Re Application for Bail by WB

[2015] VSC 630

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0149

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by WB

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2015
DATE OF RULING:	19 October 2015
CASE MAY BE CITED AS:	Re Application for Bail by WB
MEDIUM NEUTRAL CITATION:	[2015] VSC 630

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CRIMINAL LAW – Application for bail – Assault emergency worker – Intentionally cause injury – recklessly cause injury – possess a prohibited weapon (imitation firearm) – unlawful assault with a weapon (imitation firearm) – Assault police officer while on bail – contravene bail – Applicant in show cause position - Child accused – Crown did not oppose bail subject to conditions - Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Ferdinands	Office of Public Prosecutions
For the Respondent	Ms C. Woodward	Victoria Legal Aid

HIS HONOUR:

1. The applicant is a 15 year-old boy.  He is from an unstable family background and has repeatedly offended over the past 18 months or so.  On 3 October 2015 he was on bail for various offences, including two counts of criminal damage and two counts of trespass. On that day it is alleged that he committed the offences that underpin this application.

1. In short compass, a police officer was in the process of dismantling a preliminary breath testing station situated in Ballarat Road, Deer Park.  That police officer noticed a red laser dot on her chest.  She saw three male youths standing amongst some trees about 50 metres from her.  She observed one of them to be holding what appeared to be a firearm with a laser pointer attached.  One of the males yelled an obscenity at her.  She returned to the booze bus and informed her colleagues. 

1. Police approached the males.  Three were situated in an area amongst trees, a fourth was some distance away.  They were all identified and what turned out to be an imitation firearm was seized.  The males were not arrested at that time. 

1. It is undisputed that the applicant was not in possession of the imitation firearm at any relevant time.  The applicant was interviewed on 5 October 2015 and charged with assault of an emergency worker, intentionally causing injury, , recklessly causing injury, possession of a prohibited weapon, assault with a weapon, committing an indictable offence (assault of police) whilst on bail, and without reasonable excuse breaching two conduct conditions of his bail. 

1. When interviewed the applicant denied agreeing with, assisting, or encouraging the principal offender to commit the alleged offences.  It follows that the case against the applicant must be put on the basis that either he was aiding and abetting the principal offender or that he was part of a joint criminal enterprise or agreement. 

1. I do not regard the case against the applicant as particularly strong.  In the absence of admissions it is notoriously difficult to prove a specific intention to carry out the acts that would constitute aiding and abetting, or alternatively to prove the agreement alleged. It is trite law that mere presence at the scene of a criminal offence is insufficient to attract criminal culpability. 

1. The applicant's recent criminal history in his short life to date suggests that he is at substantial risk to re-offend.  Having said that, he has spent approximately 14 days on remand in youth detention for these offences.  Even if he were convicted, it is unlikely that he would receive a more severe sentence than that already served. 

1. Further, if he were to plead not guilty it is unlikely that the matter would be heard before the New Year.  It would follow that the applicant would have been in custody for several months before the matter were dealt with one way or the other.  In my view that would be quite unsatisfactory. 

1. The prosecution do not oppose bail provided relatively strict conditions are imposed.  In my view the applicant has shown cause why his continued detention is not justified.  I consider the combination of the following factors contribute to the applicant's discharge of that burden:

(a)   His age.

(b)   The strength, or lack of strength, of the Crown case. 

(c)    The time already served, and that which would be served if he determined to contest the allegations. 

(d)  The proposed engagement of Youth Justice.

1. I am told in affidavit form that the applicant has engaged positively with Youth Justice who support this application.  There is accommodation available for the applicant at a residential unit in Deer Park. 

1. A potential difficulty may arise because I propose to impose a condition that requires the applicant not to have contact with any of his co-accused.  One of his co-accused who is currently in detention in fact resided at the Deer Park address.  Should he be released from detention and propose to reside at that address then an application will have to be made before me to vary the conditions that I am about to impose to accommodate this circumstance. 

1. It is clear that the applicant requires reasonably close supervision and support in dealing with drug and alcohol problems.  The residential unit at which he will reside accommodates other young persons and has 24 hour adult supervision.

1. In the circumstances, I am prepared to grant the applicant bail on the following conditions:

1.That he reside as directed by the Department of Health and Human Services (‘DHHS’). 

2.That he not reside with ‘J W’ or ‘G F’.

3.That he comply with all lawful directions of Youth Justice. 

4.That he not have any contact with ‘J W’, ‘G F’ or ‘K B’.

5.That he not leave his place of residence or the place where he is permitted to stay between the hours of 8.00pm and 7.00am, except when in the company of a DHHS worker or his or her nominee. 

6.That he must notify the informant 24 hours prior to any change of address.