Re application for bail by ZS
[2018] VSC 153
•6 April 2018
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0071
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by ZS
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JUDGE:
CHAMPION J
WHERE HELD:
Melbourne
DATE OF HEARING:
4 April 2018
DATE OF JUDGMENT:
6 April 2018
CASE MAY BE CITED AS:
Re application for bail by ZS
MEDIUM NEUTRAL CITATION:
[2018] VSC 153
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CRIMINAL LAW – Application for bail – Children’s Court – Offences involving robbery and obtaining property by deception – Whether applicant poses an unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES:
Counsel Solicitors For the Applicant Ms N Karapanagiotidis Victoria Legal Aid For the Respondent Mr P Collins Victoria Police HIS HONOUR:
Introduction
1 On 19 March 2018, ZS (‘the applicant’) was arrested and charged by police with the offences of robbery and obtaining property by deception, both committed on the same day.
2 The day following the commission of the offences, 20 March 2018, the applicant appeared at the Dandenong Children’s Court and pleaded guilty to the two charges he faced. The Magistrate deferred the sentence to be imposed and refused bail on the grounds that the applicant was an unacceptable risk of re-offending. The matter was listed for a 21 day ‘rollover’ to occur on 6 April 2018, and for finalisation of the matter on 4 May 2018 in the Dandenong Children’s Court.
3 The applicant has been in custody since his arrest. He is presently 16 years old, and will turn 17 on 12 December 2018.
4 By an application dated 22 March 2018, the applicant applies to this Court for a grant of bail pending the eventual disposition of the matters in the Children’s Court.
The alleged offending
5 At approximately 12.45pm on 19 March 2018, the applicant and two associates were walking along Lightwood Road in Noble Park, when they saw the victim, Thuynhi Chieu, who was also walking in the street. The applicant yelled at the victim, who continued to walk. The applicant then chased the victim, pushed her up against a fence, and punched her chest. After a brief struggle, the applicant managed to steal the victim’s purse from her bag before leaving the scene on a scooter. The incident was filmed by a witness, and observed by one other person.
6 The applicant went home and a pizza was ordered using the victim’s credit card. At approximately 3.30pm the same afternoon, the applicant left his home and was soon after identified by police, who were present in the area in relation to an unrelated incident. The applicant was arrested by police, who later found evidence connecting the applicant to the offending conduct in the applicant’s bedroom.
7 The applicant’s girlfriend was also arrested after being found in possession of the victim’s library card.
The applicant
8 The applicant is a 16 year old Aboriginal male who is currently subject to a ‘care by Secretary order’, which expires on 29 August 2018. He has had a very difficult upbringing. Until the age of 11 he resided with his parents, however, Child Protection Services were regularly involved due to concerns about the family, revolving around parental substance abuse, family violence, inappropriate parenting, chaotic lifestyle, sexual abuse of the applicant and abandonment by his mother. It appears the applicant is now estranged from his mother, and his father resides in Queensland.
9 Between the ages of 11 and 16, the applicant resided in over 15 different residential units. However, he now has stable accommodation available to him through the Lead Tenant program, which provides safe and supportive accommodation for young people between the ages of 16 and 18, with the objective of preparing them for the responsibilities of independent living. The program assists in developing living and budgeting skills, and in making positive choices to enhance current and future situations.
10 A pre-sentence report written for the purpose of earlier criminal proceedings described the applicant’s childhood as ‘traumatic, with consistent Child Protection involvement since [he] was only six years old’. These circumstances coincided with the applicant’s diagnosed attention deficit hyperactivity disorder (ADHD) diagnosis. He has experienced extensive trauma within the family home up until the age of 11 followed by the hierarchical and challenging environment of residential unit placements. He does not present with an intellectual disability.
Criminal history
11 The applicant has a criminal history dating back to 2015, but without any convictions previously being recorded. He has previously been found guilty of 12 counts of theft, eight counts of property damage, five counts of assault, three counts of failure to answer bail, two counts of possessing controlled weapons without excuse, and one charge of recklessly causing injury, intentionally causing injury, obtaining property by deception and possessing cannabis.
12 Notably, at the time of the offending currently before the Court, the applicant was subject to a seven month probation order following a finding of guilt on 7 March 2018 at Moorabbin Children’s Court in relation to some of these charges.
13 It is of particular concern that the offending conduct now before this Court occurred at the beginning of a probation period of seven months, imposed a matter of weeks previously.
The applicable legislation
14 Pursuant to s 4(1)(b) of the Bail Act 1977 (‘the Act’), the applicant is prima facie entitled to bail. Notwithstanding that entitlement, pursuant to s 4(2)(d) of the Act, a court shall refuse bail if satisfied there is an unacceptable risk the applicant would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety and welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or any other person. The onus of establishing an unacceptable risk lies with the respondent to this application. The applicant is not in a position where he is required to show cause why his detention is no longer justified.
15 In making a bail determination, pursuant to s 3A of the Act the Court must take into account any issues arising from the applicant’s Aboriginality, particularly the applicant’s cultural background, including ties to extended family and place, and any other relevant cultural issue or obligation.
16 In addition, as the applicant is a child, pursuant to s 3B of the Act, the Court must take into account the following in making a determination on the question of bail:
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.
The applicant’s contentions
17 By affidavit dated 22 March 2018, the applicant’s solicitor, supporting a grant of bail, submits that the following matters are established by evidence and are sufficient to demonstrate why the applicant is not an unacceptable risk and should be granted bail.
Youth and indigenous background
18 The applicant is a 16 year old, young Aboriginal male. As observed, he is a child for the purposes of this application.
Suitable accommodation
19 The applicant has accommodation available to him at a house through the Lead Tenant program. He has been living in this accommodation since December 2017, and the Lead Tenant is a 40 year old male teacher whose role as a ’professional lead‘, involves his residing in the property overnight, and providing the applicant with day-to-day guidance, mentoring and support.
Youth Justice support
20 Prior to his remand into custody, the applicant was being case managed by a Youth Justice worker, Todd Caldwell. It appears Mr Caldwell is able to continue providing the applicant with support, should there be a grant of bail.
Concern Australia support
21 The applicant is supported by Concern Australia. Concern Australia is a chaplaincy program which offers pastoral care to young males connected with the Malmsbury Youth Justice Centre. Ms Jessica Ruschen, a youth worker, is willing to work together with Mr Caldwell, and the applicant, to provide the applicant with intensive support should bail be granted. This would include a referral to Youth Support and Advocacy Service, (‘YSAS’) two days’ supervision per week, and supporting the applicant in complying with bail conditions, developing education pathways and attending appointments.
Delay
22 The sentencing Magistrate has indicated an intention for the applicant to remain on remand until the matter is finalised on 4 May 2018, at which time the applicant will have then spent over six weeks in custody. An allied submission was made that when the matter is finally resolved the outcome might not be a custodial disposition. It is difficult to judge that possibility at this stage, and it is not a matter for me to determine in any event.
The offending conduct
23 The applicant submits that the offending was not premeditated, but was opportunistic and fuelled by alcohol. It is submitted he made full admissions to the offending, pleaded guilty at the earliest opportunity, and has expressed remorse and insight into his offending behaviour. It is further submitted the applicant has previously engaged well with Youth Justice on occasions where there has been a deferral of sentence.
The prosecution’s contentions
24 By affidavit dated 27 March 2018, the prosecution initially opposed the granting of bail, supporting that opposition with the argument that there was an unacceptable risk that the applicant would commit offences whilst on bail, endanger the safety and welfare of members of the public, and fail to surrender himself into custody in answer to his bail.
25 In support of those submissions, the prosecution noted that the applicant had previously pleaded guilty to three counts of failing to appear on bail and, further, was on probation at the time of the offending.
26 The prosecution also disputed the submission that the applicant was remorseful, noting that until he was presented with overwhelming evidence, he lied to investigators about his involvement in the offending. The prosecution also disputed that the offending behaviour was fuelled by alcohol, arguing that the applicant’s behaviour at the time of his arrest was inconsistent with someone who had consumed a significant amount of alcohol.
27 Additionally, the prosecution had submitted that, if released on bail, the applicant’s supervision would be limited, noting that the Lead Tenant manages five properties and primarily works during business hours. The concern was expressed that without adequate supervision, support and risk management procedures in place, the applicant was at risk of committing further offences whilst on bail.
28 Opposition to a grant of bail having been the position initially taken, by further affidavit dated 3 April 2018, the prosecution’s contentions altered.
29 The subsequent affidavit added a further matter concerning the applicant’s background, pointing out that there was a current unresolved investigation into an alleged offence that occurred on 7 February 2018. The applicant was alleged to have picked up his then girlfriend, in company with his father in a Holden station wagon, from the place that she was then residing. It is alleged that the father and brother of the applicant’s girlfriend, in an attempt to prevent her removal, followed the vehicle in another car which the father stopped in front of the station wagon. On exiting the car, the girlfriend’s brother was confronted with the applicant, who was waving a machete with a curved blade, being held in his right hand. It is not alleged that the applicant made any verbal threats.
30 Notwithstanding the events described above, the prosecution’s attitude to the current application changed following consultation with the defence about the proposed living arrangements and bail conditions that could be imposed upon the applicant. The position of the prosecution changed as a result of having the opportunity to gain a full understanding of the support available to the applicant through Youth Justice and Concern Australia.
31 As a result it is now conceded by the prosecution that bail may be appropriate, in circumstances where suitable conditions will be put in place to mitigate the risks the applicant represents to the community. In the particular circumstances of the applicant, his alleged offending, and the case against him, this was a fair and appropriate concession.
The evidence
Evidence was called in the application from Ms Priscilla Cox from Youth Justice, and Ms Jessica Ruschen, a youth worker from Concern Australia. Ms Cox outlined that in the event of a grant of bail there would be an increased level of support for the applicant in the period that follows. There will be an increase in the number of contacts each week with the applicant, from once to twice per week. Appointments would occur at the Dandenong Youth Justice office, and a Youth Justice worker can also undertake outreach appointments or take the applicant to other appointments in the community as part of that supervision. Ms Cox outlined a series of other available programs that can be deployed to assist the applicant, including attendance at YSAS, and Ngwala. Further, it is proposed that a diary will be drafted in order to make it clear to the applicant what his ongoing program, and his specific obligations and responsibilities, will be.
In summary, Youth Justice is comfortable with the proposed accommodation and reporting arrangements that would be in place in respect of the applicant.
Ms Ruschen indicated she had worked with the applicant since September 2017. She proposed that there will be an increased level of contact with the applicant, of up to four times a week. Further, Ms Ruschen gave evidence that the Lead Tenant arrangement is designed to help the young person get ready for independent living, and it is less supervised than residential care. The role of the lead tenant is to be ‘an every-day person to be a positive role model for the young person’.
Importantly, there is evidence of a strong level of communication between the two organisations that the two witnesses represented. As well, it is apparent that each organisation plans a series of programs for the applicant to attend. It is further hoped the applicant may return to school.
Discussion
36 Having heard the evidence called, and the submissions made, I am satisfied that bail should be granted to the applicant.
37 I have taken into account the relevant matters set out in the Bail Act — in particular the matters I am required to have regard to in assessing unacceptable risk factors, as well as the matters set out in ss 3A and 3B of the Act. As observed, the applicant is not in a show cause position in this application.
38 The evidence called before me from Ms Cox and Ms Ruschen satisfies me that there will be intensive efforts made to support the applicant in the period leading up to his eventual disposition in the Children’s Court in early May 2018. Whereas there was a level of support before the relevant offending had occurred, it now appears that this support level will increase in intensity. In short, a significant and enhanced plan now exists to manage the applicant’s needs, but also the needs of the protection of wider community.
39 The support includes an increased level of reporting to Youth Justice; an increased level of contact with his worker at Concern Australia; a referral to Ngwala, an aboriginal support organisation offering specialist alcohol and drug rehabilitation and outreach support services to the Aboriginal communities of Victoria; a good level of communication between his Youth Justice workers and Concern Australia; and the availability of his continued residence in the Lead Tenant program. It is significant that I am informed there is a preparedness of his carers, and his Lead Tenant, to report to the informant any breaches of his bail conditions that might occur.
40 In short, there appears to be a strong level of support for the applicant’s release on bail from these organisations. Looked at in combination, the proposed structure and level of supervision available materially adds to the reduction of unacceptable risk that might otherwise exist in this case. Importantly, an ongoing plan is in place, within which an enhanced structure of support is envisaged.
41 I remain concerned that the applicant appears to have breached the probation order granted to him in the weeks prior to the current offending, however as a balancing factor, I have also taken into account the attitude of the respondent to this application. Whilst properly acknowledging the decision to grant bail is entirely a matter for the Court, it was submitted that a grant of bail may be appropriate in the case of this applicant. It seemed accepted that so far as this applicant was concerned, the last resort of a custodial outcome in the application had not yet been reached.[1]
[1]See Bail Act 1977 s 3B(1)(a).
42 Accordingly, I propose to grant bail, but it will be on the basis that strong conditions are attached, which will include the following:
(a) He attend the Dandenong Children’s Court at 9:30am on 6 April 2018 and on 4 May 2018 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [a specified premises] (‘the premises’) or as otherwise directed by the Department of Health and Human Services (‘DHHS’), and to notify the Informant within 24 hours of any change of address.
(c) He remain at the premises between the hours of 8:00pm and 6:00am each day for the duration of bail, except in the company of a DHHS Worker or nominee of the DHHS.
(d) He present himself at the front door of the premises during those hours if and when called upon by a member of Victoria Police to do so.
(e) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 without lawful authorisation under that Act.
(f) He provide a sample of his breath for testing if required to do so by any member of Victoria Police.
(g) He participate in all programs and counselling and attend all appointments as directed by Youth Justice and Concern Australia, and he comply with all lawful directions of any officer of Youth Justice or Concern Australia.
(h) He not leave the State of Victoria.
(i) He surrender any passport he may have to the informant within 24 hours.
(j) He not attend any points of international departure.