Re DR
[2019] VSC 151
•13 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0031
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by DR | |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2019 & 8 March 2019 |
DATE OF JUDGMENT: | 13 March 2019 |
CASE MAY BE CITED AS: | Re DR |
MEDIUM NEUTRAL CITATION: | [2019] VSC 151 |
---
CRIMINAL LAW – Application for bail – Child applicant – Charges of theft, unlicensed driving, aggravated home invasion, aggravated burglary, recklessly causing injury, affray, unlawful assault – Applicant required to show exceptional circumstances – Youth Justice not supporting bail – Mental health concerns – PTSD resulting from traumatic childhood – Limited criminal history – Time spent in custody – Likely sentence – Family support – Bail granted with conditions – Bail Act 1977.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N. Karapanagiotidis | James Dowsley & Associates |
| For the Respondent | Mr N. Moran | Victoria Police |
HIS HONOUR:
Introduction
The applicant is 16 years old and has been in custody since 8 August 2018.
On 5 February 2019, the applicant filed an application for bail in this Court in respect to various charges relating to incidents alleged to have occurred between 10 June and 11 August 2018.
At the time of all alleged offences, the applicant was on a 12 month good behaviour bond, granted by the Werribee Children’s Court on 1 May 2018.
The alleged offending
Informant Mason
On 10 June 2018 at approximately 5.15am, four individuals entered a home in Pakenham. They located car keys and left the premises, stealing a vehicle. At approximately 5.41am, the vehicle attended a service station in Longwarry, where a male filled it with petrol to the value of $71.16 and left without paying.
Later that morning, a witness reported the vehicle parked on a nature strip in Traralgon. Police arrested a group of eight teenagers, including the applicant, in that vicinity. Video footage was located on the phone of one of the co-accused, depicting the applicant in the driver’s seat of a vehicle resembling the stolen sedan. All individuals were released pending further inquiries.
The applicant was arrested on 14 June 2018 and gave a no comment interview regarding the allegations. He was charged with aggravated home invasion, home invasion, aggravated burglary, burglary, unlicensed driving, theft (two counts), handling stolen goods, and using a controlled weapon without excuse. On 28 June 2018, the Dandenong Children’s Court granted the applicant bail on these charges.
On 26 November 2018, the Dandenong Children’s Court acquitted the applicant of all charges, except one count of theft and unlicensed driving. On 14 December 2018, the Court refused an application for bail in respect to these remaining charges, which are next listed on 21 March 2019 for a part heard plea.
Informant Tom
At approximately 1.55am on 6 August 2018, it is alleged that the applicant and three co-accused attended an address in Corio, where a female and male resident were at home. The applicant allegedly kicked open the locked front door and entered with two of the co-accused. One of the co-accused yelled at the female complainant to find the car keys, and she responded that her husband had them.
It is alleged the applicant and a co-accused moved towards the male complainant, holding an activated Taser and asking for car keys. The applicant allegedly punched him, causing him to fall backwards and hit his head, resulting in a substantial cut to the top of his head. The applicant stood over the male complainant and allegedly pushed the Taser into his chest, activating it several times. The complainant did not sustain any electrical shocks due to his heavy clothing. The female complainant screamed at them to leave, while armed with a large carving knife, and the group fled.
On 8 August 2018, the applicant was arrested and charged with aggravated home invasion, aggravated burglary, and recklessly causing injury. He denied being involved in the incident and said he was asleep at home.
The applicant was remanded and, on 17 August 2018, the previous grant of bail for the Informant Mason charges was revoked. On 12 December 2018, the applicant was refused bail by the Geelong Children’s Court.
These charges are listed for a two day contested hearing on 19 and 20 March 2019 in the Geelong Children’s Court.
Informant Ueding
On 11 August 2018, in a common room at the Parkville Youth Justice Centre, the applicant and a co-accused were allegedly involved in an attack on another child. It is alleged the applicant joined an existing fight, punching the complainant until staff intervened.
The applicant declined to participate in a recorded interview. On 15 October 2018, he was charged on summons with affray and unlawful assault in respect to this incident. On 7 January 2019, he was remanded by the Melbourne Children’s Court in respect to these charges.
On 29 January 2019, the applicant indicated he would enter a plea of guilty to affray, on the basis that the charge of assault was withdrawn. The matter was adjourned to be heard alongside the Informant Mason charges in the Dandenong Children’s Court for a consolidated part-heard plea on 21 March 2019.
Other outstanding matters
The applicant has three additional charges, for which he is on summons.
It is alleged that on 3 March 2018, the applicant and four others approached a male and female at a basketball court in Wyndham Vale. One of the individuals demanded the male complainant’s phone and slapped him to the face. Others allegedly grabbed him and punched and kicked his head and body, until he ran away.
On 4 June 2018, the applicant was charged with attempted robbery and unlawful assault in respect to this incident. The matter is listed for a two day contested hearing on 5 and 6 August 2019 in the Werribee Children’s Court.
It is also alleged that on 11 August 2018, while on remand, the applicant and four co-accused kicked and punched another child at the Parkville Youth Justice Centre for approximately 10 seconds, until staff intervened.
On 16 October 2018, the applicant was charged with additional counts of affray and unlawful assault. He has indicated he will plead guilty to affray, on the condition the unlawful assault charge is withdrawn. The matter is listed for a consolidated plea with the Informant Mason and Ueding matters on 21 March 2019 in the Dandenong Children’s Court.
The applicable legislation
Pursuant to s 346(6) of the Children, Youth and Families Act 2005 (‘the CYF Act’), the Bail Act 1977 (‘the Act’) applies to the present application, except insofar as it is inconsistent with the CYF Act.
Accordingly, pursuant to s 3B(1) of the Act, the Court is required to take into account the following matters:
(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.
On 8 August 2018, the applicant was charged, inter alia, with a Schedule 1 offence under the Act, namely, aggravated home invasion.[1] Pursuant to s 4AA(1) of the Act, the applicant is therefore subject to the exceptional circumstances test.
[1]Bail Act 1997 (Vic) sch 1 item 4.
The Court must refuse the application, unless satisfied that exceptional circumstances exist that justify the grant of bail, pursuant to s 4A(1A) of the Act. The applicant bears the burden of satisfying the Court that exceptional circumstances exist.[2]
[2]Ibid s 4A(2).
Pursuant to s 4A(3) of the Act, in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. Pursuant to s 3AAA of the Act, this includes, but is not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the ‘unacceptable risk test’.[3] Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[3]Ibid ss 4A(4), 4D(1)(a).
In making this determination, the Court is required to have regard to the surrounding circumstances set out at s 3AAA of the Act, and consider whether any conditions there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[4]
[4]Ibid s 4E(3).
The applicant
The applicant is 16 years old, and was 15 at the time of the alleged offending. He was born in Sudan and spent time in a refugee camp with his family, following the death of his father. The applicant and mother and two older siblings migrated to Australia in 2007. At the time of arrest, the applicant was completing year ten at school.
Mental health
The applicant filed a report by Dr Aaron Cunningham, forensic psychologist, dated 15 October 2018. Dr Cunningham assessed the applicant while on remand, concluding he indicated symptoms of depression.
The Court received a Youth Justice Bail Service Report (‘YJ Report’), authored by Youth Justice case manager, Ashleigh Tumino, dated 19 February 2019. The YJ Report states that the applicant reported experiencing pseudo-hallucinations and voices in his head instructing him to hurt others. Upon hearing this application on 22 February 2019, I adjourned the matter to allow for a psychiatric assessment of the applicant and a report to be completed.
Subsequently, the applicant filed a report by Dr Lester Walton, consultant psychiatrist, dated 6 March 2019. Dr Walton opines that the applicant suffers from chronic complex post-traumatic stress disorder (PTSD), and had experienced mental disturbance of ‘quasi-psychotic proportions with distortion of perception and a degree of paranoia’. Notably, Dr Walton concludes the applicant is not currently suffering from a diagnosable psychotic illness, and does not require active psychiatric treatment at present.
An addendum to the YJ Report, dated 6 March 2019, including a summary of the applicant’s engagement with Orygen Youth Health while on remand, was also filed. Dr Sharon Chua, psychiatric registrar, also concludes the applicant suffers from PTSD and attenuated psychotic symptoms, but does not have a psychotic disorder.
Youth Justice
In both the YJ Report and addendum, Youth Justice assessed the applicant as unsuitable for bail due to his non-compliance with previous bail supervised by Youth Justice, his behaviour in custody, and the serious nature of his charges.
The YJ Report states the applicant has been involved in nine incidents in custody, two of which allegedly involved assaults on staff members. Ms Tumino gave evidence before me that some of these incidents, in addition to those already resulting in the charges outlined above, have been referred to police.
Ms Tumino deems the applicant to be at a high risk of reoffending due to his inability to regulate anger, his responses when challenged, and his resistance to participation in rehabilitation programs.
The YJ Report acknowledges the applicant is now able to return to school, which was a key issue cited in a previous report dated 12 December 2018. However, Ms Tumino concludes that other risk factors outweigh this protective factor. She noted concerns as to the ability of the applicant’s family to control his behaviour and movements, especially at night.
Criminal history
The applicant has a limited criminal history. On 20 October 2017, a forfeiture order was made by consent in respect to a charge of carrying a controlled weapon without excuse. On 1 May 2018, the Werribee Children’s Court placed him on a 12 month good behaviour bond for theft (two counts), armed robbery, carrying a controlled weapon without excuse, and committing an indictable offence whilst on bail.
The applicant’s submissions
The applicant contends that the following matters are established by the evidence and together demonstrate exceptional circumstances that justify the grant of bail.
Time spent in custody and likely sentence
The applicant has been in custody since 8 August 2018. At the hearing on 8 March 2019, both parties noted that the applicant had spent 212 days on remand. The applicant submits that this is a significant period of time, particularly for a child with a limited criminal history in custody for the first time. It is also submitted that he has experienced particular difficulties in custody due to his mental health issues, which result largely from trauma and dislocation experienced as a young child.
It was noted that although there is an arguable prosecution case, the applicant is contesting the Informant Tom charges. The applicant is also on summons for other outstanding charges, listed for a two day contested hearing on 5 August 2019. It was submitted there is a possibility that sentencing for all matters may be adjourned, to allow for the charges on summons to be determined. This could result in the applicant remaining in custody for an even longer period, until at least August 2019.
The applicant submits that even if the applicant is found guilty of the Informant Tom charges, he is unlikely to receive a custodial sentence beyond the time already spent on remand. It is argued that it is more likely he would be sentenced to a supervisory order, given his age and minor criminal history.
Availability of mental health and Youth Justice support
It was submitted, with reference to Dr Walton’s report, that the applicant’s mental health has stabilised. Should he be granted bail, it was submitted that appropriate supervision and monitoring could be organised with Orygen Youth Health, including an initial community appointment upon release.
Acknowledging that Youth Justice do not support this application, it was submitted that the applicant, if granted bail, would nevertheless have access to Youth Justice services. The applicant referred to the supervised bail timetable annexed to the Youth Justice addendum report, showing tentative appointments for the applicant to return to school fulltime and engage in alcohol and drug counselling.
I note that following the hearing of this application, the Court was provided with an updated supervised bail timetable for the period 11 March 2019 to 29 March 2019. Should the applicant be granted bail, this provides for his return to school on 14 March 2019. A copy of this timetable is annexed to these reasons.
Family support and suitable accommodation
The applicant submits that he enjoys the support of his family, particularly his mother and two siblings. At the hearing, I heard evidence from the applicant’s sister, who is 20 years old and lives in the family home. She confirmed that her family are keen for the applicant to return home, and have visited him regularly in custody. His sister also gave evidence as to her belief that the applicant understands the severity of the present charges and has reflected on this while in custody.
The applicant’s sister gave further evidence as to the possibility of the applicant attending counselling at Foundation House, a service for individuals of refugee backgrounds who have experienced torture or other trauma.
Bail history
The applicant was on bail for the Informant Mason matter when he allegedly committed the Informant Tom offences on 6 August 2018. Counsel for the applicant submits that this history of non-compliance is relatively limited, as he was only granted bail on 28 June 2018. It is submitted that this should not be an important factor in this application, and other applicants are granted bail despite long histories of non-compliance.
Risk factors
The applicant notes he was acquitted of the most serious charges in the Informant Mason matter, and submits this should be significant in the Court’s assessment of risk.
It is acknowledged there are two sets of charges arising out of incidents alleged to have occurred while the applicant has been on remand. However, it is submitted he has shown maturity and demonstrated improved behaviour in more recent months. It is submitted that family support, engagement with school and Youth Justice, and appropriate conditions, would alleviate risks attached to a grant of bail.
The respondent’s submissions
The respondent submits the applicant has not shown exceptional circumstances exist that justify the grant of bail. It is submitted there is a strong case against the applicant in relation to the Informant Tom charges, including several witnesses and a co-accused who is prepared to give evidence against him.
It is further argued that the applicant is an unacceptable risk of endangering the safety and welfare of persons, and of committing an offence whilst on bail. The respondent submits the following matters support this submission:
·the applicant’s alleged offending involves innocent and vulnerable members of the public;
·the applicant has allegedly been involved in several assaults while in custody;
·the applicant has a concerning criminal history and was on a good behaviour bond for offences, including armed robbery and theft, at the time of the present charges;
·the applicant is alleged to have committed serious offences whilst on bail for other serious offences;
·the applicant was supported by his family and living in the family home at the time of the alleged offending; and
·the applicant has been aggressive towards police, threatening violence and making derogatory remarks towards members and their families.
Conclusions
Exceptional circumstances
It is widely observed that the hurdle facing an applicant in establishing exceptional circumstances is ‘a high one’,[5] and that to be exceptional, the circumstances relied upon ‘must be such as to take the case out of the normal so as to justify the admission of the applicant to bail’.[6] However, it is not an impossible standard to reach. As Hollingworth J noted in Hang Cao v DPP:
It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon … But, although the hurdle is a high one, it ‘should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.’ [7]
[5]See e.g. Armstrong v R [2013] VSC 111 [31], referencing Re Whiteside [1999] VSC 413.
[6]Re Sam [2017] VSC 91 [22].
[7][2015] VSC 198 [7], citing Whiteside [1999] VSC 413 [10].
It is also widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors.[8]
[8]See e.g. Armstrong v R [2013] VSC 111 [31]; R v Chung [2015] VSC 487 [15]–[31].
Importantly for the purposes of this application, T Forrest J further discussed the test in the context of a child applicant in Re JO:
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.[9]
[9][2018] VSC 438 [14].
On the submissions and evidence before me, and taking into account the surrounding circumstances, I am satisfied that the applicant has shown exceptional circumstances exist that justify the grant of bail, through a combination of factors.
In determining this application, I place particular significance on the age of the applicant, 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 he would not receive a custodial sentence exceeding the time spent on remand.
Further, the applicant has strong support from his mother and two siblings. The evidence given by the applicant’s sister at the hearing of this application was a commendable account of a hardworking family who are committed to supporting the applicant and his return to school.
I acknowledge that the charges against the applicant are serious. However, considering the totality of the circumstances and the factors set out in s 3B(1) of the Act, I conclude that exceptional circumstances have been shown.
Unacceptable risk
Additionally, I am of the opinion that strict conditions can be imposed to ameliorate the risks of granting the applicant bail to an acceptable level. In particular, these conditions will focus on the applicant’s return to school as part of a co-ordinated program directed by Youth Justice. I have taken the surrounding circumstances into account in reaching this conclusion.
Accordingly, I will grant bail to the applicant on the following conditions:
(a)He attend the Geelong Children’s Court on 19 March 2019 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.
(b)He reside at [an approved address], and not change that address without the leave of the Court.
(c)He remain at those premises between the hours of 8.00pm and 6.00am each day for the duration of bail.
(d)He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e)He report Monday, Wednesday and Friday to the Werribee Police Station between the hours of 6.00am and 8.00pm.
(f)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.
(g)He provide a sample of his saliva for testing if required to do so by any member of Victoria Police.
(h)He report to Youth Justice within two working days after this order coming into force.
(i)He attend the Youth Justice Supervised Bail Program, and:
(i)comply with all lawful directions of any officer of Youth Justice; and
(ii)attend all appointments as directed by any officer of Youth Justice.
(j)He attend [school] every Monday to Friday that is a school day, unless a medical certificate is obtained and provided to the College …
(k)He not contact, directly or indirectly, the co-accused … for the duration of the bail period.
(l)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(m)He not leave the State of Victoria.
(n)He surrender any passport he may have to the informant within 24 hours.
(o)He not attend any points of international departure.
(p)He reappear before the Court for judicial monitoring to review his compliance with this order at 9.00am on 27 March 2019, and any further dates this Court appoints during the course of this order.
ANNEXURE