Re Chafer-Smith

[2014] VSC 51

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0016 of 2014

THE QUEEN

v
IN THE MATTER of an application for Bail by FELICITY CHAFER-SMITH	Accused

---

JUDGE:	T FORREST  J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2014
DATE OF RULING:	21 February 2014
CASE MAY BE CITED AS:	Re Chafer-Smith; An application for Bail
MEDIUM NEUTRAL CITATION:	[2014] VSC 51

---

CRIMINAL LAW – Application for Bail – Reckless conduct placing persons at risk of death, alternatively reckless conduct placing persons at risk of serious injury, alternatively driving in a manner dangerous to the public and other offences – Applicant a young, aboriginal woman who committed the alleged offences one day after her eighteenth birthday - Show cause – Applicant an unacceptable risk of committing further offences while on bail – Section 3(a) of the Bail Act 1977 – Bail refused.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Inspector R Koo	Simon Shearer, Acting Sergeant
For the Accused	Ms K Churchill	Victorian Aboriginal Legal Service

HIS HONOUR:

1. The applicant is an 18 year old Aboriginal woman.  On 21 January 2014 she was arrested and charged with reckless conduct placing persons at risk of death, alternatively reckless conduct placing persons at risk of serious injury, alternatively driving in a manner dangerous to the public, possession of a prohibited weapon, possession of a drug of dependence, driving an unregistered vehicle, handling stolen goods, failing to appear on bail and associated more minor offences. 

1. The informant for those matters is Detective Senior Constable Ryan Collins.  I understand that an agreement has been made for the applicant to plead guilty to a number of offences arising from the Collins charges, the most serious being reckless conduct placing persons at risk of serious injury. 

1. At the time of her arrest, the applicant had five outstanding warrants for failing to appear on bail or failing to appear on summons.  All of these warrants were in respect of Children's Court matters (informants Coller, Frankish, Davis, Timms, Tyler).  These matters were before the court with the Collins charges when the applicant was remanded in custody at the Frankston Magistrates' Court on 22 January 2014. 

1. I regard the objective gravity of the Collins charges as significant.  Shortly after midnight on 21 January 2014, the applicant was observed by police driving a black Holden Barina with no registration plates east along Cranbourne Road, Frankston.  The police activated their lights and sirens but the applicant failed to stop.  The applicant drove along Cranbourne Road at about 100 km/h, swerving between lanes and on the wrong side of the two way carriage way.  She swerved her vehicle at the police vehicle on a number of occasions.  She turned her vehicle's lights off. 

1. At the Peninsula Link entrance, the applicant entered the northbound lanes whilst, in fact, she was travelling south.  The police pursuit, unsurprisingly, was abandoned at this stage. 

1. Another police officer stationed on Peninsula Link observed the applicant's vehicle travelling south on that road against the flow of northbound traffic and with its headlights extinguished.  That police officer,  Constable Duncan, activated the police lights of his stationary police vehicle.  It seems that the applicant drove directly at that stationary vehicle which had to be quickly manoeuvred to one side.  Constable Duncan then discreetly followed the applicant's vehicle at a distance of 300 metres.  He observed the applicant continuing to travel at about 120 km/h along the wrong sign of Peninsula Link, swerving between lanes and causing oncoming traffic to pull over or swerve to avoid a fierce head on collision. 

1. The applicant then performed a U-turn on the Peninsula Link Freeway and exited at Cranbourne Road, Frankston.  Her vehicle's lights were still extinguished.  She then drove on the wrong side of the Frankston Dandenong Road, Frankston until her vehicle collided with another vehicle travelling west along that road.  Thankfully, no one from that other vehicle was injured.

1. The applicant was still in the driver's seat when arrested.  A passenger was also arrested.  In a record of interview he provided a full account of the offending, including that he had repeatedly asked the applicant to calm down and pull over.  He told police that the applicant advised him that if she drove dangerously enough police would abandon the chase.  The applicant is alleged to have told her passenger that "she knew what she was doing" and had done this before. 

1. Found in the applicant's car were, inter alia, multiple sets of registration plates, identification papers belonging to five other persons, live and spent shotgun ammunition and a knuckleduster. 

1. The applicant provided a no comment record of interview. 

1. These events occurred just one day after her 18th birthday. 

1. I indicated earlier in these reasons that there were various sets of charges yet to be dealt with by the Frankston Children’s Court. 

1. The Tyler charges concerned conduct on 27 November 2013.  The applicant drove a stolen motor vehicle.  It was fuelled up with stolen petrol in Frankston and then driven to Mount Martha where, on the Nepean Highway, a police officer observed it to be driven on the incorrect side of the road causing other drivers to swerve to avoid a collision.  The stolen car then ran into an embankment at Balcombe Hill.  The applicant, apparently substance affected, was asleep at the wheel.  The applicant, I understand, will plead guilty to various offences arising out of this incident from this apparently undisputed factual basis.  Again the applicant declined to answer questions.

1. In Detective Senior Constable Collins' affidavit, he sets out another alleged course of conduct which is said to have occurred on 1 November 2013.  The applicant is said to have driven a white VN Commodore erratically and at high speed through the residential streets of Frankston.  A police chase is said to have commenced and it is also alleged that she ran a red light at the intersection of Frankston-Dandenong Road and Ballarto Road, Seaford.  Her speed reached 150 km/h and the chase was called off.  Two civilian witnesses followed her, called police and the applicant was arrested.  Again she declined to answer questions.  I am told that charges are imminent relating to this incident.

1. I have indicated earlier in these reasons that at the time of her arrest on 21 January 2014 the applicant had five outstanding warrants for either failing to appear on summons or whilst on bail to appear at Frankston Children's Court.  These warrants, apart from one issued in respect of the Tyler charges, relate largely to theft offences.

1. On 5 February 2014 at the Frankston Magistrates' Court, the applicant sought a sentencing indication in respect of the Collins charges.  A period of detention in a youth justice centre was indicated by the learned magistrate and it seems the applicant accepted this indication.  The matter was adjourned until 26 March 2014 to allow for a presentence report to be compiled by Youth Justice.  No application for bail, as I understand it, was made then.  The applicant was remanded to an adult prison which, as an adult, is the only option available at the remand stage.

1. I understand that the Coller, Frankish, Timms, Davis and Tyler charges have now resolved and it is proposed that those matters also be dealt with on 26 March 2014 but in the Frankston Children's Court. 

1. It is common ground that the applicant is in a show cause position (s.4(4)(a) of the Bail Act 1977). 

1. Bail is also opposed on the basis that there is an unacceptable risk that if the applicant were released on bail she would commit further offences and endanger the safety and welfare of the public (s 4(2)(d)(i) of the Bail Act1977).

1. The applicant contends that she has shown cause that her detention in custody is unjustified and that in all the circumstances the prosecution have not demonstrated that she is an unacceptable risk in the way contended by them. 

1. The applicant relies on the following factors: 

(a)the applicant has a stable place of residence and a very supportive mother who gave evidence before me. I regarded her as an impressive witness;

(b)the fact that the applicant has one prior finding of guilt only in the Children's Court at Mildura in 2010;

(c)her age and the weight that ought be given to that;

(d)the fact that the applicant has detoxified, so it is asserted, from a methylamphetamine habit after one month in adult custody;

(e)the fact that the applicant has been remanded into adult custody as a near child who is barely out of the jurisdiction of the Children's Court;

(f)the support of Youth Justice which is now in place;

(g)a report prepared by Dr Aaron Cunningham & Associates which makes a diagnosis of Autism Spectrum Disorder and also indicates that the applicant, whilst in custody, is susceptible, and more susceptible because of her ASD, to negative peer influence.  It also indicates that the applicant has an impaired ability to cope with her emotional state and determine the moral appropriateness of behaviour outside her immediate peer group;

(h)at the time of her remand the applicant was acting as a full time carer for her mother who suffers from a debilitating back injury. 

1. Ms Churchill, on behalf of the applicant, in a belated but highly competent appearance, argued that in view of the sentence indication given on 5 February 2014 of detention in a Youth Justice facility, the fact that the applicant is currently remanded to adult prison ought weigh heavily in her favour.  I expressed in discussion with Ms Churchill my concern that neither I nor the learned magistrate were legislatively empowered to remand the applicant to a Youth Justice facility.  I regard this as most unsatisfactory. The rehabilitation of the applicant, and other young people in her position, is likely to be undermined by this legislative oversight.

1. I have also been directed in affidavit material by those who appear for the applicant to s 3A of the Bail Act and am urged to read it in the light of the report of the 1991 Royal Commission into Aboriginal Deaths in Custody, the vast statistical overrepresentation of Aboriginal and/or Torres Strait Islander Australians held in custody and current overcrowding in custody.

1. After anxious consideration, I am satisfied that the applicant represents an unacceptable risk of (a), committing further offences if released or 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 these risks to an acceptable level.

1. It follows that I am not satisfied that the applicant has shown cause why her continued detention in custody is unjustified.[1] If I consider the aspects of show cause and unacceptable risk as separate components to this application,[2] I remain positively satisfied that the applicant is an unacceptable risk in the way that I have identified. 

   [1]See, ReAsmar [2005] VSC 487.

   [2]See Woods v DPP [2014] VSC 1.

1. I regard the nature of her offending in the Collins charges as exhibiting an indifference to the welfare of herself, her passenger or any member of the public who happened to be proceeding lawfully along Peninsula Link or any other road that she used that morning. 

1. In the circumstances that I have outlined, I consider that there is a significant risk that the applicant will repeat this type of offending should I grant bail and should that risk become reality, the consequences may well be catastrophic. I have considered the applicant's Aboriginality, as I must under s 3A of the Bail Act. I am obliged to take into account any issues that arise therefrom. I accept that Aboriginal Australians are very significantly overrepresented in our prisons and I consider that if this were a marginal case where a decision to grant bail or refuse it was a close run thing, then s 3A considerations may well operate to determine the application in the applicant's favour. I further consider that the applicant's youth, difficult personal circumstances, psychological state and strong familial circumstances all weigh in her favour.

1. For the reasons that I have set out, however, I am satisfied positively that if released on bail the applicant would present an unacceptable risk both of committing further serious offences and of endangering the safety and/or welfare of members of the public. Accordingly, the application is refused.