Re B H
[2016] VSC 369
•28 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0074
| B H | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 June 2016 |
DATE OF JUDGMENT: | 28 June 2016 |
CASE MAY BE CITED AS: | Re B H; An application for Bail |
MEDIUM NEUTRAL CITATION: | [2016] VSC 369 |
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CRIMINAL LAW – Application for bail – Counts of theft of motor vehicle, theft, aggravated burglary, arson, assault police, resist arrest, reckless conduct endanger serious injury and other offences – Applicant seventeen years of age at the time of the offending – Applicant in show cause position – Extensive recent criminal history including breach of bail and parole conditions – Strong causal connection between offending and methylamphetamine abuse – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Payne | Victorian Legal Aid |
| For the Respondent | Mr S Elley | Mr J Cain, Solicitor for Public Prosecution |
HIS HONOUR:
Introduction
The applicant is charged with seven counts of theft of a motor vehicle, eight counts of theft, two counts of aggravated burglary, arson, two counts of assault police, resist arrest, two counts of reckless conduct endanger serious injury, fraudulent use of a number plate, three counts of burglary and two counts of unlicensed drive. Briefly, the facts alleged around these charges are as follows. On 2 April 2016 the applicant is alleged to have gained entry to a motor vehicle and to have stolen a small amount of loose change. On 3 April the applicant is alleged to have gained entry to and stolen a Nissan Utility valued at $18,000. On either 4 or 5 April the applicant, in company with a co-offender, is alleged to have gained entry to a residential premises at Beaufort Avenue, Alfredton, to have stolen mobile phones and other items including two sets of motor vehicle keys, to have then left the premises and gained entry to a Peugeot motor vehicle and a Mercedes motor vehicle each valued at $45,000, and to have driven away in those vehicles. The Alfredton premises was occupied at the time the applicant gained access to it. On 7 April the applicant was observed by police driving the stolen Nissan Utility which was at the time bearing the registration plates belonging to the stolen Peugeot motor vehicle. The applicant has never held a driver’s license. On 8 or 9 April 2016 the applicant is alleged to have gained entry with a co-offender to a premises at Morres Street, Ballarat. At the time the premises was occupied. The applicant and his co-accused located two sets of motor vehicle keys, left the premises, gained entry to the two motor vehicles, one of which was a Kia Sportage, and drove off with them. Attached to one of the motor vehicles was a tradesperson’s trailer with approximately $15,000 worth of assorted tools.
On 9 April the tradesperson’s trailer was located off Foos Lane in the Canadian Forest. Near to the trailer was a Holden Sedan motor vehicle which had been reported stolen on 7 April, and which had been set on fire and was still burning when police arrived on 9 April.
On 9 April 2016 the applicant is alleged to have gained entry to two parked vehicles on White Swan Road, Invermay by smashing a window. Items were stolen from each vehicle. Upon the applicant’s arrest on 10 April he was found in possession of items from one of the two vehicles.
On 10 April the applicant was apprehended driving the Kia Sportage motor vehicle stolen the previous day from the premises at Morres Street, Ballarat. When approached by police at a Caltex service station the applicant drove the vehicle at two police officers causing them to move out of the way to avoid being struck, assaulted both police officers by kicking, and resisted arrest.
There are earlier charges of burglary and theft from three different premises in the period 20 November 2013 to 9 September 2015 and involving the theft of property of a total value of just over $15,000.
It is conceded that the applicant is in a show cause position due to the charges of aggravated burglary.[1] Mr Payne, who appears for the applicant, accepts that this is the burden confronting the applicant on this application. The prosecution, represented by Mr Elley, contends that the applicant has failed to demonstrate why his detention in custody is not justified and further, that if released on bail, he is an unacceptable risk of committing further offences or of placing the community at risk of serious harm.
[1]Bail Act 1977 (Vic) s 4(4)(c).
The applicant
The applicant was born on 18 June 1998 and is now aged 18 years. He has an extensive recent criminal history which I summarise as follows:
(a) In April 2013 the applicant was dealt with at the Ballarat Children’s Court on charges including unlicensed driving, dealing with property suspected as proceeds of crime, drive a vehicle without number plates and drive in a manner dangerous. Without conviction the applicant was placed on probation for a period of 12 months.
(b) On 12 May 2014 the applicant was dealt with for breach of the probation order.
(c) On 7 July 2014 the applicant was dealt with for dangerous driving while pursued by police, theft, theft of a motor vehicle, burglary, attempted burglary, unlicensed driving, fail to answer bail and contravene a condition of bail. He was sentenced to a period of 20 days’ detention in a youth justice centre, and a Youth Supervision Order for a period of 12 months.
(d) On 13 October 2014 the applicant was dealt with for offences including attempt to commit indictable offence, fail to answer bail, theft of a motor vehicle, go equipped to steal, unlicensed driving, commit indictable offence whilst on bail, theft and burglary. The applicant was released on a Youth Supervision Order for a period of 12 months.
(e) On 16 February 2015 the applicant was dealt with for offences including theft of a motor vehicle, contravene a condition of bail, fail to answer bail, commit indictable offence whilst on bail, theft, and unlicensed driving. The applicant was sentenced to a period of three months’ detention in a youth justice centre with a continuing Youth Supervision Order to 15 February 2016.
(f) On 26 May 2015 the applicant was charged with possess methylamphetamine and deal with property suspected of being proceeds of crime. Forfeiture orders were made.
(g) On 10 June 2015 the applicant was dealt with for various offences including breach of Youth Supervision Order, attempt to commit indictable offence, fail to answer bail, theft of a motor vehicle, unlicensed driving, commit indictable offence whilst on bail, theft, burglary, escape from custody from police member, assault police officer, resist police officer, possess methylamphetamine. Amongst other things the applicant was ordered to attend drug and alcohol counselling, and was detained in a youth justice centre for a period of six months. It was noted in the sentencing comments that the applicant was withdrawing from a drug of addiction.
(h) On 1 December 2015 in the Melbourne Children’s Court the applicant was sentenced on four charges of theft of a motor vehicle, arson, theft, burglary, assault emergency worker on duty, use methylamphetamine, reckless conduct endanger serious injury, possess controlled weapon without excuse and others to a total term of nine months detention. Pre-sentence detention of 61 days was declared at the time of sentence. The applicant was released on parole under the supervision of the Youth Parole Board until 1 July 2016. The further offences are in breach of that parole.
The applicant relies on the following factors:
(a) What he said to be a paucity of evidence against the applicant on the charges he faces;
(b) His age and the weight that ought be given to that;
(c) The solid family support he enjoys. The applicant’s mother gave evidence before me. I regarded her as an impressive witness;
(d) The various support services available to the applicant including in particular Youth Justice Support;
(e) The likely delay in bringing the criminal charges to finalisation;
(f) The availability of employment to the applicant;
(g) The fact that the applicant has detoxified, so it is asserted, from a methylamphetamine habit after one month in custody;
(h) The time already served on remand which at the date of this application was 76 days.
The applicant was under the age of 18 years at the time of the alleged commission of the offences. By reason of the provisions of the Children, Youth and Families Act 2005 the applicant, despite now having turned 18 years of age, is a child for the purposes of this application. In the circumstances I take into account section 3B of the Bail Act 1977.
The second way in which Mr Payne sought to rely upon the applicant’s age was to emphasise that, having turned 18 years of age, the applicant would, if he re-offended for instance whilst on bail, face the prospect of significant periods of imprisonment in an adult facility. The risks associated with being in the ‘big league’, it was argued, would act as a powerful incentive against the applicant re-offending, for instance if he were granted bail. The applicant emphasised this point when giving viva voce evidence. Whilst it was easy to appreciate the logic of what was being said by the applicant and the submission made by Mr Payne, it was conceded there was no solid evidence to support the proposition being advanced. The plaintiff’s methylamphetamine addiction and recent history of very frequent offending, including while on bail and parole, does not support this submission, and accordingly I give it little weight.
Much was sought to be made by Mr Payne of the inadequacy of the brief delivered by the informant, the apparent lack of evidence supporting key allegations, and the slow response of the informant to requests made on behalf of the applicant for delivery of a more adequate and complete brief of evidence. In the end, however, it did not appear that these complaints took the matter very far, at least at this stage.
The charges which engage section 4(4)(c) of the Bail Act, and place the applicant in a show cause situation, are the two charges of aggravated burglary. Evidence in respect of those charges is circumstantial. The instance of aggravated burglary at Morres Street involved, amongst other things, the theft of the Kia Sportage and occurred on the night 8/9 April 2016. The evidence linking the applicant to that offence is the fact that he was apprehended on 10 April whilst driving the Kia Sportage. Mr Elley for the respondent argued that possession of the motor vehicle so soon after the occurrence of the offence combined with the failure of the applicant to provide any explanation means that the evidence against him is relatively strong.
Mr Elley also placed significant emphasis, in relation to the risks set out in section 4(2)(d)(i) of the Bail Act, on:
(a) The repeated history of descent into drug use, inappropriate peer association and offending including while on bail and parole. Mr Elley argued that these facts raised the unacceptable risk that the applicant would commit offences whilst on bail; and
(b) During the use of the stolen Kia by the applicant on 10 April when he was approached by police, the applicant drove the vehicle towards them, resulting in the charge of placing persons in danger of serious injury. The applicant has a history of similar conduct resulting in similar charges on which he was convicted in December 2015. I also note the offence of dangerous driving while pursued by police in July 2014. Mr Elley argued that the combination of drug use, driving vehicles, and the reaction to the approach by police clearly raised an unacceptable risk that the applicant would endanger the safety or welfare of members of the public if bail were granted.
The prosecution carries the burden of proving that an unacceptable risk exists. In this case I consider they have discharged that burden.
It is clearly important that the applicant have access to, and undertake, appropriate treatment for his drug addiction. In appropriate circumstances it is desirable that the applicant be given the opportunity to commence treatment while on bail. I am unable to grant the applicant that opportunity in this case.
It seemed to be accepted by each counsel and by each witness, including the applicant, that his history of offending was directly related to his use of methylamphetamine. The applicant’s mother acknowledged that if he were released he would likely relapse into ‘ice’ use, though she modified this answer by indicating her son’s need to ‘…go to detox or rehab or something.’
Mr Murphy, who gave evidence on this application, has been the applicant’s youth justice case manager for approximately two years. He gave evidence that he would continue in that role until the expiration of parole on 1 July, and then beyond that date subject to any bail conditions imposed. That would involve amongst other things the applicant attending with him twice weekly. He has made tentative arrangements for the applicant to undergo a two week youth residential detox program at a local facility, Tabor House, though those arrangements have not yet been finalised. He has also made some arrangements for the applicant to obtain part time employment with an associate of the applicant’s father. He anticipated the applicant would continue involvement with community based drug and alcohol worker Ms Stewart of Uniting Care Drug and Alcohol Youth Outreach Program. Mr Murphy confirmed that when the applicant was not using methylamphetamine his engagement with the various programs was exceptional, and his attitude appropriate. It was only when he was ‘using’ that he was committing offences. It was Mr Murphy’s view that the risks for the applicant involved drug use and negative peers. Mr Murphy said that the impetus for the applicant’s involvement in drug rehabilitation programs has come more from him than the applicant in the past, and that in the past the applicant had stated that he had not needed or required it. The applicant is now more willing given that he had been in this situation for the last two years, and Mr Murphy thought his commitment was better now.
Mr Murphy confirmed that during past periods of detention the applicant had expressed a desire to be abstinent from drugs and not commit crime. He acknowledged that this commitment was stronger during periods the applicant was in custody. Mr Murphy considered the applicant had strong rehabilitative prospects, but the risk of relapsing into drug use was a ‘massive barrier’. Mr Murphy conceded there was not much difference, on this occasion, from the opportunities available to the applicant for rehabilitation in the past. Mr Murphy was an impressive and very sensible witness.
What was plain from the evidence of Mr Murphy and the applicant’s mother was the applicant’s significant drug addiction, the very strong causal connection between drug use and offending, and the rehabilitative avenues available to the applicant, and the fact that the course of the applicant’s life will only change when he shows the desire and discipline to successfully engage with those services. I accept that the applicant, in his present situation in custody, currently has a real intention to change. However, I also accept that this has been the situation in the past, that there has to date been very limited engagement by the applicant with appropriate rehabilitation services, and that there remains a very significant risk of the applicant relapsing into drug use and offending if he were granted bail.
In support of the application, Mr Payne raised the availability of employment to the applicant. Mr Murphy confirmed that he had made very recent contact with an associate of the applicant’s father who confirmed some part time employment would be available if the applicant were granted bail. I do not regard this issue as significant. A similar sort of employment has been available to the applicant in the past. This is only a very recent arrangement, and there is very little detail available in relation to it. Whether the applicant successfully engages in employment will depend upon other issues, such as drug use and offending, which are clearly more central to this application.
The family support, particularly that provided by the applicant’s mother but also by his father, is certainly to be applauded. However that support has been provided in the past, and has not led to any change in the applicant’s behaviours.
A significant issue was raised by Mr Payne in relation to delay. As stated the applicant has already served about 80 days on remand. Mr Payne submitted that if ultimately the applicant were not found guilty of the most serious charges of aggravated burglary then, depending on the speed of progress towards resolution of these matters, there would be a significant risk of the applicant serving ‘dead time’ on remand, that is time beyond the length of a sentence on the charges on which he is ultimately convicted. During submissions Mr Elley obtained instructions that a contest mention date was available in Ballarat on 4 July, and that the court could accommodate a two day contested hearing, if it were required, on 18 August. Mr Payne expressed real doubt that matters could proceed so quickly and efficiently, particularly having regard to the lack of material provided to date by the informant to support the charges against the applicant. To an extent I share the doubts expressed by Mr Payne. However, for the purposes of this application, I take Mr Elley at his word, and accept that the charges which the applicant faces may be able to proceed to contest mention on 4 July and, if necessary, contested hearing on 18 August.
In the circumstances of this case I accept the arguments raised by Mr Elley detailed in paragraph 13 above. I am satisfied that the applicant represents an unacceptable risk of (a) committing further offences if released on bail; and (b) endangering the safety or welfare of members of the public if released on bail. I cannot conceive of any conditions that would act to reduce those risks to an acceptable level. It follows that I am not satisfied the applicant has shown cause why his continued detention in custody is unjustified.
However, if the charges against the applicant cannot proceed to finalisation in the time frame suggested by Mr Elley then further delay might well provide justification for re-visiting the issue of remand of the applicant.
I have taken into account the applicant’s age and, in particular, the factors listed in section 3B of the Bail Act. However I am positively satisfied that if released on bail at this time the applicant would present an unacceptable risk both of committing further offences while on bail and of endangering the safety or welfare of members of the public. In the circumstances the application is refused.
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