Re BKT
[2018] VSC 240
•17 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0091
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by BKT
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2018 |
DATE OF JUDGMENT: | 17 April 2018 |
CASE MAY BE CITED AS: | Re BKT |
MEDIUM NEUTRAL CITATION: | [2018] VSC 240 |
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CRIMINAL LAW – Application for bail – Children’s Court – Charges of theft and committing an indictable offences while on bail – Applicant required to show cause – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Reardon | Victoria Legal Aid |
| For the Respondent | Mr S Eley | Victoria Police |
HIS HONOUR:
Introduction
On 10 April 2018, BKT (‘the applicant’) was arrested and charged by police with theft and committing an indictable offences while on bail. The charges relate to an event alleged to have occurred that same day outside the State Library of Victoria, in Melbourne.
The applicant has been in custody since his arrest. He is 16 years old, and will turn 17 in June 2018.
By an application dated 12 April 2018, the applicant applies to this Court for a grant of bail.
Procedural history
On 11 April 2018, the applicant applied to the Melbourne Children’s Court for bail with respect to the above charges, but that application was refused. This matter is currently listed for a group conference on 27 April 2018 and for a further mention at the Melbourne Children’s Court on 2 May 2018.
At the time of his alleged offending, the applicant was on bail with respect to two other outstanding sets of charges, which arose out of a robbery incident on 19 November 2017, and a further robbery incident on 18 December 2017. He was charged and bailed by police on 19 December 2017, and 5 January 2018 respectively.
On 13 March 2018, the applicant pleaded guilty to three charges of robbery at a consolidated plea hearing. The plea hearing was adjourned to 2 May 2018, in order to allow the applicant to participate in a group conference and a report to be prepared on his participation.
In addition, police are preparing to file a further charge of theft against the applicant. It is alleged that he stole items of clothing from a Target store in Dandenong on 22 March 2018.
The alleged offending
On Tuesday 10 April 2018, the applicant and three or four associates allegedly approached the victim, who was sitting on the steps outside the State Library of Victoria. After a brief verbal exchange, the applicant allegedly snatched the victim’s phone from the ground next to him. The applicant then ran away with the phone. He and the group then boarded a southbound tram on Swanston Street.
The applicant was captured on CCTV boarding the tram holding two mobile telephones in his hand.
A witness also approached police and reported the incident. The witness reported observing the applicant handing a phone to the co-accused, who allegedly then placed it under her clothing.
Police stopped the tram and arrested the applicant and the co-accused. A search of the co-accused located the victim’s phone in her underwear.
The applicant denied his involvement in the theft incident and gave a no comment interview.
The applicant’s background
The applicant was born in Kenya in 2001 and arrived in Australia in 2004. He is the oldest of eight children. Prior to being remanded in custody, he lived with his parents in their family home.
The applicant has no previous criminal history before 19 November 2017, when it is alleged that he was involved in a robbery incident. The period in remand from the date of his arrest on 10 April 2018 has been his first time in custody. He has, however, been the subject of three diversion orders for a number of dishonesty offences, and failing to answer bail. In addition, he has also received two warnings from police, the particulars of which have not been provided by the prosecution.
The applicant is enrolled in Year 11 VCAL. Outside his schooling, the applicant plays basketball and attends Salvation Army church services every Sunday, as well as its youth group.
The applicable legislation
The applicant must show cause why his detention in custody is not justified pursuant to s 4(4)(a) of the Bail Act 1977 (‘the Act), as he is charged with an indictable offence alleged to have been committed while he was on bail for another indictable offence. The applicant is also in a show cause situation pursuant to s 4(4)(d) of the Act, by virtue of being charged with an offence under s 30B of the Act.
Given that the applicant is a child, the Court is also required to take into account the matters listed in s 3B(1) of the Act when deciding whether to grant bail. The section provides the Court must take into account:
(a) the need to consider all other options before remanding the applicant in custody;
(b) the need to strengthen and preserve the relationship between the applicant and his family, guardians or carers;
(c) the desirability of allowing the living arrangements of the applicant to continue without interruption or disturbance;
(d) the desirability of allowing the education, training or employment of the applicant to continue without interruption or disturbance;
(e) the need to minimise the stigma to the applicant resulting from being remanded in custody;
(f) the likely sentence should the applicant 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 applicant.
This Court may also take into account any recommendation or information contained in a report provided by a bail support service and must not refuse bail on the sole ground that the child does not have adequate accommodation.
The applicant’s contentions
In an affidavit dated 12 April 2018, sworn by Erica Contini in support of the grant of bail, it is submitted that the following matters are established by evidence and are sufficient to show cause why the applicant is not an unacceptable risk and should be granted bail.
The applicant’s youth
The applicant is 16 years old.
Family support and accommodation
The applicant has accommodation available to him at the family home, where he had been living with his parents prior to being remanded.
The applicant’s history of attending court
It is submitted that the applicant has no history of failing to attend court. The prosecution notes, however, that in October 2017 the applicant received a diversion order with respect to, inter alia, a charge of failing to answer bail.
Likely delay and unlikeliness of a custodial sentence
The applicant intends to dispute the charges for which he is remanded in custody, which may cause a delay in the matter.
Further, the parties agree that, in light of s 361 of the Children, Youth and Families Act 2005, the applicant may not face a custodial sentence if ultimately found guilty of the charges.
The applicant’s enrolment in school
The applicant attends Year 11. There is an obvious benefit in his being released so that he can continue to attend school.
The prosecution’s contentions
By affidavit dated 13 April 2018, the prosecution indicated that bail would not be opposed in the event that the Court finds that the applicant has shown cause, on the following bases:
(a) the applicant has a limited criminal history;
(b) the applicant’s alleged offending, although serious, might not attract a custodial sentence;
(c) the applicant, through his legal representatives, has indicated a willingness to engage with Youth Justice and engage additional support if released on bail; and
(d) there are benefits in having the applicant return to his family and continuing his education.
The prosecution proposes the following conditions should be imposed, ordering that the applicant:
(1) reside at the family home with his parents;
(2) not leave the family home between 8.00pm and 6.00am, unless accompanied by a parent;
(3) present himself at the front door of the family home to any member of the police force between the curfew hours; (4) not attend or be within the Melbourne central business district, bounded by Latrobe, Spencer, Flinders and Spring Streets, except to attend court or meet with his lawyer;
(5) attend such programs and counselling as directed by Youth Justice and to obey all lawful instructions of Youth Justice;
(6) attend school on every school day unless a medical certificate is obtained to indicate a medical reason for not attending;
(7) not associate with the co-accused in this matter, AL, LJ, DT and MM; and
(8) comply with any such other conditions as the Court deems appropriate.
Discussion
Having considered all of the matters put before me, I have concluded that the applicant has shown cause why he should be granted bail. I have also concluded that the prosecution has not demonstrated that the applicant is an unacceptable risk as to why he should not be granted bail.
The applicant submitted that there was a combination of three main issues that pointed towards bail being granted. First, that there was a strong possibility that any time spent on remand by the applicant would exceed any custodial sentence that may be imposed for the charges, if proved. Further, the applicant highlighted that the prosecution conceded that the applicant’s current alleged offending might not attract a Youth Justice Centre order. In support of this argument, it was put that the applicant was youthful and lacked prior convictions, and there was likely to be a delay before the hearing of the current charge was finalised, particularly as it is anticipated he will contest the allegations.
Second, it was submitted that the applicant has a number of pro-social supports available that reduce the risk of further offending. The applicant identified support from both of his parents, a place to stay at home, his enrolment and attendance at school in Year 11, attending TAFE, and engagement in a furniture-making course on one day each week. The applicant is also seeking a work placement on Fridays to be organised through his school. The applicant is also involved in organised sport, involving a number of training sessions each weekend, and is a member of the Salvation Army Church and a youth group which meets every Sunday.
Third, it was submitted that the case against the applicant in respect of the theft charge is weak. However, it is conceded that he was in the CBD in breach of previous bail conditions and at a time when he would have breached his then current curfew conditions, should he have travelled home.
In the course of submissions, the respondent did not resist the conclusion that cause had been shown by the applicant, subject to the Court’s ruling and the imposition of suitable bail conditions. Primarily, the submissions of the respondent in this application were directed towards the establishment of satisfactory bail conditions, especially as the applicant’s alleged offending occurred in circumstances where the current pro-social connections of the applicant were in existence.
It was clear that the respondent did not strongly oppose the application before the Court. Accordingly, I am of the opinion that not only has the applicant shown cause, but that an unacceptable risk that he may reoffend, has not been made out by the respondent.
With respect to the issue of an increased level of supervision of the applicant, the respondent submitted that it would be appropriate to engage Youth Justice to supervise the applicant and assume a role in monitoring his adherence to bail conditions. Ms Elise Calvert, a Youth Justice bail assessment and support worker based at the Melbourne Children’s Court, gave evidence before me on the application. Ms Calvert’s conclusion, having heard the evidence in the application, was that the involvement of Youth Justice in the current circumstances might be premature and too onerous a step to take at this stage . She opined that if the applicant’s poor behaviour continued in the period before he returns to the Children’s Court for the ultimate disposition of his matters, a sentencing disposition involving Youth Justice would be an option available to that Court. On the basis of that evidence, I am not minded to order that Youth Justice become involved in the applicant’s case at this stage. However, I am of the opinion that strong bail conditions should be part of a grant of bail.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
(1)He attend the Melbourne Children’s Court and then surrender himself, must not depart without the leave of the Court, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(2)He reside at the family home in Victoria with his parents and not change that address without the leave of the Court.
(3)He remain at those premises between the hours of 8.00pm and 6.00am each day for the duration of the bail period, unless accompanied by a parent.
(4)He present himself at the front door of those premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(5)He not attend or be within the Melbourne Central Business District, bounded by La Trobe Street, Spencer Street, Flinders Street and Spring Street, except to attend court or meet with his lawyer.
(6)He attend school on every school day, unless a medical certificate is obtained to indicate a medical reason for not attending, for the duration of the bail period.
(7)He not contact, directly or indirectly, any of the co-accused in this matter, being AL, LJ, DT or MM, for the duration of the bail period.
(8)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(9)He not leave the State of Victoria.
(10)He surrender any passport he may have to the informant within 24 hours.
(11)He not attend any points of international departure.
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