Re DB
[2019] VSC 53
•12 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0029
| IN THE MATTER of the Bail Act 1997 |
| and |
| IN THE MATTER of an Application for Bail by DB |
---
JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2019 |
DATE OF JUDGMENT: | 12 February 2019 |
CASE MAY BE CITED AS: | Re DB |
MEDIUM NEUTRAL CITATION: | [2019] VSC 53 |
---
CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Whether exceptional circumstances justifying bail – Whether applicant, if bailed, presents an unacceptable risk – Application opposed – Applicant aged 13 years with no criminal history, but recent charges withdrawn on basis of presumption of doli incapax – Current charges extremely serious in volume and nature – Release on supervised bail program supported by Youth Justice – Exceptional circumstances established – Applicant a risk, but not an unacceptable risk that cannot be ameliorated with conditions of bail – Bail granted with conditions – Bail Act 1997 (Vic) ss 3AAA, 3B, 4AA, 4A, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Casey | Dotchin Tan Lawyers |
| For the Respondent | Mr M. Sontag | Victoria Police Legal Services |
HIS HONOUR:
On 1 February 2019, DB applied to this Court for a grant of bail. He is aged 13. He has been in custody since 2 January 2019.
The alleged offending
The application relates to an uncomfortably large number of matters. There are five sets of charges to which this application relates, each of which I will address in turn.
Informant Walker
Firstly, in relation to the informant Detective Senior Constable Andrew Walker, the applicant was charged on 27 September 2018 with offences between 26 and 27 September 2018 in respect of which he was granted bail on 1 October and that bail was revoked on 18 January 2019. Those offences included, home invasion (stealing) offensive weapon, aggravated burglary person present, theft (four counts), criminal damage (four counts), possessing a controlled weapon, theft of a motor vehicle, burglary (four counts), theft from a motor vehicle (four counts), attempted theft from a motor vehicle (four counts), retention of stolen goods, and negligently dealing with the proceeds of crime.
In summary, it is alleged that, between 6.00 pm on 26 September and 8.30 am on 27 September 2018, the applicant and a co-accused stole a vehicle in Lynbrook before breaking into a number of vehicles and homes in the Berwick and Narre Warren South areas and stealing and attempting to steal various items.
Additionally, at about 10.55 am on 27 September 2018, it is alleged that the applicant and co-accused broke into a house in Narre Warren South whilst armed with a hunting knife. There were two persons present at the time, aged 14 and 18, who barricaded themselves in a bedroom and called emergency services. The applicant and co-accused allegedly attempted unsuccessfully to gain entry to the barricaded room before rummaging around through other rooms in the house and stealing various items.
Shortly after, in close proximity to this location, the applicant and co-accused were located by police and found to be in possession of a number of items alleged to have been stolen during those events which I have described. The applicant was arrested and interviewed, and answered “no comment” to the questions that were put to him. He was remanded in custody and granted bail on 2 November 2018.
Informant McArdle
The next group of charges were laid by the informant Senior Constable Fiona McArdle on 28 October 2018 concerning offences committed on that date and in respect of which the applicant was bailed on 1 November 2018. Bail was revoked on 18 January 2019. The charges include theft of motor vehicle, reckless conduct endangering life (two counts), reckless conduct endangering serious injury (two counts), using a drug of dependence being cannabis, failing to stop a vehicle after an accident, careless driving, unlicensed driving, failing to stop at traffic lights, and committing an indictable offence whilst on bail.
In relation to those matters, it is alleged that, at about 1.12 pm on 28 October 2018, the applicant, along with two other male co-accused, stole a vehicle parked at premises in Hampton East.
Shortly after, a witness observed the applicant driving the vehicle – which vehicle was owned by his brother – and advised his brother to contact police. The witness followed the vehicle on his motorbike and observed the vehicle to be driving in an erratic manner, including mounting a nature strip, scraping a 1968 Ford Mustang and colliding at speed with a 2012 model Holden Cruze.
The impact of the collision on the Holden Cruze caused it to crash into a 2005 Mazda2 at which time the stolen vehicle pushed through other vehicles and drove over the median strip and away from the scene. The driver of the Mazda2 – that is, the vehicle which had been crashed into – was pregnant at the time and suffered a panic attack which resulted in her being transported to hospital via ambulance.
The applicant is alleged to have continued to drive in an erratic manner before colliding with a bollard in Highett and attempting to flee the scene. He was apprehended by a witness and his brother until about 1.30 pm when the police arrived and arrested the applicant.
In relation to these matters the applicant is said to have made full admissions to the offending during a record of interview and was remanded in custody to appear at the Melbourne Children’s Court on 29 October 2018.
Informant Wallace
The third group of charges are in relation to the informant Detective Senior Constable Nicholas Wallace. These charges were laid on 15 November 2018 for matters between 21 May and 11 November 2018 in respect of which bail was granted on 15 November 2018 and revoked on 18 January 2019. The offences include theft of a motor vehicle (three counts), unlicensed driving, theft from motor vehicle (two counts), obtaining property by deception (two counts), retention of stolen goods, and going equipped to steal.
In relation to these matters, it is alleged that, on 6 August 2018, the applicant and a co-accused stole a vehicle from the car park of Dandenong Oasis swimming pool. It is alleged that, when the owner of the vehicle attempted to prevent the applicant from driving away, the applicant sped toward the owner, striking him in the leg and driving away. The owner did not sustain any injuries as a result of the incident.
It is further alleged that, on 23 August 2018, the applicant and several associates stole a vehicle from the Fountain Gate Shopping Centre before driving it away and abandoning it at the front of premises in Cranbourne.
On 25 September 2018, it is alleged that the applicant broke into a vehicle in Berwick and stole a bank card which he used to make various fraudulent purchases, including at a McDonald’s restaurant and a BP service station in Berwick to the value of $49.75.
Finally, between 10 and 11 November 2018, it is alleged the applicant stole a vehicle from the front of premises in Chelsea before later abandoning it in Noble Park South.
As I have said, on 15 November 2018, the applicant was arrested in relation to these matters and released on bail. When he was arrested, it is also alleged that his phone was examined, which examination revealed photographs of various items, including stolen bank cards.
Informant Wallace
Next, in relation to the informant Detective Senior Constable Amelia Faulkner, the applicant was charged on 2 January 2019 in relation to offences which occurred on 31 December 2018. They included aggravated burglary (two counts), theft (three counts), theft of a motor vehicle, theft from a motor vehicle (seven counts), possessing cannabis, possessing a prescription drug of dependence (namely, Xanax), possessing a prohibited weapon, possessing a controlled weapon, dealing with property suspected of being the proceeds of crime, going equipped to steal, and committing an indictable offence whilst on bail.
In these matters, between 1.00 am and 6.00 am on 31 December 2018, it is alleged that the applicant broke into a number of houses and vehicles in the Parkdale area and stole various items. At about 7.10 am on that day, the police located the applicant unconscious in a garden at an address in Parkdale. At about 7.20 am, paramedics attended the location and were able to raise the applicant’s consciousness before transporting him to Monash Hospital due to his drug affected state.
A search of the applicant and his bag located various items connected to the various events which he is alleged to have participated in, as well as a small bag containing “green vegetable matter” and a Listerine pocket pack which contained a Xanax tablet. During the following record of interview he made no admissions to his offending.
Informant Stevens
Finally, in relation to the informant Senior Constable Trav Stevens, the applicant was charged on 2 January 2019 with a number of offences which were alleged to have been committed between 14 December 2018 and 2 January 2019. The charges include theft from a motor vehicle (15 counts), attempted theft from a motor vehicle (25 counts), unlicensed driving, retention of stolen goods (two counts), committing an indictable offence whilst on bail, failing to stop a vehicle after an accident, failing to report to police, loitering with intent to commit an indictable offence (two counts), going equipped to steal, negligently dealing with proceeds of crime, and possessing a prohibited weapon.
In relation to these matters, at about 6.45 pm on 14 December 2018, the applicant and a co-accused allegedly stole the front and rear registration plates from a white Mazda2 sedan while it was parked in Hampton Park and were observed running from the vehicle.
Between 3.45 pm and 5.50 pm on 20 December 2018, the applicant and the co-accused are alleged to have attended Sandown, Springvale, Yarraman and Noble Park railway stations in a white Mazda2 bearing the stolen registration plates, where it is alleged they smashed the front passenger windows to approximately 38 vehicles with a window breaking tool and stole various items from the vehicles.
At approximately 5.50 pm on the same day, the applicant and co-accused allegedly attended a 7-Eleven store in Hampton and reversed into a parked vehicle, causing damage, before driving from the scene.
On 2 January 2019 at about 2.50 pm, police patrolling Sandown Railway Station observed the applicant in the carpark wearing a black glove and holding a glass-breaking device. A search of his backpack revealed a flick knife, $21.60 in cash, and numerous house and vehicle keys.
A record of interview was later conducted and the applicant answered “no comment” to questions put, except that he made admissions, so it is alleged, about the prohibited weapon found in his possession (that is, the flick knife) and the possession of cannabis. He was remanded in custody.
This catalogue of offending which is alleged against the applicant is, on any view, alarming and, on behalf of the respondent to this application, Mr Sontag has expressed significant concerns about it, particularly in the context of the risk that is involved if this boy is released on bail. I am likewise alarmed by it.
The applicant
The applicant is 13 years of age. As I have heard in the course of evidence from Nathaniel Southwell, a child protection practitioner with the Victorian Child Protection Service (“Child Protection”), the applicant is the subject of a family preservation order which is listed for an extension application in the Children’s Court, in three days’ time, on 15 February 2019. The family preservation order places the applicant in the day-to-day care of his mother at their home in [REDACTED], while allowing for Child Protection to monitor the family and home environment.
The applicant has no criminal history which, at age 13, is at least something. On 28 August 2018, charges against him were withdrawn in the Frankston Children’s Court on the basis of the presumption of doli incapax. These charges included theft of a motor vehicle (two counts), obtaining property by deception (two counts), theft, handling stolen goods, possession of cannabis, and committing an indictable offence whilst on bail (two counts).
The applicant’s contentions
Mr Casey, who appeared on behalf of the applicant, effectively submitted that a number of matters are established by the written evidence and show exceptional circumstances, having made the concession, at least by implication, that the volume and nature of the offences is extremely serious.
It is accepted that there is to be a contest in the Children’s Court in relation to the desire by the prosecution to rely on evidence and argument to rebut the presumption of doli incapax, and which they must rebut in order to do so. In relation at least to several of the informants, that presumption is still a relevant consideration.
Mr Casey also relies on the applicant’s lack of criminal history, albeit that he has various charges of noncompliance with bail which are the subject of this application.
It is also put that he is a vulnerable person due to his age, lack of antecedents, and the length of time that he has spent in custody.
Reliance is also placed on s 3B of the Bail Act 1997 (Vic) (“the Act”). Section 3B provides:
(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.
(2)In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3)Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
There is also the issue in this case as to the likely sentence that will be imposed on this applicant given his youth and surrounding personal circumstances, bearing in mind that he has now been in custody for approximately five weeks.
I am told, by way of evidence, that Youth Justice support the applicant being placed on a supervised bail program and that the Youth Support and Advocacy Service (“YSAS”) will continue to work with the applicant in relation to his drug and alcohol abuse.
It is further argued on behalf of the applicant that the risk of further offences being committed while on bail can be ameliorated through the matters I have just referred to and through the imposition of conditions.
The respondent’s contentions
The respondent, through Mr Sontag, expressed significant concerns, particularly in relation to the risk of this applicant being released on bail, which he submits remains unacceptable bearing in mind the history. In support of his submissions he refers to the nature and escalation of the applicant’s offending and submits that that poses a risk to the safety of the community which is in turn aggravated, of course, by the fact that, on numerous occasions, the applicant has been found in possession of weapons. Additionally, it can be said of the applicant that his persistent offending while on bail, as alleged, may indeed represent a disregard for court orders which cannot be ameliorated with conditions of bail.
Analysis
The applicant is a person accused of Schedule 2 offences within the meaning of s 3 of the Act – namely, aggravated burglary in this case – while on bail for another Schedule 2 – namely, home invasion. Therefore, pursuant to ss 4AA(c)(i) and 4A(1) of the Act, I must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
The Act requires me to take into account all the surrounding circumstances and that phrase draws attention to the various considerations that are set out in s 3AAA of the Act. I have taken into account these matters in determining the application.
In addition, pursuant to s 4E(1) of the Act, I must refuse bail if, notwithstanding that exceptional circumstances are established, the respondent satisfies me that there is an unacceptable risk the applicant would endanger the safety or welfare of any person, or commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with his conditions of bail. Again, I am required by s 4E(3) to have regard to the surrounding circumstances set out in s 3AAA and have done so.
Finally, I am required to take into account the policy set out in the guiding principles to the Act, contained in s 1B, whereby the Parliament recognises the importance of maximising the safety of the community and persons affected by crime to the greatest possible extent, as well as taking into account the presumption of innocence and the right to liberty. That section also recognises the promotion of fairness, transparency and consistency in bail decision-making, and finally, promoting public understanding of bail practices and procedures.
A large number of rulings of this Court have dealt with the meaning of “exceptional circumstances”. Those cases include Re Whiteside [1999] VSC 413, a ruling of Her Honour Warren J, and Maloney, an unreported judgment of Vincent J.[1] His Honour summarised the meaning of that phrase as follows:
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[2]
[1]In the matter of an Application for Bail by John Denis Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990).
[2]Ibid 1–2.
His Honour’s observations were later considered in a number of other rulings including by Coldrey J in DPP (Vic) v Cozzi [2005] VSC 195 in which His Honour went on to examine the various factors which might fall within the meaning of exceptional circumstances. I have dealt with the matter myself on a number of cases including in R v Chung [2015] VSC 487.
Importantly for the purpose of this case, T. Forrest J in Re JO [2018] VSC 438 held as follows.
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.[3]
[3]Ibid, [14].
Conclusion
As I indicated during the course of submissions, I am satisfied that exceptional circumstances are established, if only by virtue of the age of this applicant. As I said at the outset, it is alarming that a boy of 13 is accused of this level of offending, both as to its volume and its nature. But he is 13 and examining whether or not he should remain in custody, I think, means that, at the age of 13, his circumstances are exceptional, particularly when the considerations set out in s 3B of the Act are applied.
Mr Sontag, on behalf of the respondent, I having foreshadowed that conclusion, did not seek to take significant issue with it, but that is only halfway there and the next question is that of whether or not the respondent has established that the risk of releasing the applicant on bail is unacceptable.
It would be foolish to suggest in any way that there is no risk in releasing this boy on bail. Of course there is a risk. But, adopting the rationale of T. Forrest J to this application, it seems to me that there are conditions which can be imposed that can mitigate that risk to a degree so as to make the risk acceptable. I do not reach that conclusion with much confidence, but nonetheless I have reached that conclusion.
There are a number of people, including Mr Southwell and Alexandra Crocker, a case worker with Youth Justice, who gave evidence in support of a Youth Justice Bail Service Report dated 11 February 2019 in which she recommended, having had a previous involvement with the applicant, a supervised bail release.
The only further condition that I would add in an effort to make the risk acceptable is a condition of judicial monitoring by me on a weekly basis, so that I will be informed, week by week over the next few weeks, as to whether or not the applicant has complied with the conditions which I propose to impose on him.
In my view, bearing in mind the evidence that has been given that the applicant is somewhat chastened by his five or so weeks at Parkville Youth Justice Centre, there is a prospect that these conditions will ameliorate the risk and make the risk acceptable. I therefore propose that the applicant be released on bail on his own undertaking and with the following conditions:
(1) The applicant is to reside at [REDACTED] in the State of Victoria, which place of residence is to be varied only by order of a court or as directed by the Department of Health and Human Services; and
(2) Other than in the case of emergency, the applicant is not to be absent from his place of residence between the hours of 8.00 pm and 7.00 am (‘the curfew hours’) unless in the company of:
(a) his mother, [REDACTED];
(b) a Youth Justice worker or a nominee of Youth Justice; or
(c) a Department of Health and Human Services worker or a nominee of the Department of Health and Human Services;
and is to present himself at the front door of his place of residence upon the reasonable request of a member of Victoria Police during the curfew hours; and
(3) The applicant is not to contact or associate with, either directly or indirectly, any witnesses for the prosecution, other than the informants Detective Senior Constable Andrew Walker, Senior Constable Fiona McArdle, Detective Senior Constable Nicholas Wallace, Detective Senior Constable Amelia Faulkner, and Senior Constable Trav Stevens; and
(4) The applicant is not to contact or associate with, either directly or indirectly, the co-accused [REDACTED]; and
(5) The applicant is to report to the officer-in-charge of the Dandenong Police Station each Monday, Wednesday and Friday between 7.00 am and 8.00 pm; and
(6) The applicant is not to drive a motor vehicle; and
(7) The applicant is not to consume alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act; and
(8) The applicant is to undertake a preliminary breath test or breath test at the request of a member of Victoria Police; and
(9) The applicant is to comply with all lawful directions of Youth Justice; and
(10) The applicant is not to leave the State of Victoria; and
(11) The applicant is not to attend any international points of departure; and
(12) The applicant is to appear at the Dandenong Children’s Court on 15 February 2019, and thereafter as directed by that Court; and
(13) The applicant is to appear at this Court on 19 February 2019 at 9:30 am and each Tuesday thereafter at 9:30 am until further order.
3
0