Re applications for bail by AP, It, NT, DP and Jr
[2020] VSC 730
•4 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0271
S ECR 2020 0272
S ECR 2020 0276
S ECR 2020 0278
S ECR 2020 0279
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by AP, IT, NT, DP and JR | |
---
JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2020 |
DATE OF JUDGMENT: | 4 November 2020 |
CASE MAY BE CITED AS: | Re applications for bail by AP, IT, NT, DP and JR |
MEDIUM NEUTRAL CITATION: | [2020] VSC 730 |
---
CRIMINAL LAW – Application for bail – Murder – Child applicants – Exceptional circumstances established – No unacceptable risk – Bail granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant AP | Mr S Moglia | Dotchin Tan Lawyers |
| For the Applicant IT | Ms A Valos | Ann Valos Criminal Law |
| For the Applicant NT | Mr P Smallwood | Greg Thomas |
| For the Applicant DP | Ms K Rolfe | Orenstein Lawyers |
| For the Applicant JR | Mr J Fitzgerald | Victoria Legal Aid |
| For the Respondent | Mr M Gibson SC with Mr E Dober | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 16 June 2020 during a fight in the carpark of the Brimbank Shopping Centre, a 15 year old boy was stabbed once to the chest and died. On 22 October, eleven - nine children and two young adults were charged with his murder.
Initially between 17 June and 6 August, the co-accused were charged with the less serious charges of violent disorder and affray. All nine children were bailed on these charges either by police or by the Children’s Court. Both adult co-accused were remanded in custody.
On 22 October, Detective Senior Constable Gent charged all eleven with murder and unintentional killing pursuant to s 3A of the Crimes Act 1958 (‘the Crimes Act’) and they were all remanded in custody.
Between 22 and 26 October, bail applications were made in this court by the five youngest co-accused: JR, AP, DP, NT and IT. The hearing of these applications proceeded on 28 October.
Procedural history
The procedural history of each applicant’s matter is as follows:
(a) JR, who was 13 years and 6 months at the time of the offending and who is now 13 years and 10 months, was charged with violent disorder and affray on 17 June 2020. He was granted bail at Melbourne Children’s Court on 23 June and was remanded in custody when charged with murder on 22 October.
(b) AP, who was 13 years and 6 months at the time of the offending and who is now 13 years and 10 months, was charged with violent disorder and affray on 16 July 2020 and granted bail at Melbourne Children’s Court. He was remanded in custody when charged with murder on 22 October.
(c) DP, who was 14 years and 5 months at the time of the offending and who is now 14 years and 9 months, was charged with violent disorder and affray on 17 June 2020. He was granted bail at Melbourne Children’s Court on 30 June and was remanded in custody when charged with murder on 22 October.
(d) NT, who was 14 years and 6 months at the time of the offending and who is now 14 years and 11 months, was charged with violent disorder and affray on 17 June 2020 and granted bail at Melbourne Children’s Court. He was remanded in custody when charged with murder on 22 October.
(e) IT, who was 14 years and 11 months at the time of the offending and who is now 15 years and 3 months, was charged with violent disorder and affray on 17 June 2020. He was granted bail at Melbourne Children’s Court on 24 June and was remanded in custody when charged with murder on 22 October.
Of the remaining four child co-accused:
(a) ST is 16 years old and was charged with violent disorder and affray on 17 June and was granted bail at Melbourne Children’s Court. He was remanded in custody when charged with murder on 22 October.
(b) VN is 16 years old and was charged with violent disorder and affray on 17 June and was granted bail at Melbourne Children’s Court. He was remanded in custody when charged with murder on 22 October.
(c) AK is 16 years old and was charged with violent disorder and affray on 17 June and was bailed by police. He was remanded in custody when charged with murder on 22 October.
(d) CN is 17 years old and was charged with violent disorder and affray on 10 July and was bailed by police. He was remanded in custody when charged with murder on 22 October.
Of the two adult co-accused:
(a) Taataa Tafa is 20 years old and was charged with violent disorder and affray on 21 July. His application for bail was refused at Melbourne Magistrates’ Court on 28 August.
(b) Soreysa Jibrael is 23 years old and was charged with violence disorder and affray on 6 August. He has not made an application for bail in relation to these charges.
Applicable test
Exceptional circumstances
As the co-accused are charged with murder, a Sch 1 offence under Bail Act 1977 (‘the Act’), the exceptional circumstances test applies (s 4AA). This requires the Court to refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’ (s 4A(1A)).
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances (s 4A). In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
As the applicants are all children, the Court must also consider the factors in s 3B when deciding whether to grant bail.
Unacceptable risk test
Section 4E(1) requires the Court to refuse bail if satisfied that there is an unacceptable risk that the applicants would:
i. endanger the safety or welfare of any person; or
ii. commit an offence while on bail; or
iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or
iv. fail to surrender into custody in accordance with the conditions of bail.
v. The Court is required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not be an unacceptable one: s 4E(3)(2).
Details of alleged offending
In response to the applications for bail, informant Gent summarised the offending and evidence as follows.
Over the last three years Victoria Police have monitored three main groups of children and young people between the age of 13 and 24, referred to by the informant as ‘gangs’, in the Western suburbs of Melbourne. It is said that members of these groups communicate via social media, where fights between groups are often arranged, and that the groups are motivated by ‘their desire to obtain notoriety, street credibility and to finance alcohol and other commodities they desire’.
Two of these groups, ‘BH’ and ‘97’, with whom the informant says the co-accused are associated, have developed a rivalry with the third main group, ‘VB’.
The deceased was 15 years old at the time of his death and was friends with members of VB but there is no evidence in the material before the court that he was a member of this group. He died from a single stab wound on 16 June which he sustained during as assault on him by BH/97 members in the Brimbank Shopping Centre carpark.
There were two fights that occurred between the BH/97 and VB groups in the lead up to the deceased’s death on 16 June.
The first occurred on 11 June when a group of BH/97 members, including four of the applicants (excluding JR) and a number of other co-accused, met to have a fight behind the Brimbank Shopping Centre. This fight was between applicant NT and a member of the ‘VB youngins’ — younger children associated with VB members. After the planned fight finished, a second fight broke out between applicant IT and another of the VB youngin group. The other BH/97 members joined into this fight, kicking the VB youngin boy to the head which resulted in him losing consciousness.
In retaliation for the fight on 11 June, a second fight was arranged on 15 June also at Brimbank Shopping Centre between roughly 12 boys associated with VB and two BH/97 members (neither of which are co-accused). While this fight was happening in the carpark, applicant JR and co-accused ST were in the shopping centre. The informant alleges that they went into Target and each stole a knife but upon leaving the shopping centre and seeing police already in attendance in the carpark, they each discarded the stolen knives.
Later that night, applicant DP and co-accused Tafa both posted videos on social media purported to be seeking retribution for the fight that had occurred that day. In his, DP was heard to say ‘Fuck Solo’, which the informant alleges is a reference to the deceased.
On 16 June, the applicants along with co-accused VN, AK and CN were again at Brimbank Shopping Centre. AK and CN broke off from the group and went to Target where the informant alleges AK stole a knife. AK and CN met back up with the rest of the group who left the shopping centre.
The deceased left his school a short distance from Brimbank Shopping Centre with two friends at about 3pm. They were approached by a group of co-accused who’d been together earlier in the day, now including ST and Tafa. The informant alleged ST and Tafa were carrying weapons but it is not specified what these weapons were.
The deceased and his friends were asked whether they were part of VB or if they were at the fight the previous day. They said they weren’t. VN then hit the deceased with a baseball bat, IT tried to kick the deceased to the head and the other co-accused then joined in the fight.
CCTV footage captures the deceased and his two friends running from the co-accused.
Unable to catch the deceased’s group, the co-accused left on a bus back to Brimbank Shopping Centre where they were met by co-accused Jibrael. Shortly after they arrived, they spotted a group of boys wearing school uniforms who they started chasing through the shopping centre. This group included the brother of KG, one of the deceased’s two friends who had also been assaulted earlier with the deceased.
On hearing about the danger KG’s was in, the deceased, KG and four others went to Brimbank Shopping Centre to look for KG’s brother. After parking in the carpark, the group of co-accused approached the deceased’s group. There was an initial conversation between some members of each group but on spotting the deceased, Tafa and ST are alleged by the informant to have said ‘Let’s go get him’.
The co-accused then ran towards the deceased. The informant alleges Tafa was carrying a baseball bat, AP a broken bottle, JR an extendable baton and VN and ST both had knives.
Applicant IT was the first to catch the deceased and he dragged him to the ground. The other co-accused then caught up and punched and kicked the deceased while he was on the ground. During this assault, the deceased was stabbed once to the chest. One of the deceased’s group, LM, came to his aid and was confronted by VN with a knife. Others also came to break up the fight, including CG who pushed ST to the ground during which he dropped his knife. The co-accused then all gradually left the area.
Once the fight had ended, the deceased tried to stand before he collapsed to the ground. Paramedics, who arrived shortly after the fight, were unable to revive him and he was pronounced dead at the scene at 4.49 pm.
Parts of the fight were caught either on CCTV or by a witness who took a mobile phone video. Tafa and AP left the area on bus and the remaining nine co-accused met across the road from the shopping centre at a skate park where they talked about what had happened. During this conversation, it’s alleged that ST told the group he had ‘poked him [the deceased]’.
By 4.36 pm, police had arrested applicants JR, DP, NT and IT, and co-accused VN and ST in the streets surrounding the shopping centre. Close by to where they were arrested police located an extendable baton, baseball bat and knife which it is thought JR dropped while running from police along Little Street. The bottle AP is alleged to have had during the assault was smashed at the scene.
Forensic analysis was completed on the knifes found at the scene and on Little Street:
(a) From the handle of the knife found at the scene, three DNA profiles were identified: one belonging to ST, one belonging to AK and a third unknown profile. The deceased’s blood was also identified on the blade tip.
(b) From the knife found on Little Street, two DNA profiles were identified: one belonging to JR and one belonging to IT. Blood was identified on the blade but this was not the deceased’s blood.
Of the applicants, all except AP were arrested on 16 June and provided records of interview as follows:
(a) JR admitted to assaulting the deceased and said he saw someone using an extendable baton but couldn’t remember who. After his record of interview, JR also agreed to provide a witness statement to police. In this statement, JR recalls hearing ST and ‘Reaper’ seeing the deceased and saying ‘Let’s go get him’, after which JR, IT, ST and ‘Reaper’ (who was carrying a garden stake) caught the deceased and started to assault him. The rest of the group then caught up to them and joined the assault. JR saw ST punch the deceased twice. After the assault at the skate park, JR says that ST told the group ‘I poked him bro’.
(b) DP admitted to watching the fight but denied being involved. He said that he didn’t see any of the co-accused with knives but that the ‘Asian males’ were carrying a baseball bat, baton and garden stake. DP denied being involved in the earlier assault of the accused on 16 June and said that the deceased’s older brother was involved in the fight on 15 June and had ‘jumped’ one of DP’s friends.
(c) NT provided a no comment record of interview; and
(d) IT admitted to assaulting the deceased but said that he left before the end of the fight and he didn’t see any co-accused with knives.
On 16 July, AP was arrested. During his record of interview, he admitted to being present but denied any involvement in the assault on the deceased.
On 4 August, AP and DP’s mother AS provided a statement detailing the conversation she had with DP prior to his record of interview on 16 June. AS says that DP told her ‘it was [ST]’ who stabbed the deceased, and that the assault on the deceased had started because the deceased had previously assaulted DP, VN and ST’s cousin or brother during the fight the day before.
Matters of General Application
The applicants are each very young in the context of having been charged with murder. The oldest of the applicants before me is IT who is 15 years of age.
Originally each of the applicants were charged with affray and released on bail. On 22 October 2020 they were charged with murder intentionally or in the alternative constructive murder pursuant to s 3A of the Crimes Act.
It is not alleged that any of the applicants delivered the fatal blow (a single stab wound to the chest). The Crown case may be viewed in different ways. Dealing with intentional murder. First when considering each applicant it can be alleged he was party to an agreement to murder the deceased. That allegation would depend upon an analysis of the matters set out in the above summary relating to each applicant. It is in part pertinent on the proposition that it can be said that some of the applicants said things which would indicate a murderous hostility to the deceased. Whether the remarks alleged were referenced to the deceased remains to be seen. Any tribunal of fact assessing what was said would have to assess what was intended in those utterances having regard to the youth of the applicants. Second, the case is put on the basis of intentionally assisting or encouraging the principal offender. Third, either being party to or encouraging a lesser offence being aware of the probability of the offence of murder being committed. It is not possible to assess how.
All of those ways of putting the case would depend upon it being shown that the actual stabber was guilty of murder. History and experience tells us that single stab wound cases very often lead to convictions for manslaughter.
Next it is necessary to consider constructive murder. The crime of violence here alleged is that of violent disorder.[1] It would be necessary to show that the deceased was killed by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence.[2]
[1]S 195I Crimes Act 195K.
[2]S 3A Crimes Act.
Because of the somewhat complicated nature of this offence it is not entirely clear how it would be applied in cases of constructive murder. It is not clear how the law of complicity might operate to those other than the actual stabber. Even if it is assumed that there is a strong case of constructive murder against the actual stabber it does not follow that the same can be said for this group of applicants.
The matters which are otherwise common to each applicant are:
1. Delay
In the Crown analysis it is conceded that there will be a probable delay of about two years. The mechanism how an 11 headed committal followed by an 11 headed trial is to be conducted would have to be worked through but it is plainly not without significant complications. I regard a two year delay for a young or very young offender as being extreme. That is particularly so for a group of applicants who have not previously being incarcerated (except for a brief period on remand).
2. COVID-19 Pandemic
As matters stand, conditions for all persons detained in the State of Victoria are more onerous than they would ordinarily be. In particular, it is not possible for persons to have visitors. That is particularly onerous for young offenders. The possibility of lockdowns cannot be ignored. It is not possible to assess when any COVID-19 restrictions might be lessened in the prison system.
3. Nature of detentions
Persons of the age of the applicants would not ordinarily be detained in a Youth Justice Centre even while serving a sentence. The possibility of exposure to older young men with substantial involvement in the criminal justice system is possible although I do not doubt the authorities would do all in their power to prevent this.
4. Youth
The group of applicants is very young.
5. Performance on Bail
Each of the applicant has been on bail since they were arrested and charged. Although there have been some breaches of bail, which I will deal with when I come to consider the individual applicants, their compliance has been quite good. That is to be contrasted with the case of many young men who come before this Court seeking bail when quite often they will have been in breach of numerous bails. More importantly, however, is the fact that the applicants were largely out of control at the time of this offending.
That situation has changed. Each of the applicants have had substantial support. All except the applicant NT have had the support of Youth Justice Bail Support and they would all have that support on an ongoing basis. Although access to schooling has not been perfect it has been much improved. No applicant has committed any further offence.
6. Absence of Prior Convictions
None of the applicants have prior convictions. That does not mean they were not involved with the criminal justice system.
I will deal with those matters when dealing with each applicant. I heard the applicants in order of age and I will deal with the applications in that order.
7. Section 3B of the Act
Section 3B of the Act relevantly provides:
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a bail decision maker 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.
(2)In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3)Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
Respondent’s submissions
The respondent relied upon the seriousness of the alleged offending and the role played by each of the applicants. It was submitted that the case was a strong case.
It was incumbent upon each applicant to show the existence of exceptional circumstances which justify the grant of bail.
It was submitted that the offending was the culmination of extensive gang activity which had large groups of young men, including all of the applicants, engaging in violent behaviour which had involved the use of weapons.
It was accepted that there could be a delay of about 2 years in this case.
The recent authorities dealing with the question of delay and the COVID-19 pandemic were drawn to my attention. The general tenor of the authorities, which I accept, is that neither delay not the COVID-19 pandemic circumstances will necessarily amount to exceptional circumstances.
The respondent then set out the features relating to each applicant in support of unacceptable risk.
To a large degree the matters relied upon related to the history of the applicants prior to these events and their history whilst on bail both before and after these events.
JR’s application — (D.O.B. 28 December 2006) 13 years and 10 months
His application for bail was filed on 26 October 2020. His bail application was supported by affidavit dated 26 October 2020. In support of the application the following material was provided to the Court:
·Youth Justice support;
oIntensive Bail Progress Report dated 8 September 2020;
oIntensive Bail Progress Report dated 21 October 2020;
oYouth Justice Bail Service Report dated 27 October 2020;
·Victoria University Secondary College — Student Absent Learning Plan and email from Glenn Leyland (Principal) dated 26 October 2020;
·Charis Cultural mentoring — letter dated 15 October 2020;
·Jesuit Social Services - letter dated 26 October 2020;
·Caraniche Youth Forensic Service Certificates:
o Are you talking to me – dated 29 September 2020;
o Stay chilled – dated 18 August 2020;
o Stay connected – dated 8 September 2020;
o Know your stuff – dated 29 July 2020;
·Letter from RC – undated.
The applicant will reside with his aunty RC who gave evidence before me. She is conscious of the supervision which will need be supplied of JR and she is prepared to supply that supervision. RC gave me an undertaking that she would report any breach of bail to the Informant.
RC also gave evidence that JR has the support of his family and his father lives nearby.
JR has been the subject of two intensive bail reports to the Children’s Court. The reports have been satisfactory. The second report of 26 October 2020 indicated that his progress has been good and recommended that he remain on bail. The following appears in the report:
SUMMARY
[JR] is a 13-year-old young person of Maori and Cook Island descent, who appears before the Court for monitoring of his Intensive Bail and mention for his outstanding matters.
Since his release on bail, [JR’s] compliance and engagement with the Youth Justice Intensive Bail Program has been positive. [JR] has attended all scheduled appointments with Youth Justice and is engaging with Charis Mentoring, Orygen Youth Health and Youth Specialist Officers. [JR] has also successfully completed his engagement with the Youth Support and Advocacy Service Drug and Alcohol Program, CFYS Psychosocial Programs and YJCSS: Further, [JR] has been engaging positively with his Absent Learning Plan and is completing work as required.
[JR] has actively engaged in discussions with the writer and appears to be motivated to continue to engage with Youth Justice and available supports. Youth Justice will continue to engage [JR] in twice weekly video call supervision appointments focusing on monitoring his compliance with bail, encouraging him to access supports particularly in relation to his mental health and planning towards his goals for the future.[3]
[3]Intensive Bail Progress Report dated 21 October 2020, 5.
As indicated the applicant is engaged in remote or absent learning programme at Victoria University Secondary College. Mr Glenn Leyland, Junior Campus Principal provided an email setting out the details of the absent learning plan and the details of what was expected of JR.
As I am obliged to have regard to the surrounding circumstances set out in s 3AAA of the Act. Among those is:
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
It is submitted that the applicant has an additional special vulnerability because he has made a statement which has been included in the Hand Up Brief.
As matters stand, that would be evidence against him and not the other accused but it does show what he has said to the police. The applicant’s solicitor had been informed before he was last released on bail that there appeared to have been some threats made about the applicant because of the statement.
The applicant has three sets of matters pending. The first of these arose on 3 November 2019 related to an incident in which the applicant, while in a group of 10 young men, was involved in the theft of about $1,000 worth of alcohol from the Celebrations store in Werribee. In the course of the theft the store owner was assaulted. The second incident occurred on 5 November 2019 at the Werribee Station. The applicant was in a group of 5 young men who attempted to rob two 13 year olds. The applicant produced a knife in the incident. A fight ensued in which one of the victims was injured. On 27 November 2019 the applicant was charged over both incidents. The third matter occurred on 20 March 2020 when the applicant was armed with an imitation firearm which he pointed at the victim. He was arrested and released on bail. He was in breach of his curfew.
In relation to his present bail, he has not further offended or breached the conditions of bail. What he does on bail will be both for him and against him on this application (s 3AAA(d)).
The support both from the family and outside agencies is significant.
I note that the applicant is 13 years of age and the presumption of doli incapax will have to be rebutted before he can be committed of any offence although that matter has not been urged on his behalf in this application.
It was submitted on his behalf that a combination of matters amount to exceptional circumstances in particular his youth, the availability of the Youth Justice Bail support programme, suitable accommodation, risk to him in custody, the COVID-19 effect on conditions in custody and delay.
I am satisfied that as a result of the combination of those features and particularly having regard to the applicant‘s age, exceptional circumstances have been made out.
The Crown placed particular reliance upon the applicant’s history prior to his involvement in the present matter as establishing that he is an acceptable risk of committing further offences on bail or endangering the safety and welfare of member of the public. In giving consideration to those matters, I am also obliged to have regard to the surrounding circumstances. I am not satisfied that the applicant is an unacceptable risk.
I am satisfied that because of the applicant’s recent performance on bail, and the support available to him, that any risk which exists can be made not unacceptable by the imposition of appropriate conditions.
AP’s application — (D.O.B. 23 December 2006) 13 years and 10 months
His application for bail was filed on 22 October 2020. His application was supported by affidavit dated 22 October 2020. In respect of his application the following was provided to the Court:
·Doli Incapax Report from Gina Cidoni dated 27 October 2020;
·Youth Justice Support:
oSupervised Bail Progress Report dated 7 September 2020;
oSupervised Bail Progress Report dated 16 October 2020;
oYouth Justice Bail Service Report dated 27 October 2020;
·St Joseph’s Flexible Learning Centre — letter dated 27 October 2020 (previous letter 14 October 2020);
·Charis Cultural mentoring — letter dated 27 October 2020.
The applicant will reside at home with his mother and brother (co-accused DP).
Particular emphasis was placed on the applicant’s age. A report from Forensic Psychologist Grace Cidoni dated 27 October 2020 was filed. In that report Ms Cidoni expressed the opinion that the applicant was doli incapax with respect to this matter. It will be for the prosecution to prove beyond reasonable doubt that he was not. Ms Cidoni had produced an earlier report dated 1 September 2020 on the same subject with respect to some earlier alleged offending which leads the police not to proceed with two other sets of matter.
The first matter occurred on 12 December 2019 when the applicant, his brother DP, VN and IT assaulted a young man at Woodgrove Shopping Centre. It is alleged that DP was the ring leader. The applicant was arrested but because of doli incapax the matter was withdrawn on 17 September 2020.
The second matter related to a theft on 10 February 2020 and that matter was withdrawn on 17 September 2020.
The third matter occurred on 23 May 2020 when a group of about 40 young men in the Werribee area gathered in preparation to fight another gang. A large affray broke out with a rival gang in Hoppers Crossing. One of the rival gang members was stabbed in that affray. Although the applicant was charged, the charges were withdrawn on 17 September 2020.
The respondent reported that the case had been withdrawn on the basis of doli incapax but Mr Simon Moglia, who appeared for the applicant, said that the case had been withdrawn on the merits. Nothing turns on the difference.
It was submitted by Mr Mark Gibson SC, who appeared on behalf of the respondent, that that earlier offending and charging might be relevant to the assessment of doli incapax. Both of the psychological assessments took place after the present offending. They are a matter for the ultimate tribunal of fact. Ms Cidoni’s assessment is relevant to the present charge and will be taken into account.
It had further been submitted by the respondent that the applicant’s school attendance had been very unsatisfactory and that was true at the time of the offending. The applicant is now engaged with Nano Nagle (St Joseph’s Flexible Learning Centre). On the material before me that situation has improved although there have been additional limitations brought about by the COVID-19 pandemic.
On reading the two letters supplied from Nano Nagle it does seem that the programme designed for AP requires his daily participation.
The progress report supplied to the Children’s Court on 16 October 2020 indicates that AP’s progress has been satisfactory.
One matter of concern is that on 10 October 2020 the applicant, his brother DP and co-accused IT and VN were observed with others drinking in a reserve in St Albans. Among the group was JKD, who is a prosecution witness. That conduct in clear breach of the applicant’s conditions of bail that he not associate with co-accused or contact witnesses. It is not clear on the material whether or not the applicant knew that JKD was to be a witness. The Hand Up Brief was not served at that stage. The gathering was in breach of the COVID-19 restrictions. The police took down names but no infringement notices were served. The matter was not drawn to the attention of Youth Justice Bail Support. The events were over taken by the further arrests on 22 October 2020.
I take the breach seriously but in comparison with other cases the performance of the applicant on bail has been quite good.
The applicant relies upon his age (including doli incapax), accommodation with his mother (I do not accept the respondent’s criticism of that accommodation), Youth Justice support, improved attendance at school, Charis Culture mentoring and involvement with Caraniche Youth Forensic Service.
I have had regard to the relevant surrounding circumstances as defined by s 3AAA of the Act and s 3B of the Act.
I am satisfied that because of the combination of matters relied upon that exceptional circumstances have been made out.
I accept that there are some risks of reoffending and in that sense endangering the welfare and safety of members of the community. I am satisfied that the risks can be not unacceptable if I impose appropriate conditions.
DP’s application — (D.O.B. 20 January 2006) 14 years and 9 months
His application for bail was filed on 26 October 2020. His application was supported by submissions dated 26 October 2020. The following material was filed on his behalf:
· Youth Justice Support:
o Youth Justice Bail Service Report dated 27 October 2020;
o Intensive Bail Progress Report dated 16 October 2020;
· St Joseph’s Flexible Learning Centre — letter dated 27 October 2020 (previous letter dated 14 October 2020);
· Caraniche Youth Forensic Services Certificate:
o Cool Heads (Emotion Regulation Program) — dated 30 July 2020;
· Charis Cultural mentoring — letter dated 15 October 2020;
· Youth Support and Advocacy Service — letter dated 15 October 2020;
· Jesuit Social Services — letter dated 27 October 2020; and
· Psychological support – Michael Bilyk & Associates — letter dated 13 October 2020.
He will live with his mother and brother. He has no prior convictions but was involved in a number of incidents and he has been charged with respect of some of them. On 22 November 2019 the applicant was in a group of about 10 young men (including co-accused IT) who apparently stole or were in possession of a bike stolen from the victim. When the victim sought to recover the bike he was stabbed multiple times. A jumper left at the scene had the applicant’s DNA on it. No charges have been laid.
The second incident is the incident described as incident 1 involving AP. That matter has been adjourned to 2 November 2020. Incident three involved the theft from a shop on 24 January 2020, and is the same as described for AP as incident 2. The matter has now been adjourned to 4 November 2020.
Incident four involved a series of refusing to leave premises and assault between 27 January 2020 and 3 February 2020 and abusive behaviour to the occupants. On one occasion a co-accused was armed with a brick. The matter has been adjourned to 21 January 2021.
Incident five is the same as incident 3 for AP and the resulting charges were withdrawn on 8 September 2020.
On 10 October 2020 the applicant was involved in the same breach as AP and it is a matter of concern. The applicant appears to have otherwise complied with his bail and it is not alleged he has committed any further offences whilst on bail.
The applicant’s attendance at school prior to these events had been quite unsatisfactory but he is now enrolled in St Joseph’s Flexible Learning Centre. The two letters from Nano Nagle are supportive of DP and appear to indicate that his engagement has been satisfactory although not on a full-time basis. The programme appears to have been more difficult because of the COVID-19 pandemic.
The Interim Bail Progress Report dated 16 October 2020 indicates that his progress on bail has been satisfactory.
DP has also been engaged with Caraniche Youth Forensic Services and certificates were provided in relation to courses he had completed. He has had the support of the Youth Support and Advocacy Services and Charis Cultural mentoring. Mr Michael Bilyk and Associates have provided psychological support. He has ongoing support of Jesuit Social Services. He will have the ongoing support of the Youth Justice Bail Support programme.
His breach of bail is significant and I have taken that into account.
In addition to the applicant’s youth and delay, the general effect of the COVID-19 pandemic on those in custody, reliance is placed on the supports set out above and his overall satisfactory performance while on bail.
I have had regard to the surrounding circumstances pursuant to s 3AAA of the Act and s 3B of the Act.
I am satisfied that exceptional circumstances have been made out by virtue of the totality of the matters relied upon. I am also satisfied that any risk which exists can be reduced to a not unacceptable level by the imposition of strict conditions.
NT’s application — (D.O.B. 24 November 2005) 14 years and 11 months
His application for bail was filed on 23 October 2020. His application was supported by an affidavit dated 23 October 2020. The following material was filed on behalf of the applicant:
·Youth Justice support:
oYouth Justice Bail Service Report dated 27 October 2020.
He will live at home with his family. He has no prior convictions and it is not alleged that he has been involved in any other incidents.
It is alleged that when the police attended at his address at 7.30 am on 22 October 2020 he was not at home because he had stayed the night at his girlfriend’s address. That was in breach of his bail conditions.
There are no other breaches of bail alleged or any other offending.
The respondent has suggested that the applicant’s school performance has been very unsatisfactory over the broad period 6 February 2019 to 26 October 2020. That does not seem to be borne out in the Youth Justice Bail Service Report of 27 October 2020 when considering the period when the applicant has been on bail. In the report the following appears:
[NT] is currently enrolled at Victoria University Secondary College (VUSC) and is completing his Year Nine.
Mr Jim Dowie, Assistant Principal, reported [NT] has been completing home based learning since June 2020. [NT] has been supported by the school who provide materials and completion plans on a weekly basis by delivering these materials to the family home. Mr Dowie confirmed that [NT] has been progressing well since he transitioned from an online learning model to being provided hardcopy work. [NT] is currently focusing on four main subjects including English, Maths, Humanities and Science. [NT] asserts his intention to continue his education
Mr Dowie confirmed that it is intended that this format of learning will continue for the remainder of the school year. This in consideration to the welfare needs for both [NT] and other students who attend VUSC following the incident for which [NT] has been remanded. Additionally, Mr Dowie noted that due to the family having moved out of the local school catchment area, exploration is underway to identify a suitable education provider in his local area.
In respect to his educational history, Mr Dowie advised that [NT] demonstrated positive engagement with his education during 2019 however this declined earlier this year. Mr Dowie advised that prior to June 2020, [NT] was not actively participating at school and was reportedly not residing at his family home. Mr Dowie confirmed that [NT] has since returned home and as noted above actively engages in his education.
It would appear that his educational performance has been at least satisfactory since the time of his arrest.
On the basis of the above report, it appears that NT can receive significant support on an ongoing basis and in a much wider framework.
Apart from the one alleged breach, he appears to have performed satisfactorily on bail without support which is a positive consideration.
I do not regard his breach of bail as being as significant as that of his co-accused but I have taken it into account.
The matters submitted on behalf of the applicant are his age, lack of criminal history, his present grant of bail, no outstanding charges, the applicant’s first time in custody, the present COVID-19 restrictions, his engagement at school and family support.
I have had regard to the relevant surrounding circumstances as defined by s 3AAA of the Act and s 3B of the Act.
I am satisfied that exceptional circumstances have been made out by virtue of the totality of the matters relied upon. I am also satisfied that any risk which exists can be reduced to a not unacceptable level by the imposition of strict conditions.
IT’s application — (D.O.B. 29 July 2005) 15 years and 3 months
The applicant filed an application for bail dated 22 October 2020 and an affidavit and submissions in support were filed on 26 October 2020. The following material was filed on behalf of the applicant:
·Youth Justice support:
oIntensive Bail Progress Report dated 4 September 2020;
oIntensive Bail Progress Report dated 19 October 2020;
oYouth Justice Bail Service Report dated 27 October 2020;
·Charis Cultural mentoring - letter dated 26 October 2020;
·Jesuit Social Services – letter dated 26 October 2020.
The applicant has no prior convictions. It is alleged that he was involved in the following incidents. Incident one on 29 August 2019, the applicant and 3 others were involved in an assault upon a school mate from St Albans Secondary College. The assault was sustained and involved the use of a knife and was eventually stopped by a teacher. The applicant was arrested in relation to the matter on 2 January 2020. The matter is next listed in the Children’s Court on 5 November 2020.
Incident two is the same incident as that described in incident one for DP. The incident occurred on 22 November 2019. The applicant was arrested in relation to that matter on 6 August 2020. It seems that the prosecution of that matter will not be authorised. Incident three is the same incident described as incident two for DP. The applicant was not prosecuted with respect to that matter. Incident four is the same incident as described as incident three for DP. The applicant was arrested, charged and bailed on 18 February 2020. It is listed for hearing on 4 November 2020.
It is alleged that the applicant has breached his bail by breach of curfew on 11 August 2020, 12 August 2020 and 24 September 2020, those breaches were reported to police by Youth Justice worker Ly-Ann de Jesus who had been notified by the applicant’s mother.
The applicant also breached his curfew and non-contact condition on 10 October 2020 in the way described in relation to AP and DP.
On 14 October 2020 the applicant’s father notified the police that IT was in breach of his curfew.
It should be noted that although those breaches were known to the police, no action has been taken with respect to them. It should also be noted that apart from the breach on 10 October 2020, all other breaches were reported to the police by a combination of the applicant’s parents and Youth Justice.
IT has been the subject of Interim Bail support and reports dated 4 September 2020 and 19 October 2020 were supplied to the Court. Those reports addresses the non-compliance of 11 September, 24 September and 15 October 2020. No reference is made to 10 October 2020 but since that breach did not involve breach of curfew it probably did not come to the attention of his parents.
The reports are generally positive and indicate reasonable engagement by IT with the available programmes but there are concerns about his breaches of bail. It is likely that the conduct in breach of curfew is somewhat similar to what occurred on 10 October 2020. IT’s educational involvement at Copperfield College had advanced to the point where it was anticipated that he might return to school. He does have some learning difficulties which it was anticipated would be addressed. Given the nature of the present charges, whether or not he will be able to return to in-person learning is moot.
The applicant has been engaged with Charis Cultural mentoring and Jesuit Social Service and has the support of those organisations. He has also been involved with Youth Justice Community Support which has been positive and involved a number of family members. That support continues. There is a Case Team in place through Youth Justice which help to co-ordinate the above services.
In support of the applicant, reliance is placed upon the applicant’s age, engagement with available services, delay, COVID-19 issues, stable home environment and availability of Youth Justice Bail Support.
Specific reference is made to the particular matters in s 3B if the Act which apply directly to the applicant.
I have had regard to the surrounding circumstances pursuant to s 3AAA of the Act and s 3B of the Act.
I am satisfied that as a result of the combination of matters set out the applicant has established the existence of exceptional circumstances.
I am also satisfied that I can impose conditions on the applicant which will render the applicant a not unacceptable risk of reoffending on bail or endangering the safety and welfare of members of the community.
I have reached that conclusion notwithstanding the serious nature of non-compliance with bail conditions. Most of the alleged breaches have been drawn to the attention of the authorities by the applicant’s family and addressed by Youth Justice. There has been no further offending. The applicant’s father gave evidence before me in which he undertook to report any breach of bail or bail conditions to the informant.
Conclusions
For the reasons stated above, I admitted all five applicants to bail and after hearing from the parties as to proposed conditions I released the applicants on the following special conditions:
(a) In relation to AP:
AP be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Children’s Court on 1 December 2020 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.
2. He reside at an address known to the Court and the police with his mother [redacted] or he reside at an address known the Court and the police with his father [redacted], and he notify the informant of intention to reside at his father’s address. He not change either of those addresses without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent/guardian or nominee of Youth Justice.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. 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 (Vic) without lawful authorisation under that Act.
6. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
7. He not contact, directly or indirectly, the co-accused, being ST, IT, NT, VN, JR, AK, CN, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
8. He engage in any school based programs as arranged and directed by Youth Justice.
9. He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.
10. He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
11. He obey all lawful directions of Youth Justice.
12. He attend and comply with all requirements of the Youth Justice Intensive Bail program.
13. He not access or use any form of social media.
14. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
15. He not leave the State of Victoria.
16. He reappear before the Court for judicial monitoring to review his compliance with this order at 10:00am on 4 February 2021, and any further dates this Court appoints during the course of this order.
(b) In relation to IT:
IT be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Children’s Court on 1 December 2020 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.
2. He reside at an address known to the Court and the police in Victoria, and not change that address without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent/guardian or nominee of Youth Justice.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. 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 (Vic) without lawful authorisation under that Act.
6. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
7. He not contact, directly or indirectly, the co-accused, being ST, AP, DP, NT, VN, JR, AK, CN, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
8. He engage in any school based programs as arranged and directed by Youth Justice.
9. He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program or when attending his church youth group with his brother and/or sister.
10. He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
11. He obey all lawful directions of Youth Justice.
12. He attend and comply with all requirements of the Youth Justice Intensive Bail program.
13. He not access or use any form of social media.
14. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
15. He not leave the State of Victoria.
16. He reappear before the Court for judicial monitoring to review his compliance with this order at 10:00am on 4 February 2021, and any further dates this Court appoints during the course of this order.
(c) In relation to NT:
NT be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Children’s Court on 1 December 2020 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.
2. He reside at an address known to the Court and the police, and not change that address without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent/guardian or nominee of Youth Justice.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. 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 (Vic) without lawful authorisation under that Act.
6. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
7. He not contact, directly or indirectly, the co-accused, being ST, IT, DP, AP, VN, JR, AK, CN, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
8, He engage in any school based programs as arranged and directed by Youth Justice.
9. He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.
10. He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
11. He obey all lawful directions of Youth Justice.
12. He attend and comply with all requirements of the Youth Justice Intensive Bail program.
13. He not access or use any form of social media.
14. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
15. He not leave the State of Victoria.
16. He reappear before the Court for judicial monitoring to review his compliance with this order at 10:00am on 4 February 2021, and any further dates this Court appoints during the course of this order.
(d) In relation to DP:
DP be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Children’s Court on 1 December 2020 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.
2. He reside at an address known to the Court and the police with his mother [redacted] or he reside at an address known the Court and the police with his father [redacted], and he notify the informant of intention to reside at his father’s address. He not change either of those addresses without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent/guardian or nominee of Youth Justice.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. 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 (Vic) without lawful authorisation under that Act.
6. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
7. He not contact, directly or indirectly, the co-accused, being ST, IT, NT, VN, JR, AK, CN, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
8. He engage in any school based programs as arranged and directed by Youth Justice.
9. He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.
10. He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
11. He obey all lawful directions of Youth Justice.
12. He attend and comply with all requirements of the Youth Justice Intensive Bail program.
13. He not access or use any form of social media.
14. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
15. He not leave the State of Victoria.
16. He reappear before the Court for judicial monitoring to review his compliance with this order at 10:00am on 4 February 2021, and any further dates this Court appoints during the course of this order.
(e) In relation to JR:
JR be admitted to bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Children’s Court on 1 December 2020 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.
2. He reside at an address known to the Court and the police with [redacted] or he reside at an address known to the Court and the police with his [redacted], and he notify the informant of intention to reside at his father’s address. He not change either of those addresses without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 7:00am each day for the duration of bail, unless in the company of a parent/guardian or nominee of Youth Justice.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. 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 (Vic) without lawful authorisation under that Act.
6. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
17. He not contact, directly or indirectly, the co-accused, being ST, IT, DP, NT, VN, AP, AK, CN, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.
7. He engage in any school based programs as arranged and directed by Youth Justice.
8. He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.
9. He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
10. He obey all lawful directions of Youth Justice.
11. He attend and comply with all requirements of the Youth Justice Intensive Bail program.
12. He not access or use any form of social media.
13. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
14. He not leave the State of Victoria.
15. He reappear before the Court for judicial monitoring to review his compliance with this order at 10:00am on 4 February 2021, and any further dates this Court appoints during the course of this order.
---
2
0
0