Re DG
[2019] VSC 622
•23 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0190
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by DG |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 September 2019 |
DATE OF JUDGMENT: | 23 September 2019 |
CASE MAY BE CITED AS: | Re DG |
MEDIUM NEUTRAL CITATION: | [2019] VSC 622 |
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CRIMINAL LAW – Bail – Child applicant – Charges of rape, false imprisonment and unlicensed driving – Requirement to show a compelling reason exists that justifies grant of bail – Whether a compelling reason established – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Youth Justice not supporting bail – Time spent in custody – Likely sentence – Family support - Compelling reason established – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3B, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Hollingworth | Orenstein Lawyers |
| For the Respondent | Ms H Spowart | Victoria Police |
HER HONOUR:
DG, a 16-year-old child, seeks bail.
On 12 April 2019, DG was charged with offences of rape, false imprisonment (two charges), and unlicensed driving (‘the informant Vaughan matter’). He was remanded in custody at Parkville Youth Justice Centre that same day. The charges faced by DG relate to events alleged to have occurred on 5 April 2019.
There is one co-accused, MM, who faces two charges of rape. He has no criminal history, and was granted bail in the Children’s Court on 27 June 2019.
At the time of the alleged offending, DG was subject to a deferral of sentence period for a single charge of affray. On 6 August 2019, DG was sentenced to a 12-month Youth Probation Order for that offence.
On 10 May 2019, while on remand in relation to the informant Vaughan matter, DG was charged on summons with offences alleged to have occurred on 8 March 2019, namely, behaving in a riotous manner and stating a false name (‘the informant Garside matter’).
DG has been refused bail three times in respect of the informant Vaughan matter, in the Children’s Court, on 23 May, 9 August and 4 September 2019. On all occasions, bail was refused on the basis that, inter alia, DG was an ‘unacceptable risk’ within the meaning of s 4E of the Bail Act 1977 (‘the Act’).[1]
[1]Particularly, on 23 May 2019, bail was refused on the basis that DG was an unacceptable risk of committing an offence while on bail and endangering the safety and welfare of any person. On 9 August 2019, bail was refused on the basis that DG failed to show a ‘compelling reason’ and was an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person or, interfering with a witness or otherwise obstructing the course of justice in any matter. On 4 September 2019, bail was refused on the basis that DG failed to show a ‘compelling reason’ and was an unacceptable risk of committing an offence while on bail and endangering the safety and welfare of any person.
Presently, the informant Vaughan matter is listed for a contested hearing, in the Melbourne Children’s Court, on 2 December 2019. By the time of that hearing, unless bail is granted earlier, DG would have spent 234 consecutive days on remand.
It is common ground between the parties that bail must be refused unless DG can satisfy me that a ‘compelling reason’ exists which justifies the grant of bail. This is because DG is presently charged with rape, which is a Schedule 2 offence under the Act.[2] Notwithstanding the existence of a compelling reason, it is clear that bail must still be refused if I am satisfied by the prosecutor that DG is an unacceptable risk of any of the matters described in s 4E(1)(a) of the Act.
[2]Bail Act 1977 sch 2, item 9 (‘Bail Act’).
The applicable law
Guiding principles
In interpreting and applying the Act, the Court is required to have regard to the matters set out in s 1B of the Act, as follows:
(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; and
(c) promoting fairness, transparency and consistency in bail decision-making; and
(d) promoting public understanding of bail practices and procedures.
Applicable test
It is clear that, having been charged with a Schedule 2 offence, DG must satisfy the Court that ‘a compelling reason exists that justifies the grant of bail’.[3]
[3]Ibid ss 4AA(2), 4C.
In making a determination in relation to compelling reason, the Court must take into account the ‘surrounding circumstances’, including those matters set out in
ss 3AAA and 3B of the Act such as DG’s status as a child.[4] Relevantly, the Court is required to consider all other options before remanding a child in custody.[5]
[4]Ibid ss 3AAA, 3B, 4C(3).
[5]Ibid s 3B(1)(a).
As stated earlier, irrespective of whether DG satisfies the Court regarding a compelling reason, bail must be refused if the prosecutor is able to satisfy the Court that DG is an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[6]
[6]Ibid ss 4C(4), 4D, 4E.
In determining whether any risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[7]
[7]Ibid s 4E(3).
Case law
In the recent matter of Re Neskovski,[8] Beach JA rehearsed the meaning of ‘compelling reason’, as follows:
A compelling reason may be established by the combination of a number of circumstances — being circumstances relating to the strength of the prosecution case against the applicant, the personal circumstances of the applicant and all of the matters now referred to in s 3AAA of the Act. As the authorities now show, a compelling reason does not have to be one which is irresistible or exceptional. A compelling reason is one which is forceful and therefore convincing.[9]
[8][2019] VSC 447.
[9]Ibid [16] (citations omitted).
It is relevant to note that, in the present case, it is submitted that DG’s time on remand may exceed any sentence that would be imposed if he were to be found guilty of the charges against him. Relevantly, this issue was discussed by
Beach JA in the matter of Re Johnstone [No 2],[10] in the context of determining the existence of a compelling reason:
Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is a compelling reason justifying a grant of bail. For such a circumstance not to constitute a compelling reason in a particular case, one would expect there to be other significant countervailing factors or circumstances affecting the synthesis required to be performed in order to determine whether a compelling reason within the meaning of s 4C of the Act exists.[11]
[10][2018] VSC 803.
[11]Ibid [18] (emphasis added) (citations omitted).
In weighing a child’s special status under the Act in the context the compelling reason test, it is clear that the test to be applied is a different exercise than would otherwise be the case if the applicant were not a child.[12] This principle was enunciated by Champion J in Re JM, as follows:
In Re JO, T Forrest J further held, in the context of a child applicant facing the exceptional circumstances test:
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.
His Honour’s comments have been cited and affirmed by this Court on several occasions where the exceptional circumstances test applies. In my opinion, his Honour’s remarks are also pertinent to cases such as the present where the compelling reason test applies. As T Forrest J stated, the Court must take into account the considerations set out in s 3B(1) of the Act when making any determination under the Act in relation to a child. As such, determining whether an applicant has shown a compelling reason exists that justifies the grant of bail is a different exercise in the case of child.[13]
[12]Re JM [2019] VSC 156, [60].
[13]Ibid [59]–[60] (emphasis added) (citations omitted).
With regard to considerations relating to ‘unacceptable risk’, Priest JA noted in Re LD[14] that:
It is important to bear in mind that the applicant is not required to show an absence of unacceptable risk. The burden of establishing an unacceptable risk in one or more of the prescribed ways rests with the prosecutor (s 4E(2)). Self-evidently, any grant of bail must carry some risk, assessment of whether a risk is unacceptable requiring evaluation of the putative risk. Significantly, as the Act recognises, there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.[15]
[14]Re LD [2019] VSC 457.
[15]Ibid [23] (citations omitted).
Relevantly, in the present application, it was submitted on behalf of DG that there were conditions of bail that could be imposed to moderate DG’s risk to an acceptable level.
The alleged offending
The complainant in this matter is a 16-year-old child. At the time of the alleged offending, DG and the complainant were known to each other through their mutual attendance at a school.
On 3 April 2019, DG ran into one of the complainant’s relatives at Southern Cross Railway Station in Melbourne. DG used the complainant’s relative’s mobile phone to speak with the complainant, and it followed that arrangements were made between DG and the complainant to meet the following evening for a ‘sesh’ of consuming alcohol and illicit drugs.
At approximately 11.00 pm on 4 April 2019, pursuant to that arrangement, DG and the complainant attended a football ground in the local area. They were accompanied by the co-accused and the complainant’s friend.
It is alleged that, while at the football ground, the co-accused gave the complainant and the complainant’s friend cannabis, Xanax and ecstasy. Additionally, all four parties consumed alcohol together.
Between 10.40 pm on 4 April 2019 and 12.35 am on 5 April 2019, the complainant sent several messages to her friend, JT, via Facebook Messenger, including ‘you can come get me soon,’ and, ‘please I’m fucked’. In addition, the complainant sent a message to the effect that she was going to run away.
While at the football ground, it is alleged that DG touched the complainant’s leg and winked at her. It is the complainant’s evidence that this made her feel uncomfortable, and that she crossed her legs and told her friend that she wanted to leave. At approximately 3.00 am, the group left the football ground and commenced walking towards the main road.
It is the prosecution case that the complainant and her friend made attempts to evade DG and the co-accused by hiding in nearby bushes. The complainant again messaged JT stating, ‘at a park I’m tryna hide’, ‘this guy is tryna suss something in there language and he came and sat next to me’, and, ‘now they think they getting stuff’. The complainant told JT that she was going to ask someone to take her home, but indicated that she was having trouble finding the main road.
At approximately 4.20 am, the complainant messaged JT again, this time asking for him to come and get her at ‘macs’ (believed to be a reference to the McDonalds). It is not clear whether JT ultimately made any attempt to pick up the complainant from this location.
At approximately 5.50 am, having apparently reunited, the group took a taxi to the complainant’s residence. Upon arriving, it is the taxi driver’s evidence that DG repeatedly asked the complainant if he could come inside to which she refused. However, the complainant eventually acceded to an invitation from DG to ‘party’ at his residence, and the taxi driver drove them to DG’s home address.
Upon arriving at DG’s home address, it is alleged that DG exited the taxi without making any attempt to pay, before proceeding on foot to his home address with the group. At his residence, DG took his sister’s vehicle and drove the group to the complainant’s residence. DG allegedly offered to drive the complainant home.
Relevantly, during the journey back to where they had come from, DG was seated in the driver’s seat with the complainant in the front passenger seat. The co-accused was seated behind DG with the complainant’s friend in the middle seat, and a child’s car seat positioned behind the front passenger seat.
In summary, the prosecution case is that DG drove past the complainant’s residence and parked in a nearby street, where he grabbed the complainant by the face and attempted to kiss her. The complainant rejected DG’s advances, and advised him that she had a boyfriend. It is alleged that DG proceeded to speak to the co-accused in a foreign language before locking the vehicle doors.
The co-accused allegedly moved the child’s seat to the floor of the vehicle and commanded the complainant’s friend to ‘suck [his] dick’. Notwithstanding the complainant’s friend’s refusals, it is alleged that the co-accused forcefully inserted his penis into her mouth and told her to, ‘hurry up, before I smash you’.
It followed that the co-accused lowered the front passenger seat so that the complainant was lying down. DG then climbed on top of the complainant and stated, ‘it’s your turn’, ignoring her resistance. It is the prosecution case that DG held the complainant by the throat and covered her face with his jacket as he penetrated her vagina with his penis. The complainant continued to resist, telling DG to ‘get off’, to which he did not comply. During this time, it is alleged that the co-accused stated, ‘if you [both] don’t give us what we want, we will bash you [both]’.
After approximately 10 or 20 minutes, DG and the co-accused desisted and drove the complainant and her friend to a nearby intersection. At this location, the complainant and her friend exited the vehicle and walked to the complainant’s residence.
Disclosure of alleged offending
Upon arriving at the complainant’s residence, the complainant and her friend sat outside the front of the house crying. They were taken inside by the complainant’s sister.
Once inside, the complainant and her friend told the complainant’s sister that they had been out with two males and that they had taken MDMA, ecstasy, Xanax and cannabis. The complainant’s sister asked whether this was why they were upset, to which the complainant’s friend responded, ‘these two boys raped us’, before leaving the room.
The complainant advised her sister that she had met up with a male from her school and named him, and that ‘the other guy’ provided them with drugs which they had proceeded to smoke. The complainant stated that she later asked DG to drop her off near her residence, but that he had kept driving and parked in a nearby street where he locked all the vehicle doors.
In describing the alleged offending, the complainant told her sister that the co-accused had pulled the lever of her seat down and that DG had climbed on top of her, pulled her pants down and started kissing her. The complainant’s sister asked why she hadn’t tried to stop DG, to which the complainant responded that she couldn’t have as ‘the doors were locked and they wouldn’t let [her and her friend] out’. The complainant further stated that ‘she couldn’t move or couldn’t scream or yell’.
Arrest and interview
On 12 April 2019, a search warrant was executed at DG’s residence. DG’s sister’s vehicle, together with an iPhone and several clothing items, were seized by police and DG was arrested and remanded in custody.
During a record of interview, DG largely corroborated the events leading up to the alleged offending. However, with respect to the alleged offending, DG stated that it had been the complainant’s idea to drive past her residence and go to a quiet street where they could have sex. It was DG’s evidence that he had instead suggested having oral sex, but that the complainant had declined and suggested that they have sex. DG stated that he ‘finally obliged’ and attempted to have sex with the complainant, but advised that he was unable to get an erection due to fatigue. He stated that he was not sure whether he penetrated the complainant’s vagina with his penis, but opined that it was ‘doubtful’ due to him being unable to get an erection.
In terms of the co-accused’s involvement, DG stated that the complainant’s friend had been the one to ‘make a move’ on the co-accused and that it had been her suggestion to give him oral sex. DG stated that he recalled laughing with the co-accused, because neither of them could get an erection.
DG confirmed driving the complainant and her friend to an intersection after the alleged events. He reiterated that any sexual activity that occurred between himself and the complainant, or between the co-accused and the complainant’s friend, was consensual and had been instigated by the complainant and her friend respectively.
Outstanding matter
In addition to the charges relating to the offences allegedly committed on 5 April 2019, DG has the following charges presently outstanding against him. They are summarised below.
Informant Garside
At approximately 10.15 pm on 8 March 2019, DG was congregated with a group of friends at Federation Square when a verbal argument broke out with other persons at that location. The argument escalated to a minor physical altercation, causing police officers to intervene and separate the parties.
In summary, the prosecution case is that DG became uncooperative and verbally abusive towards one of the intervening police officers. It is alleged that DG took up a ‘fighting stance’ against that police officer, before being sprayed with ‘OC’ (pepper spray) and ‘taken to the ground’ by police officers.
DG was arrested and a search was conducted which located $1,230 in Australian currency, a large quantity of small ‘deal bags’, hand scales, and a passport in another name. DG allegedly provided a false name to police, being the name that was on that passport. He subsequently refused to attend the Melbourne West Police Station with a parent or guardian for the purposes of conducting an interview.
On 10 May 2019, DG was charged on summons with behaving in a riotous manner in a public place and stating a false name when requested. This matter is next listed for mention in the Melbourne Children’s Court on 2 December 2019.
The applicant
DG is a 16-year-old child. He was born overseas and moved to Australia with his family at the age of 10. Prior to his remand, DG was residing with his mother and two older siblings. DG reports growing up in a ‘strict’ environment, but denies experiencing any inappropriate discipline. However, it is noted that this is inconsistent with Child Protection reports which cite the use of physical discipline in the family home as well as one alleged instance of DG’s father threatening to kill either DG or one of his siblings. Notwithstanding this, and despite DG’s parents having been separated for a number of years, DG maintains regular contact with his father. It appears that, since DG has been on remand, his father has returned to the family home.
There is evidence that DG has a history of alcohol and illicit substance use. However, the extent of this use is unclear due to conflicting accounts provided by DG to his Youth Justice worker and clinical psychologist.
DG has a limited criminal history, without conviction, involving possession of a firearm and affray.
Youth Justice Report
I have had regard to the Youth Justice Bail Service report dated 12 September 2019. Mr Reuben Hudd-Baillie, a case manager from Youth Justice and author of the Youth Justice Bail Service Report, gave viva voce evidence, which echoed the contents of his report. Mr Hudd-Baillie had met DG twice for the purpose of preparing his report.
In summary, Youth Justice considers DG unsuitable for bail service due to his previous non-compliance and lack of engagement with support services; the limited capacity of his family to monitor and report on his bail compliance; his disengagement from education and the lack of a structured day program available to reduce idle time; his limited insight into his alleged offending and the serious nature of the matters before the court. Youth Justice has implemented a number of strategies to attempt to mitigate the community risk. However, Youth Justice continue to have reservations as to DG’s capacity to comply with the restrictive nature of the intensive bail program. It is the assessment of Youth Justice that DG’s risks cannot be adequately mitigated if he is released into the community. However, were the Court to release DG on bail, Youth Justice recommended judicial monitoring along with the following conditions:
(a) Attend and comply with all directives of Youth Justice Intensive Bail Support Service.
(b) Not to leave residential address between the hours of 7:00pm and 8:00am unless in the company of a parent or delegate/nominee of Youth Justice.
(c) Not to contact alleged victims directly or indirectly, including electronically.
(d) Not to associate with the co-accused.
(e) Not to consume any drugs or alcohol.
(f) Not to drive a motor vehicle.
The report considered the following factors support bail compliance:
(a) DG’s limited history of Youth Justice involvement; and
(b) DG’s suitable accommodation.
In contrast, the factors that Youth Justice identified as increasing the risk of bail non-compliance were:
(a) Previous poor compliance with Youth Justice in the community;
(b) Concerns of the family’s ability to support compliance with bail;
(c) The influence of negative peers; and
(d) Historical disengagement from education.
Youth Justice engaged with DG and confirmed that the requirements of the Intensive Bail Service were explained to him, as well as the consequences of
non-compliance. It was noted that DG understood the obligations placed on him whilst subject to intensive bail would include: attendance to appointments with Youth Justice twice weekly at a minimum; engaging in a day program a minimum of 15 hours per week; alcohol and other drug counselling; engaging in family therapy; participating with afterhours support services; and adherence to any special bail conditions imposed by the Court. DG confirmed his understanding of the possible consequences should he fail to comply with any of these conditions and presented as eager to participate in Youth Justice Intensive Bail Service.
DG reported that he was willing to comply with the above services and any conditions that would be imposed by the Court should he be granted bail.
In addition to supervision at least twice weekly, Youth Justice recommended maintaining daily contact with the care team and DG’s family in order to monitor DG’s compliance throughout the week.
Applicant’s material and contentions
The application for bail is supported by an affidavit affirmed by DG’s solicitor, Mr Jacob Mildren. In his affidavit, Mr Mildren deposes to the facts relied upon as showing a compelling reason, which may be summarised as follows.
(a) DG is a child with a limited criminal history. Prior to his arrest in relation to the informant Vaughan matter, DG had never been in custody or subject to a grant of bail. As such, he has no negative bail history. Additionally, while it is conceded that DG is under investigation for a further allegation of rape alleged to have occurred on 24 March 2019 (‘the outstanding rape investigation’), it is submitted that evidence was previously given by the nominal informant to the effect that he believed no charges would be authorised in relation to that matter.
(b) DG has suitable accommodation available to him with his family, who have expressed that DG would be welcome to return to the family home. During DG’s previous application for bail, his father gave evidence to the effect that he was willing to support DG in complying with any conditions of bail, and further that he would be prepared to contact Youth Justice or Victoria Police (as relevant) if he became aware that DG was not complying with conditions of bail. Additionally, DG’s father gave evidence that DG’s sister would assist both himself and DG’s mother in communicating with Youth Justice or Victoria Police, in the event of any language barriers. DG’s father cited having a strong relationship with DG and indicated that DG was receiving regular visits from family members while in custody.
(c) DG has an opportunity to continue pursuing his education. He would be supported in this transition by Parkville College if bail were to be granted. During DG’s previous application for bail, it was noted that DG was positively engaged at Parkville College and well-respected by his teachers. Additionally, it is noted in support of the present application that DG is eager to explore training and employment opportunities in the near future.
(d) Notwithstanding DG being assessed as unsuitable to engage with the Youth Justice bail program, there is a comprehensive and intensive bail program available to him through Youth Justice if bail is granted. The matters set out in s 3B of the Act were rehearsed in detail as pertinent considerations on the application.
(e) The prosecution case relies heavily on the visual and audio recording evidence (‘VARE’) of the complainant in this matter. It is submitted that there are discrepancies between the complainant’s VARE and other evidence, to the extent that there is reasonable doubt regarding the allegations against DG. Additionally, it is noted that the complainant’s friend will not be making a VARE statement. With the exception of the unlicensed driving charge, DG intends to plead not guilty to the charges against him.
(f) A four-day contested hearing has been listed on 2 December 2019. If DG were to remain on remand, at the commencement of that hearing he will have spent 234 days in custody. It is submitted that this period is likely to exceed any custodial sentence that would be imposed if DG were to be found guilty of the charges against him.
(g) There are appropriate conditions of bail that could be imposed to ameliorate any unacceptable risk alleged by the respondent to an acceptable level. It is noted that the bail decision maker in respect of the co-accused’s previous application for bail was able to be so satisfied, notwithstanding the gravity of the charges against him (namely, two charges of rape).
(h)
In addition, DG’s father gave viva voce evidence. He was rigorously
cross-examined about the circumstances that gave rise to him leaving the family home two-and-a-half years ago as a result of an assault on his wife, which DG observed. As a result, an intervention order was placed on DG’s father. DG’s father said that approximately two months ago, he decided with his wife that he should come back to live in the family home so that he could provide support for DG. DG’s father first became aware of the alleged rape offence against DG while giving evidence in court. He was visibly shocked and said he felt shame. I accept that DG’s father understood the nature and severity of the alleged rape charge against DG. I accept his evidence that if DG breaches any bail conditions, he will, regardless of the excuse offered by DG, report it to the relevant authority. In his mind, this is the police.[16]
[16]Transcript of Proceedings, Re DG (Supreme Court of Victoria, Zammit J, 13 September 2019) 45 (‘T’).
Respondent’s material and contentions
In opposition to bail being granted, the respondent relies upon an affidavit sworn by the solicitor with carriage of the matter for the respondent, Craig Stabler. In that affidavit, Mr Stabler deposes that bail is opposed on the basis that DG has not demonstrated a compelling reason justifying the grant of bail. Moreover, it is contended that DG is an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, and ‘not abiding by conditions of bail given’.[17]
[17]Notwithstanding that the third ground, unlike the first two grounds, is not prescribed under s 4E of the Act as a matter for the Court to consider when assessing ‘unacceptable risk’. Section 4E(1)(a)(iv) of the Act only prescribes for the Court to consider whether there is a risk that the applicant, if released on bail, would ‘fail to surrender into custody in accordance with the conditions of bail’.
In support of those contentions, the respondent relies on the gravity of the charges against DG as well as his purported involvement in the outstanding rape investigation. While it has been suggested by DG that charges will not be authorised in relation to that investigation, the respondent submits that this is incorrect. Particularly, it is noted that the informant in that matter, who is presently on annual leave, has not stated whether charges will be authorised.
Additionally, in support of the respondent’s position, it is submitted that DG lacks insight into the seriousness of the alleged offending and has demonstrated a disregard for previous court orders. This is evidenced, it is submitted, by the alleged offending in the informant Vaughan matter occurring during the period that DG was on a deferral of sentence for violent offending.
Further, the respondent refers to DG’s history of poor engagement with educational and support services (notwithstanding DG’s submission regarding positive engagement with education) and expresses concerns that DG does not have the necessary structured routine to mitigate risks caused by ‘idle time’. It is submitted that the presence of DG’s father in the family home does little to ameliorate these risks.
In further support of the respondent’s contentions relating to risk, it is noted that DG has been assessed by Youth Justice as being a ‘significant risk to the community’. Notwithstanding proposed strategies for mitigating DG’s risk in the community, the respondent notes that Youth Justice has expressed reservations regarding DG’s willingness and capacity to comply with the intensive bail program.
Finally, in terms of the strength of the prosecution case, the respondent relies on the complainant’s VARE statement; the statements of the taxi driver and the complainant’s sister; messages between the complainant and JT; and the (unspecified) inconsistencies in DG’s statement.
Discussion
Compelling reason
Having regard to the submissions and evidence before me, and taking into account the surrounding circumstances, I am satisfied DG has shown the existence of a compelling reason which justifies the grant of bail, through a combination of factors.
In determining this application, I place particular significance on DG’s age, his limited criminal history, and the substantial length of time he has already spent in custody. I accept the submission that even if found guilty of the contested charges, there is a realistic possibility DG would not receive a custodial sentence significantly exceeding the time spent on remand.
Further, DG has strong support from his mother, father and siblings. The evidence given by DG’s father at the hearing of this application was of a supportive and loving family who are committed to DG pursuing his studies and vocational training.
DG has indicated he is now willing to commence studies at a tertiary institute. The course is a realistic option for DG and provides him with a real pathway to employment. DG demonstrates a genuine desire to complete the course, which is due to commence in early October 2019. I note that DG expressed a desire to engage in this course 12 months ago, and he attempted to self-enrol in a similar course earlier this year before he was remanded.[18] The course will provide DG with a fresh start in relation to his education and vocational training as well as access to a broader range of people in his age group. It will also provide him with meaningful engagement during the day and reduce his idle time. I am informed that the course is full-time and has a 3-month duration.
[18]Youth Justice Bail Service report dated 12 September 2019.
I acknowledge that the charges against DG are very serious. However, considering the totality of the circumstances and factors set out in s 3B(1) of the Act, I am satisfied that a compelling reason has been shown.
Unacceptable risk
The respondent submits that there is an unacceptable risk that DG will commit offences while on bail. I will now address whether DG poses an unacceptable risk.
Although DG does not have a history of committing offences while on bail, I note that he was on a deferred sentence for violent offending at the time of committing the alleged offences which form the subject of this application.
On the evidence before me, there appears to be a lack of relevant prior history and it is extremely equivocal whether charges will be authorised for any other allegation. In the alternative, any risk of committing offences or endangering the safety and welfare of any person can be mitigated with appropriate bail conditions. I note the respondent’s concern that DG may try to interfere with witnesses, in particular the complainant. While there is no evidence that DG has or will try to contact or interfere with witnesses, this can again be mitigated with appropriate bail conditions.
The respondent submits that DG poses an unacceptable risk, in that it is likely he will not abide by conditions of bail given:
(a) his limited insight into the serious nature of the matters before the court;
(b) the prosecution case is not weak;
(c) DG’s offending occurred during a Youth Justice deferral of sentence period;
(d) the Youth Justice report concludes DG’s release would be a significant risk to the community, and despite suggesting a number of strategies to mitigate the risk, they are doubtful of DG’s capacity to comply with the intensive nature of such an intensive bail program;
(e) non-compliance and lack of engagement with support services previously;
(f) disengagement with education and lack of a structured day program to reduce idle time; and
(g) the presence of the father in the household is not sufficient to prevent DG from committing offences whilst on bail or abiding by the bail conditions.
The evidence is that DG has limited insight into the nature and seriousness of the charges against him. DG denies the charges. As I have said, the charges are very serious. The presumption of innocence and the right to liberty are important considerations in this application.[19] It is not appropriate on this application to set out any detailed analysis concerning the strength or otherwise of the Crown case. It is sufficient to say that there are issues between the parties that are capable of being tested.
[19]Bail Act ss 1B(1)(b), (2).
I consider any limited insight into the serious nature of the matters before the Court can be mitigated by the provision of appropriate support to DG and the imposition of bail conditions. There has been significant evidence about DG’s previous poor compliance with Youth Justice in the community. The history of poor compliance dates back to a period of deferral in 2018 and early 2019. In contrast, DG’s transition teacher at Parkville College has given evidence that DG has been consistently engaged in education at Parkville College; attending classes such as literacy, enquiry, art, physical education, personal training, barbering and music. He notes that DG’s attendance in classes is nearly double the average of most students at Parkville College and that DG has demonstrated a positive attitude towards his education over the time he has been enrolled at Parkville College. Importantly, DG’s transition teacher notes that DG has demonstrated impressive leadership by modelling respectful and courteous behaviour towards teachers, custodial staff and his peers.
DG’s transition teacher reports that DG had certain vocational goals for the last three years and that he now has the opportunity to commence a relevant course in early October 2019. DG’s transition teacher notes that unlike mainstream high school, this course is directly connected to DG’s desired vocation and it is for that reason that he believes DG will not only engage well, but complete the required work at a high standard.[20]
[20]Exhibit J, letter from Tom Pearce of Parkville College to the Children’s Court dated 27 August 2019; Affidavit of Jacob Mildren in support of application, affirmed 6 September 2019.
As I have already noted, DG’s involvement in a 3-month course will provide much needed structure to his days and significantly reduce idle time.
The most current Youth Justice Bail Service report and Mr Hudd-Baillie’s evidence is that DG has confirmed his understanding of the requirements of the Intensive Bail Service, the possible consequences should he fail to comply with any of the services, and that he was eager to participate in the Youth Justice Bail Service. I have had regard to the Youth Justice Bail Service Report and Mr Hudd-Baillie’s evidence that Youth Justice has, on three separate occasions, deemed DG to be unsuitable for bail service.
DG has been involved in 14 incidents since he was remanded on 12 April 2019. Notwithstanding this, the custodial staff have reported that DG’s behaviour is generally positive and respectful. The unit coordinator reports that most of these physical altercations were instigated by other young people and that DG doesn’t appear to antagonise or seek out conflict amongst the young people.
The respondent submits that the presence in the household of DG’s father is insufficient to prevent DG from committing further offences on bail or to influence him to abide by any bail conditions. I accept that the evidence suggests that prior to DG’s period in remand, his mother had little influence or ability to affect DG’s movement and his peer group. I also note that DG had limited access and time with his father prior to being placed on remand. However, DG would now return to a home in which his father and mother both reside, along with his sister and two-year-old niece.
DG’s parents have indicated that they would help DG comply with any bail conditions that were imposed on him. His father has given evidence that he is willing to call the police or Youth Justice if he knew that bail conditions were being breached, regardless of any excuse that DG may give.[21] Further, DG’s sister could assist his father and mother to contact police or Youth Justice if there was a language barrier.
[21]T45.
I am satisfied that DG’s parents, in particular his father, understand the gravity of the situation and the serious consequences for DG if bail conditions are breached.
DG has a stable and loving home to reside in and has a close relationship with his family. This factor will be a significant resource to help DG comply with bail conditions and continue to mature and engage in his studies.
I note that while Youth Justice considers DG unsuitable for bail services, Mr Hudd-Baillie gave evidence confirming that Youth Justice would continue to support DG if he was released on supervised bail. The intensive bail program provides a comprehensive range of service and support, which operate in addition to the support of DG’s family and his attendance at the course, to provide DG with an extensive net of support and supervision.[22]
[22]T52–3, 77–8.
Conclusion
In conclusion, I acknowledge that DG poses some risk in the ways advanced by the respondent. However, I consider those risks may be rendered acceptable by the strict conditions that will be imposed. As a result, I order that:
DG be admitted to bail on his own undertaking on the following conditions:
1. He attend the Melbourne Children’s Court on a date to be set for judicial monitoring and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2.He reside at his family home, and not change that address without the leave of the Court, or on the lawful direction of Reuben Hudd-Baillie of Youth Justice or his nominees.
3.He remain at those premises between the hours of 7:00pm and 6:00am each day for the duration of the bail, unless in the company of a parent or delegate/nominee of Youth Justice.
4.He present himself at the front door of the premises during those curfew hours if and when called upon by a member of the Victoria Police to do so.
5.He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
6.He report to Reuben Hudd-Baillie by Tuesday 17 September 2019.
7.He attend the Youth Justice Intensive Bail Program/Supervised Bail Support Service, and:
a. comply with all lawful directions of any officer of Youth Justice;
b. attend all appointments as directed by any officer of Youth Justice; and
c.participate in psychosocial counselling and engage with any other health or support services as directed by any officer of Youth Justice.
8.He comply with the Parkville College transition plan.
9.He not contact, directly or indirectly, including electronically, the co-accused, being MM, for the duration of the bail period.
10.He not contact, directly or indirectly, including electronically, any alleged victims for the duration of the bail period.
11.He not contact, directly or indirectly, including electronically, any witness for the prosecution, except the informant.
12.He not leave the State of Victoria.
13.He surrender any passport he may have to the informant within 24 hours.
14.He not drive a motor vehicle.