Re AZ
[2023] VSC 648
•26 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0249
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by AZ |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2023 |
DATE OF RULING: | 26 October 2023 |
CASE MAY BE CITED AS: | Re AZ |
MEDIUM NEUTRAL CITATION: | [2023] VSC 648 |
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CRIMINAL LAW – Bail – Applicant a 15 year old child – No prior convictions – Charges of armed robbery, aggravated assault, theft and committing an indictable offence whilst on bail – Support of Youth Justice bail support services – Whether exceptional circumstances – Whether an unacceptable risk – Bail granted with conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 12 – Children, Youth and Families Act 2005 (Vic), ss 3, 346, 356I, 534.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | D Zajd | Victoria Legal Aid |
| For the respondent | K McGregor | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
This is an application for bail made by a 15 year old child. On 13 October 2023, the applicant (“AZ”)[1] was arrested and charged with 1 count of armed robbery, 1 count of aggravated assault, 1 count of theft and 2 counts of committing an indictable offence whilst on bail. The charges relate to an incident which occurred on 11 October 2023 in Pakenham, Victoria.
B. Background
[1]A pseudonym has been used in this ruling to protect the identity of the applicant: compare Children, Youth and Families Act 2005 (Vic), s 534(1)(a)(ii).
B.1 Alleged offending
At approximately 2.57pm on 11 October 2023, the victim of the alleged offending was sitting outside a group of shops on Henry Street in Pakenham when 2 males wearing hooded jumpers and face masks approached the victim and demanded that he hand over his mobile phone. Closed-circuit television footage from a nearby shop shows that when the victim refused to hand over his mobile phone, the 2 males kicked the victim several times in the head and body and repeated their demands. The male later identified by police as AZ demanded that the victim logout of his Apple iCloud account on his mobile phone. The other perpetrator then produced a large kitchen knife which he had been concealing in his pants. The victim subsequently handed over his mobile phone and the perpetrators fled the scene.
On 13 October 2023, a search warrant was executed at AZ’s residence. Police seized several items of clothing which matched the clothing worn by the perpetrator identified as AZ in the closed-circuit television footage obtained. AZ was arrested and conveyed to Narre Warren Police Station for interview. AZ was then charged by Senior Constable Lyons with the above listed charges,[2] and was remanded in custody.
[2]See par 1 above.
B.2 Procedural history
On 19 October 2023, AZ made an application to this court for a grant of bail after having been denied bail in the Children’s Court of Victoria at Dandenong on the same day. Bail was originally refused on the basis that AZ presented an unacceptable risk of reoffending.
AZ is currently being held at the Melbourne Youth Justice Centre in Parkville. The proceeding is next listed for mention in the Children’s Court of Victoria at Dandenong on 9 November 2023. AZ has no criminal record, however, at the time of the alleged offending he was on bail in relation to 8 matters (some of which involved numerous charges), and charged on summons in relation to several other matters. A number of those charges are the subject of an agreed application for diversion also listed on 9 November 2023 in the Children’s Court of Victoria at Dandenong.
AZ’s co-accused has entered into a consolidated plea for 77 charges. Diversion is not being considered in respect to the charges faced by AZ’s co-accused.
B.3 Outstanding matters
As at the date of this hearing, AZ has 14 outstanding matters before the Children’s Court, 10 of which are listed for a diversion application on 9 November 2023. If diversion is granted and AZ completes the diversion program, the court must discharge him without a finding of guilt.[3]
[3]Children, Youth and Families Act, s 356I(1)(b).
The charges the subject of the agreed application for diversion are as follows:
(1)In relation to the informant Senior Constable Mulvaney: 3 counts of burglary; 3 counts of committing an indictable offence whilst on bail; theft; theft from a shop; 4 counts of theft of a motor vehicle; and 2 counts of handling stolen goods.
(2)In relation to the informant Detective Senior Constable Tucker: theft of a motor vehicle; and committing an indictable offence while on bail.
(3)In relation to the informant Detective Senior Constable Lyons: burglary; theft; and criminal damage.
(4)In relation to the informant Detective Senior Constable Vallas: theft of a motor vehicle.
(5)In relation to the informant Senior Constable Gray: affray; theft; and theft of a motor vehicle.
(6)In relation to the informant Detective Senior Constable Budge: theft of a motor vehicle; and committing an indictable offence whilst on bail.
(7)In relation to the informant Constable Radunic: theft of a motor vehicle; 2 counts of theft; theft from a shop; and 2 counts of committing an indictable offence whilst on bail.
(8)In relation to the informant Senior Constable Matthews: theft of a motor vehicle.
(9)In relation to the informant Senior Constable Bennett: theft of a motor vehicle; unlicensed driving; and committing an indictable offence whilst on bail.
(10)In relation to the informant First Constable Cassidy: theft of a motor vehicle; and theft.
AZ is facing charges in relation to 3 other contested matters which are also listed for mention on 9 November 2023 in the Children’s Court of Victoria at Dandenong:
(1)On 23 October 2022, AZ and 2 associates allegedly stole a myki card and mobile phone from a member of the public at Pakenham train station. Police arrived at the scene shortly after the incident and AZ returned the stolen items to the victim. AZ has been charged with robbery.
(2)At approximately 4.00am on 12 February 2023, AZ allegedly entered the home of a man who was asleep in his bedroom with his wife and 6 month old child in Beaconsfield, Victoria. The victim observed a male going through his bedroom drawers and confronted the perpetrator. The male, believed to be AZ, allegedly exited the house and got into a vehicle that was waiting outside. A handbag which had been removed from inside the house was found by police on the nature strip of a neighbouring property. A latent fingerprint found on the handbag was identified as belonging to AZ. AZ has been charged with aggravated burglary.
(3)At approximately 5.10am on 4 May 2023, AZ and 4 other accused allegedly attended a residential address in Glen Waverley, Victoria, entered the property and stole 2 motor vehicles whilst the victim was sleeping. Closed-circuit television footage obtained by police shows AZ in both vehicles on the same date. AZ has been charged with 11 offences including home invasion and 5 counts of committing an indictable offence whilst on bail.
In addition, AZ is facing charges in relation to 1 further matter not the subject of the application for diversion which is listed for a contested hearing on 6 December 2023. AZ is charged with 2 counts of assaulting an emergency worker on duty following a welfare check conducted at his residence on 13 January 2023.
B.4 Personal circumstances
Prior to the date of the alleged offending the subject of this application, AZ resided with his father and older brother in a transitional housing management home funded by Westernport Accommodation and Youth Support Services. His mother is currently an inpatient at a medical facility under compulsory mental health treatment.
On 30 June 2023, AZ was placed on an interim accommodation order to reside with his father, which was extended on 11 August 2023 and is returnable on 2 November 2023 for conciliation conference. A protection application was issued by Child Protection Services following reports of AZ’s increasing contact with police and his family’s significant housing concerns.
On 29 July 2023, AZ was the victim of a stabbing which resulted in him requiring hand surgery. There are contrary accounts about whether the attacker was known to AZ. AZ sought refuge at the Children’s Court of Victoria at Dandenong after the incident occurred and was immediately taken to hospital. AZ requires ongoing medical attention for the injury, including rehabilitation. AZ has also recently consented to assessment for a mental health care treatment plan.
This is AZ’s second time in custody, having previously spent 9 days on remand at Melbourne Youth Justice Centre in Parkville in April 2023. It is the first time that AZ has been in custody since the stabbing incident. His care team have expressed concerns about his ability to cope in the remand environment given his recent experience of trauma.
C. Legal principles
Pursuant to the Children, Youth and Families Act, the Bail Act 1977 (Vic) applies to the present application except insofar as it is inconsistent with that Act.[4]
[4]Section 346(6).
AZ has been charged with offences in Schedule 2 of the Bail Act,[5] alleged to have been committed whilst on bail for other Schedule 2 offences. It is common ground that AZ must therefore demonstrate that exceptional circumstances exist to justify the grant of bail.[6] If the court is so satisfied, it must then consider whether the applicant presents an unacceptable risk of the kind referred to in section 4E(1)(a) of the Bail Act.
[5]Namely, armed robbery and theft alleged to have been committed whilst on bail for other indictable offences: see Bail Act sch 2, items 1(a), 22(a).
[6]Bail Act, ss 4AA(2)(c)(i), 4A(1).
If the court is satisfied there is an unacceptable risk that AZ, if released on bail, would (relevantly) endanger the safety or welfare of any person or commit an offence while on bail, then the court must refuse bail notwithstanding that AZ has satisfied the exceptional circumstances test.[7] The burden of proving that AZ poses an unacceptable risk rests with the prosecution.[8]
[7]Ibid, s 4E(1).
[8]Ibid, s 4E(2).
In considering whether exceptional circumstances exist and whether AZ poses an unacceptable risk of the kind referred to, the court must take into account the surrounding circumstances including but not limited to those in section 3AAA of the Bail Act,[9] namely:
[9]Ibid, ss 4A(3), 4E(3)(a).
…
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
...
(g)the accused’s personal circumstances, associations, home environment and background;
(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;
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
In assessing the risk, the court must take into account whether there are conditions of bail that may be imposed to mitigate the risk.[10] In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B of the Act including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.
[10]Ibid, s 4E(3)(b).
C.1 Exceptional circumstances
The phrase “exceptional circumstances” is not defined in the Bail Act. It has been held that in order to be “exceptional” the circumstances relied upon must take the case out of the normal so as to justify the admission of bail to the applicant.[11] However, it is not an impossible standard to reach. As observed in Woods v Director of Public Prosecutions:[12]
The Bail Act does not define “exceptional circumstances”. Reflecting the ordinary and natural meaning of these words, it has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”. The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances … As we have seen, it is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”. This “appears to be a question of degree” in each individual case.
[11]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA).
[12](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J) and the cases there cited. Substantial reforms to the Bail Act were introduced on 1 October 2018, however, the expression “exceptional circumstances” remains.
C.2 Unacceptable risk
The notion of unacceptable risk contained within the Bail Act does not concern merely any risk of reoffending. Rather, the question is whether such a risk is unacceptable.[13] In HA v The Queen,[14] the Victorian Court of Appeal observed that where the period of time on remand would likely exceed the sentence ultimately imposed, such a factor is of particular significance to the determination of whether both the exceptional circumstances and unacceptable risk tests are made out:[15]
It is, nevertheless, a consideration of significant importance both in deciding whether “exceptional circumstances exist that justify the grant of bail” and in considering whether such risk as an offender would present if released on bail is acceptable. Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant’s age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventive detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.
In the absence of any specific statutory provision, preventative detention is alien to the fundamental principles that underpin our justice system. This is an issue of particular concern in relation to young offenders who are denied bail.
[13]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[14][2021] VSCA 64.
[15]Ibid, [63]-[64] (Maxwell P and Kaye JA).
C.3 Children
AZ is a child[16] and as such the court is also required to take into account the matters listed in section 3B(1) of the Bail Act, namely:
[16]Pursuant to s 3 of the Bail Act, “child” has the same meaning as the definition found in the Children, Youth and Families Act. In the case of a person who is alleged to have committed an offence, a child is defined as a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years: see Children, Youth and Families Act, s 3.
…
(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.
As outlined by T Forrest J in Re JO,[17] the age of the applicant is a significant factor in establishing exceptional circumstances:[18]
Whilst the burden of demonstrating “exceptional circumstances” is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of “exceptional circumstances” in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the “exceptional circumstances” test, a different exercise in the case of a child.
[17][2018] VSC 438.
[18]Ibid, [14]. In relation to children seeking bail on the basis of exceptional circumstances see also: Re GA [2022] VSC 148 (Fox J); Re AM [2020] VSC 569 (Tinney J); Re TP [2018] VSC 748 (Champion J).
In making a determination in relation to a child, the court may take into account any recommendation or information contained in a report provided by a bail support service.[19] Bail must not be refused on the sole ground that the child does not have any, or any adequate, accommodation.[20] Further, if bail is refused, the court must remand the child in custody to appear before a court at a later date which must not be longer than a period of 21 clear days.[21]
[19]Bail Act, s 3B(2).
[20]Ibid, s 3B(3).
[21]Ibid, s 12(4).
D. Analysis
There was no real contest between the parties that exceptional circumstances exist in this case. Taking into account the surrounding circumstances, I am satisfied that exceptional circumstances exist that justify the grant of bail. Without being exhaustive, the factors that establish exceptional circumstances include:
(1) AZ is a child of 15 years of age.
(2) AZ has no criminal record.
(3)AZ has experienced significant trauma as a result of a dysfunctional and neglectful family life.
(4)There is a real possibility that if the charges the subject of this bail application are contested and AZ is found guilty, he will not receive a custodial sentence.
(5)If the contested matters listed for hearing on 9 November 2023 are not resolved,[22] the likely contested hearing date will not be until at least February 2024.
(6)The conditions currently being experienced in the youth custodial environment due to staffing issues are less than satisfactory.
(7)AZ is supported by Youth Justice in this application. A report from Youth Justice dated 25 October 2023 was provided to the court which confirmed that AZ had been assessed as being suitable for the Youth Justice supervised bail service and provided a plan for the same.
(8) Victoria Police has confirmed its ongoing support of AZ’s application for diversion listed on 9 November 2023.[23]
[22]See par 9 above.
[23]See par 8 above.
Thus, the real question to determine today is whether AZ presents an unacceptable risk of committing further offences whilst on bail or endangering the safety and welfare of any person. As I have said, the onus is on the prosecution to establish that AZ poses an unacceptable risk. The allegations made against AZ are serious in nature. The alleged offending the subject of this application for bail includes violence, theft, the use of a weapon and the involvement of a co-offender. Further, at the time of the alleged offending, AZ was subject to 8 grants of bail. I take this into account in considering the degree of confidence the court might have that AZ will comply with any conditions of bail.
In addition, there are a number of matters that elevate the nature of the risks involved. AZ has not attended school for the entirety of 2023. There is no realistic prospect of him attending a local school in the immediate future in light of his previous history and the lateness of the school year. He also has no immediate prospects of employment.
However, as outlined above,[24] I am required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk. Further, by virtue of AZ’s status as a child, I am required to consider all other options before remanding him in custody.[25] In a recent development, arrangements have been made for AZ to attend Ignatius Learning Centre, a specialist secondary school for boys who are involved with the youth justice system. This opportunity was not available at the time at which AZ applied for bail in the Children’s Court of Victoria at Dandenong on 19 October 2023.
[24]See par 19 above.
[25]Ibid, s 3B(1)(a). See also Re GA [2022] VSC 148, [61] (Fox J), citing DPP v SE [2017] VSC 13, [38] (Bell J).
In relation to the curriculum at Ignatius Learning Centre, Imogen Cowan, the head of engagement at the centre, gave evidence that a diversionary approach to education is taken in order to keep boys between the ages of 15 to 17 out of custody. The centre describes itself as providing a safe, holistic and therapeutic school environment that promotes the development of each young person including intellectual, physical, social, emotional, cultural and spiritual development. The school is said to employ highly skilled registered teachers and multidisciplinary staff to provide high quality, senior secondary education to assist students with completing the Victorian Certificate of Applied Learning.
Ms Cowan informed the court that she had a discussion with AZ about attending Ignatius Learning Centre prior to giving evidence. She deposed that, based on her assessment, AZ was suitable for enrolment at Ignatius Learning Centre and could start almost immediately. A letter from the principal of Ignatius Learning Centre confirmed that AZ could start tomorrow if he were released from custody today. Although there is a significant distance between the campus in Richmond and AZ’s residence in Pakenham, Ms Cowen confirmed that transport could be arranged as required and outreach measures could also be made available. The evidence given by Ms Cowan was that AZ has agreed to attend Ignatius Learning Centre at least 2 days a week initially.
Further, AZ has indicated a willingness to participate in a range of supervised activities. These activities include attending appointments with Youth Justice twice per week;[26] enrolling in short vocational training courses facilitated by Youth Justice to increase his prospects of employment, namely, a white card construction induction course, a traffic management course, and a first aid training course; participating in a youth crime prevention program known as “PIVOT” which supports young people aged between 10 and 23 years of age who have had repeated contact with the justice system; and engaging in regular physical activity by attending a local gym. AZ will also be supported by Child Protection Services and the regional education Children’s Court liaison officer whilst on bail.
[26]Under previous bail plans, AZ was only required to attend appointments with Youth Justice once per week.
AZ has not previously been offered this level of intensive bail support services. I place considerable weight on the Youth Justice report and AZ’s proposed enrolment at Ignatius Learning Centre in reaching my decision.
Furthermore, in recent times AZ has experienced difficulties in custody. I accept that the time AZ has spent in custody increases the risk of the normalisation of criminal behaviour and stigmatisation, as well as further disruption to his already disrupted education.[27] AZ now has a real incentive to comply with bail conditions to avoid the risk of being returned to custody if he breaches bail again.
[27]Bail Act, s 3B(1)(d) and (e).
In the circumstances, I am of the view that, with appropriate conditions, the risk presented by AZ is substantially ameliorated and is not an unacceptable risk. The conditions of bail will place significant restrictions on AZ but these conditions are necessary to ensure that the risk of re-offending whilst on bail or endangering the safety of any person is minimised.[28]
[28]Ibid, s 3B(1)(g).
E. Bail conditions
Accordingly, I will admit AZ to bail on his own undertaking, subject to the following conditions, namely that he must:
(1)Reside at [redacted] (“the Residence”).
(2)Remain at the Residence between 8.00pm and 7.00am (“the Curfew Hours”) each day for the duration of bail unless in the company of his father or a Youth Justice worker or nominee of Youth Justice.
(3)Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.
(4)At 9.00am on 27 October 2023, attend Ignatius Learning Centre and attend the Ignatius Learning Centre at least 2 days per week thereafter between the hours of 9.00am and 3.30pm.
(5)At 3.40pm on 30 October 2023, and for so long thereafter until attended to, attend his general practitioner’s rooms to obtain a mental health care plan.
(6)By 4.00pm on 3 November 2023, provide the court with evidence of attendance on his general medical practitioner to obtain a mental health care plan.
(7)By 4.00pm on 1 November 2023, provide the court with evidence of enrolment in vocational training courses facilitated by Youth Justice on 31 October 2023, 1 November 2023 and 9 November 2023.
(8)Attend meetings with Youth Justice twice per week between the hours of 9.00am and 5.00pm, Monday to Friday, as directed by Youth Justice.
(9)Attend and comply with all lawful directions of the Youth Justice supervised bail service.
(10)Not use a drug of dependence as listed under the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(11)Not consume alcohol.
(12)Not drive a motor vehicle.
(13)Not be present in any stolen motor vehicle.
(14)Not be in the company of [redacted].
(15)Not contact, directly or indirectly, any witness for the prosecution in respect to the charges the subject of this application, save for the prosecution.
(16)Attend the Children’s Court of Victoria at Dandenong at 10.00am on 9 November 2023, and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
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