Re BA
[2018] VSC 665
•2 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0278
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by BA |
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JUDGE: | TINNEY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2018 | |
DATE OF JUDGMENT: | 2 November 2018 | |
CASE MAY BE CITED AS: | Re BA | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 665 | Second revision 9 November 2018 |
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CRIMINAL LAW – Bail – 14 year old applicant - Aggravated home invasion and other charges – Young age of applicant an important consideration – Requirement to show existence of exceptional circumstances – Whether exceptional circumstances established – Whether unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3A, 3B, 4, 4AA, 4A and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Swiney | Victoria Legal Aid |
| For the Respondent | Mr A Austin | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
Introduction
The applicant is a 14 year old child who identifies as being an Aboriginal person. He applies for bail in respect of charges he faces of aggravated home invasion, aggravated burglary and attempted aggravated burglary arising from incidents which took place on 7 August 2018. It is agreed between the parties that as the offence of aggravated home invasion is a Schedule 1 offence under the Bail Act 1977 (‘the Act’), bail must be refused unless I am ‘satisfied that exceptional circumstances exist that justify the grant of bail.’[1]
[1]Bail Act 1977, s 4A(1A).
The applicant was arrested on these charges on 11 August 2018. Two previous applications for bail in the Children’s Court have failed, the first because the applicant failed to establish exceptional circumstances, and the second because new facts and circumstances were not established. The applicant has now been in custody 83 days, up to and including today.
The alleged offending
The applicant has a troubling recent history of offending which I will turn to later in these reasons, but the offending now alleged against him represents a substantial step up in seriousness.
At about 2:00am on the morning of Tuesday 7 August 2018, Bryan Matthew, a 60 year-old invalid pensioner who had had a kidney transplant the previous year, and his 61 year-old wife Janet, were asleep in their home in Corio when Mrs Matthew was awoken by the noise of banging at the front door of the house. She turned on the light and almost immediately the front door was kicked in by a co-offender of the applicant named DR. It is alleged that DR, another co-offender named AA and the applicant all entered the premises. Mrs Matthew saw them upon their entry and noticed that one and possibly two of the intruders were carrying items which looked like Tasers.
The intruders confronted Mrs Matthew, the applicant repeatedly screaming at her, ‘Where are the keys?’, in apparent reference to the keys to their motor vehicle which was parked outside. The applicant then rummaged through the handbag of Mrs Matthew. She told the offenders that her husband had the keys. They asked where he was and Mrs Matthew told them he was down the hallway. DR and the applicant then went in search of Mr Matthew, who had been sleeping in another part of the house, but by this time was awake. As he walked out of the room, he saw two males coming towards him, one of them holding a Taser. Both were wearing dark clothing with hoods covering their faces, and gloves. It is alleged that the applicant was the male without the Taser.
DR demanded the car keys from Mr Matthew and then kicked him with a karate-style kick, leading to Mr Matthew falling backwards to the floor and hitting his head. He sustained a gash which later required 13 stitches. DR then stood over Mr Matthew while the applicant said, ‘Get the keys, get the keys.’ DR then pushed the Taser into the chest of Mr Matthew and operated the device, so that it emitted a clicking noise. Mr Matthew, who was wearing two jackets at the time, did not receive any shock.
While this attack had been taking place, Mrs Matthew had gone into the kitchen, and she emerged with a carving knife. She screamed at the intruders and told them to get out of the house. The applicant and the others then fled the scene.
All offenders were arrested in the ensuing days, the applicant being arrested by police on 11 August 2018. He was interviewed by the police and denied involvement in the offending. He claimed he had been at home asleep at the time, and denied any knowledge of the co-offenders.
The applicant, DR, AA, and a fourth person, AT, are all facing charges in relation to the home invasion. None of the co-offenders has been released on bail.
The criminal background of the applicant
As mentioned above, the applicant has a troubling history of offending for one so young. The offending is set out in the Criminal Record exhibited to the Affidavit Opposing Bail. He has accrued prior findings of guilt in the Children’s Court from offending carried out from the age of twelve. There have been multiple court appearances, resulting in a number of what might be viewed as quite lenient dispositions. One of the prior findings of guilt concerned a charge of aggravated burglary, which was one of a number of charges for which the applicant was ordered to be detained in a Youth Residential Centre for a period of 100 days at the Geelong Children’s Court on 19 July 2018.
Such dispositions as the applicant has received from courts over his time of offending have, it seems, been quite unable to control his escalating criminal behaviour. He has seemingly shown an unwillingness to abide by court orders, having breached Probation on multiple occasions, and also having breached a Youth Supervision Order. He has shown no greater respect for the strictures of bail. He has accrued no fewer than nine separate findings of guilt for committing an indictable offence whilst on bail.
At the time of the offending before this Court, the applicant was already on bail for other alleged offending. This concerned charges of criminal damage and assaulting an emergency worker on duty. On 19 July 2018, the bail which had previously been granted to the applicant on those charges was extended until 8 August 2018. The bail had stringent conditions attached to it, including a curfew condition requiring the applicant not to leave his home between 7.00pm and 7.00am.
In addition to all of the above, the applicant was on a 12 month Youth Supervision Order at the time of the alleged offending. This order had been made by the County Court at Geelong on 30 August 2018.
The law
Section 1B of the Act reads, in part, as follows:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 3A of the Act reads:
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including –
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b) any other relevant cultural issue or obligation.
Section 3B(1) of the Act reads:
(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.
Section 4 of the Act reads:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA of the Act sets out circumstances in which a 2 step test applies to the consideration of a grant of bail. Subsection (1) dictates that the ‘exceptional circumstances’ test applies to a decision whether to grant bail to a person accused of a Schedule 1 offence.
Section 4A of the Act has application where the ‘exceptional circumstances’ test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
Subsections (2) and (3) of section 4A indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[2]
[2]Defined in s 3AAA of the Act.
Section 4E of the Act reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(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; and
(b) the risk is an unacceptable risk.
(2) The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
The applicant’s contentions
It was submitted on behalf of the applicant that a combination of matters is sufficient to show the existence of exceptional circumstances. These matters, as set out in the affidavit in support of bail, and in some cases expanded upon in Court, are:
(a)the applicant is 14 years old;
(b)the applicant is Aboriginal;
(c)the applicant has spent 83 days in custody;
(d)the applicant is well engaged with support services in the community;
(e)the applicant can receive psychological therapy in the community that is not available in custody;
(f)the applicant has strong family and community support including stable accommodation with his mother;
(g)the police case in relation to the matter has resolved to a plea to a lesser charge of home invasion;
(h)the applicant is contesting some of the facts, which will lead to the matter not being heard until 15 November 2018; and
(i)the applicant has no history of failing to answer bail.
In respect of the first two matters mentioned above, Ms Swiney for the applicant referred to ss 3A and 3B of the Act as being of great importance. She referred to the decision of Re JO,[3] in which Justice Forrest, in dealing with a bail application by a 16 year old applicant who was in the position of having to show exceptional circumstances, stated:
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 very 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.[4]
[3][2018] VSC 438.
[4]Ibid [14].
In respect of the days the applicant has already been in custody, and the relatively short time until these charges might be finalised, Ms Swiney submitted that for a young indigenous child such as the applicant, every additional day in custody is significant. That is undoubtedly true, but the fact that the contested plea hearing of the charges is scheduled to take place as soon as 15 November 2018 distinguishes this case from many which come before the Court where a denial of bail would necessarily require the applicant to be in custody for a substantial period of time before resolution of the charges faced.
In respect of the assertion of the applicant being well engaged with support services in the community, Ms Swiney made it clear that what was really being relied upon was the availability of such services.
Evidence was called on behalf of the applicant from Ms Rebecca Miller, a Koori Intensive Support Practitioner from Youth Justice. She has known the applicant since before his current incarceration. She provided a Progress Report dated 15 October 2018 in respect of the applicant. In Court, she gave evidence about the programmes currently available to the applicant both within and outside the custodial setting. She indicated that were he to be released on bail, services would be immediately made available to the applicant, including a position at school. When asked about the behaviour of the applicant since he has been in custody, she said this period of remand had seemingly been more difficult for him than previous periods of remand and his behaviour had been ‘more difficult’. She indicated there have been incidents in which the applicant has allegedly caused criminal damage and been involved in assaults since in custody. Indeed, in her report of 15 October 2018, Ms Miller indicated:
BA has been involved in five separate incidents of alleged assault of other young people and staff and numerous other incidents of disruptive behaviour and criminal damage. As a result of these behaviours, BA has been placed in isolation.
Further on in the report, Ms Miller stated:
Given this alleged re-offending has occurred whilst he was subject to supervised bail, Youth Justice hold significant concerns regarding BA’s ability to comply with further bail conditions. Youth Justice continue to hold concerns that despite the significant supports being available to BA in the community, BA has been unable to demonstrate an ability or desire to cease his involvement in offending behaviour. This is evident by BA’s ongoing involvement in high risk behaviours and an increase in not only the rate of his offending, but also the serious nature of the alleged offences, all which (sic) are of significant concern to his family and care team
Ms Swiney urged me not to consider that the applicant would necessarily take his problematic behaviour in custody with him to the outside world were he to be released on bail. There are peer group and other pressures on him in custody which may not be the same outside.
Where the question of unacceptable risk is concerned, were I to get as far as considering that, Ms Swiney submitted that if the appropriate supports are put in place, such risks as there are can be reduced to a level of being acceptable ones.
The respondent’s contentions
Mr Austin for the respondent commenced by submitting that this case was very different from the situation in Re JO. Amongst other differences, the offending there was far less serious, and bail was not opposed.
Mr Austin conceded that the considerations set out in ss 3A and 3B were weighty matters, but that even these in combination with each other and all of the other matters relied upon did not establish exceptional circumstances.
He then took me to a number of the considerations set out in s 3AAA of the Act. He emphasised the very serious nature of the offending here, made all the more so by the fact the victim of the assault was an invalid pensioner who had recently undergone a kidney transplant, the obvious strength of the prosecution case, the troubling and escalating criminal history of the applicant, the fact of the applicant having frequently committed indictable offences whilst on bail, the fact that he was on bail, subject to a summons, and under a Youth Supervision Order at the relevant time, the fact that the criminal history of the mother of the applicant might make the home environment she could provide an inappropriate one for the applicant at this time, and the fact that, when consideration was given to the likely sentence the applicant would receive upon the charges being dealt with, the period of time he would spend on remand before that would not exceed that likely period.
Mr Austin submitted that whilst it may be true that a number of programmes available to the applicant outside custody may not be available to him inside, that is not to say that there are not suitable programmes available to him in the custodial setting. Furthermore, insofar as it was now being asserted that there would be supports and services available to him immediately upon his release, these were available to him at the time of his offending, and they did not stop him from so offending.
Mr Austin submitted that the poor behaviour of the applicant in custody was concerning, and that the Court should feel no confidence that that behaviour would not continue were the applicant to be released on bail.
All in all, Mr Austin submitted that exceptional circumstances had not been made out. He further submitted that there was an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of members of the public, or commit offences while on bail.
Discussion
Taking into account, as I am required to do, the important fact that the applicant is only 14 years old, it is still no small thing to prove the existence of exceptional circumstances in favour of the grant of bail. The authorities emphasise how difficult this may be. For example, Justice Champion in Re CT[5], another case involving a bail application by a child, stated:
The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail.’ It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances is a high one.’ That having been said, it is not an impossible standard to reach.[6]
[5][2018] VSC 559.
[6]Ibid [64].
In this case, taking into account all of the matters relied upon by Ms Swiney, I am not satisfied that exceptional circumstances exist which would justify the grant of bail to the applicant. He has significant prior convictions for one so young, and has unfortunately shown himself to be quite unwilling to abide by court orders and to modify his behaviour. While under very stringent bail conditions, in breach of those conditions, he carried out this offending. This offending itself represented a substantial step up in seriousness for him. He was involved, with others, in a serious entry upon the premises of entirely innocent and vulnerable victims late at night, culminating in an entirely unnecessary assault upon the male householder.
Far from being sufficient to establish exceptional circumstances, the facts of this case make it clear to me that the applicant must remain in custody at this time. I have reached this decision in the knowledge of the fact that, as things currently stand, he will be before the Children’s Court on 15 November 2018, and the charges will be able to be finalised then, or soon after that date.
For completeness, I make it clear that even were I to have considered that exceptional circumstances had been made out in this case, I would have been satisfied that, in the second step of the two-step test, there would be an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of members of the public, or commit further offences while on bail. The surrounding circumstances make it clear to me that the prospects of the applicant complying with even the most stringent of bail conditions would be bleak. His escalating poor behaviour and seeming unwillingness to modify his behaviour raise powerful concerns that he may represent a danger to the community.
Conclusion
In the circumstances I have endeavoured to set out in this decision, I am not satisfied that exceptional circumstances have been shown on behalf of the applicant. In addition, there would be an unacceptable risk of at least two of the matters set out in 4E(1) of the Act.
Therefore, the application for bail must be refused.