidence referred to in this affidavit was largely historical. In addition, the respondent called Detective Senior Constable Andrew Wise (“Wise”) to give evidence. I found him to be an impressive witness.
Essentially, Wise said that the only concern he had in relation to the applicant was that there was a risk of reoffending. Broadly speaking, he said this risk arose out of the circumstances in which the applicant would find himself if bail were granted, as he would be required to reside at the family home. Wise gave frank evidence to the effect that if the applicant did not have the influence of his mother, his concerns would not be as heightened as they presently are. Further, although he said he could not be sure what value it would have, he agreed that the drug and alcohol counselling the applicant had agreed to undergo did alleviate his concerns to some extent.
Wise also stated that he had had repeated dealings with the applicant since April of this year. In those dealings, the applicant had been cooperative and Wise observed that the applicant’s misconduct was consistent with it being attributable to drug use. He also said he was satisfied that the applicant wanted to get off drugs and was seeking assistance in that regard.
As to the position of the applicant’s mother, Wise said he had met her on 3 occasions. He said that he was not an expert, but it was obvious to him that she needed help in order to care for her family. He also said that the applicant had effectively been forced into the position of having to run the family home. He said in these circumstances he did not think the applicant’s mother would be able to assist the applicant with compliance of any conditions if bail were granted.
Wise also said he did not think the applicant was a flight risk.
Finally, as a general comment, I found Wise was very supportive of the applicant and quite sympathetic to his circumstances. He said the applicant had always shown remorse upon each of the occasions where he had been arrested by Wise.
In light of the evidence led in opposition to the application, it is necessary for the court to consider s 4(2)(d) of the Act which provides as follows:
…
a court shall refuse bail –
(d)if the court is satisfied –
(i)that there is an unacceptable risk that the accused if released on bail would –
…
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or
…
This gives rise to an immediate issue as to how s 4(2)(d) and s 4(4) of the Act interrelate. This question was addressed by Maxwell P (sitting at first instance) in Re Asmar.[1] In that case, after referring to an earlier decision of DPP v Harika,[2] the President stated as follows:[3]
[1][2005] VSC 487.
[2][2001] VSC 237.
[3]At [11] – [12].
In my view, the question – the only question – for the court on an application to which s 4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified.”
Put another way the question is whether the applicant has satisfied the court that his/her detention in custody is not justified. That question will be answered either in the affirmative or the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step….
This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be a part of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question a different way. The same considerations must be relevant.
Counsel on behalf of the applicant submitted that bail should be granted for reasons which included the following:
(1)The availability of drug counselling and the willingness of the applicant to partake in such counselling.
(2)The evidence suggested that the offences alleged were all directly related to drug use by the applicant.
(3)The level of supervision and support that is now available to the applicant from the Department of Human Services and others, upon the applicant’s release and in particular from 17 July 2013.
(4)The relatively limited criminal history of the applicant.
(5)The real possibility that even if the applicant pleaded guilty to all the offences, he could still properly be considered for a youth supervision order rather than incarceration.
(6)The opinion expressed by Mihailides that the applicant faced a risk of adverse socialisation if he had a prolonged stay in a detention environment.
(7)The evidence against the applicant was largely circumstantial, and there was likely to be a long delay in the finalisation of the matter as a brief had not yet been prepared and it was likely that the applicant would be contesting the majority of the charges.
I have decided that the applicant’s detention is not justified and that it is appropriate to grant bail in the circumstances. Given that the level of support which is now being made available to the applicant, together with the applicant’s change of attitude in relation to drug use and counselling, I believe his prospects have been considerably improved. Further, the applicant is obviously respectful to the authorities, including the police. If he is required to report regularly to a local police station it is likely that will substantially reduce the risk of reoffending.
I am also persuaded that, given he has already spent approximately 2 weeks on remand, there is a real prospect that his term of imprisonment might be as long or even longer than the length of time he might spend imprisoned in the event that he were to plead guilty to the charges laid against him.[4] Finally, if the applicant was to be held until the trial of his offences, there is a real basis for being concerned that the extended period of incarceration would have a significantly deleterious effect on him.
[4]See In the matter of an Application for Bail by Patricia Mitchell [2013] VSC 59, [12].
I intend to impose conditions upon the granting of bail to attempt to reduce any risk of reoffending on the part of the applicant. Those conditions are as follows:
(1) RS not depart without the leave of the court and, as often as leave is given, return at the time appointed by the court on granting leave and again surrender himself/herself.
(2) RS attend the [withheld] Children’s Court of Victoria on 17 July 2013 at 9.30am.
(3) RS reside at [address of family residence] or as otherwise directed by the Department of Human Services or Youth Services.
(4) RS not leave the residence at [address of family residence] between the hours of 6.00pm and 6.00am except in the company of his mother or his youth justice worker.
(5) RS report Monday, Wednesday and Friday to the officer in charge of [withheld] police station or his nominee between the hours of 6.00am and 6.00pm.
(6) RS not contact directly or indirectly any witness for the prosecution except the informant or his nominee.
(7) RS comply with all lawful directions of Youth Justice and the Department of Human Services.
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