Re DS (a pseudonym)
[2024] VSC 823
•23 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0292
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by DS (a pseudonym)[1] |
[1]As the applicant is under 18 years of age, a pseudonym has been adopted pursuant to s 534 of the Children, Youth and Families Act 2005 (Vic).
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 December 2024 |
DATE OF JUDGMENT: | 23 December 2024 |
CASE MAY BE CITED AS: | Re DS (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 823 |
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CRIMINAL LAW — Bail application — Applicant charged with home invasion, aggravated burglary person present, burglary, theft of motor vehicle, obtaining property by deception, theft, retaining stolen goods — Whether exceptional circumstances established — Whether unacceptable risk of endangering the safety and welfare of others —Applicant 14 years of age — Applicant diagnosed with Attention Deficit Hyperactivity Disorder and Generalised Anxiety Disorder—Difficult circumstances in custody — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Kounnas | McFarlane Criminal Lawyers |
| For the Respondent | Ms J Hotchkin | Victoria Police |
HIS HONOUR:
The applicant, who is 14 years of age, is subject to three sets of charges for indictable offences, alleged to have been committed between 6 July 2024 and 12 November 2024. Following his arrest on 13 November, he was remanded in custody. On 10 December 2024, his most recent application for bail to the Wonthaggi Children’s Court was refused. He now applies to this Court for bail.
The alleged offending
For the purposes of the application, it is necessary to set out the circumstances of the alleged offending in brief detail.
(1) The Cole charges
The first set of charges, laid by Detective Sergeant Leigh Cole, comprises one charge of home invasion (charge 1), four charges of theft of a motor vehicle (charges 2, 3, 4 and 8), one charge of obtaining property by deception (charge 5), one charge of burglary (charge 6), and three charges of theft (charges 7, 10 and 11).
It is alleged that, at some time between 9:30 pm on 16 September 2024 and 4:15 am on 17 September 2024, offenders entered a home through an unlocked laundry door. The owner of the house was asleep in his bedroom. The offenders stole keys for two motor vehicles and a bankcard belonging to the victim. They then stole both vehicles, namely, an Alfa Romeo sedan and a Holden Commodore. On 17 September 2024 at 5:18 am, the Alfa Romeo sedan attended at a service station in Braeside. It is alleged that CCTV footage depicts that the applicant exited the passenger seat, entered the store, and, using the victim’s stolen bankcard, purchased a beverage for $4.20. He then left the store in the stolen vehicle. Subsequently, the stolen Holden Commodore vehicle was recovered in Lyndhurst. On examination, a fingerprint belonging to the applicant was lifted from the internal surface of the driver’s side window. Those matters are the subject of charges 3, 4 and 5, namely, two charges of theft of a motor vehicle, and one charge of obtaining property by deception.
It is further alleged that, on 7 November 2024, the applicant, with an unknown female, was captured on CCTV footage at about 4:30 pm, walking in the grounds of Korumburra Secondary College. He was observed, peering into multiple classrooms, and he then appeared to cut the flyscreen on the window of the science laboratory. Subsequently, at 9:00 pm, it is alleged the applicant and the female returned to the school. At that time, the applicant was wearing a dark hooded jumper. The applicant and the female were carrying bags. It is alleged the applicant broke the window, on which he had earlier cut the flyscreen, entered the science laboratory, opened the door, and let the female in. When inside, they stole scientific equipment, including glassware and burners, valued at $2,000, before leaving. That conduct is the subject of charges 6 and 7 (burglary and theft).
At approximately 5:20 am on 10 November 2024, one SC[2] and other unknown offenders attended premises in Cape Patterson. They broke into the premises by throwing a rock through the glass front door, while the residents were asleep inside. The offenders took the key to a 2019 Subaru wagon, and then stole the vehicle from the driveway of the address. On the next day, 11 November 2024, at about 7:00 pm, one KJ[3] and SC, attended at a service station in Bass in the stolen 2019 Subaru wagon. They then drove away without any attempt to pay.
[2]A pseudonym
[3]A pseudonym.
On the following day, 12 November 2024, at approximately 2:45 am, it is alleged that the applicant, KJ and SC attended a residence in Leongatha in the stolen Subaru vehicle. The premises are a residence used by doctors in an attached medical clinic. Two residents, Alyssa Mohiuddin–Shah and Veronica Foote, were asleep in separate bedrooms. It is alleged that the applicant and the co-accused entered the house, and one of them then entered the bedroom of Ms Mohiuddin-Shah, crawling along the floor and going through her personal belongings. When Ms Mohiuddin-Shah woke, she called out, and the offender ran out of the room. Ms Mohiuddin-Shah closed her bedroom door and leant against it. The applicant and the co-offender then forced their way back into her bedroom, while she was attempting to hold it closed. One of the two offenders was in possession of a metal bar, that looked like the handle off a large socket set. He held it in the air, threatening the victim. Both the applicant and his co-offender demanded that the victim give them her car keys. During the altercation, Ms Foote came out of her bedroom and observed one of the offenders holding the metal bar in a threatening manner. Ms Mohiuddin-Shah gave the offenders her vehicle keys by throwing them out the bedroom door. The offenders then left the house, and used the keys to steal Ms Mohiuddin-Shah’s 2015 Mercedes Benz vehicle.
A forensic examination of the address was conducted by police. The applicant’s fingerprints were located on the victim’s bedroom door.
At 7:41 am on the same date, the applicant and co-accused, KJ and SC, attended the home address of an associate, Brooke Barrett in the stolen Subaru. Shortly after 8:09 am, Detective Senior Constable Johnston drove past the premises and observed the stolen Subaru outside it.
The above conduct is the subject of charges 1 and 2 (home invasion and theft of motor vehicle).
At 2:00 pm on 12 November 2024, Dias Gunathilaka parked his Toyota Rav 4 vehicle outside shops in Mount Waverley. While he was inside the shop, he observed a male offender enter the vehicle and steal it, driving off in company with a white Subaru that was driven by another young male. At approximately 4:26 pm on the same date, the stolen Toyota vehicle attended at a Shell petrol station in Nar Nar Goon. It is alleged the applicant filled the vehicle with $66.14 of fuel, and then got back into the vehicle, which drove off without any attempt being made to pay for the fuel.
Subsequently, at 5:30 pm on the same day, a witness, Izak Kennedy, observed a stolen Toyota Rav 4 driving in the Leongatha area. There were three persons in the vehicle. Mr Kennedy followed the vehicle, as he thought the people in it appeared to be too young to be driving a motor vehicle. Mr Kennedy observed the driver of the vehicle exit and run away. Mr Kennedy executed a U-turn, and observed the person, who is alleged to be the applicant, in the driver’s seat. As a result, Mr Kennedy contacted emergency number 000. Shortly after making that phone call, he observed the Rav 4 driving past him at a fast speed. The above conduct constituted charge 8 (theft of a motor vehicle) and charge 11 (theft).
On the same date, 12 November 2024, a witness observed two persons attempting to break into the rear of a tobacco store in Main Street, Foster, using an axe to do so. When the witness went to investigate, the two offenders drove off rapidly in a silver Toyota Rav 4 vehicle. About ten minutes later, they returned in the same vehicle, smashed the front doors of the tobacco store, and entered the building. Once inside, they stole tobacco products and drove off. At approximately 12:30 am on 13 November, police located the stolen vehicle, just outside Leongatha. At 8:10 am on the same date, police executed a search warrant at premises in Korumburra. The applicant was present with two other young persons at the address. During a search of the address, over 70 packets of cigarettes, stolen from the tobacco store in Foster, were located. Those circumstances are the subject of charges 9 and 10 (burglary and theft).
The applicant was arrested and interviewed by police on the above matters on 13 November 2024. He was remanded in custody. On 22 November 2024, an application, by the applicant, for bail to the Latrobe Valley Children’s Court was refused on the basis that he posed an unacceptable risk to the community.
(2) The Yeomans charges
The informant on the second set of charges is Detective Senior Constable Amanda Yeomans of the Bass Coast CIU. The charges comprise two charges of aggravated burglary (charges 2 and 3), and one charge of theft of a motor vehicle (charge 1).
The incident that is the subject of charge 3 (aggravated burglary) took place on the night of Friday, 5 July 2024, or in the early morning of Saturday, 6 July 2024 at premises in Inverloch. At that time, the owner of the house, and seven other persons, were all present and asleep. Intruders gained access to the residence through the rear, unlocked sliding glass doors. A number of items were stolen, including a set of motor vehicle keys, two wallets (containing a total of $1,400), two other sets of keys, and $800 cash. The car keys were used to steal a silver Mercedes Benz station wagon. At 10:15 am on 6 July 2024, an explosion was heard in Fairbank Road/Newtons Road, Arawata. Police attended and identified the stolen Mercedes Benz station wagon which had been set alight. On the same date, police attended the premises in Inverloch. On forensic examination, a fingerprint was obtained on the exterior of the rear glass sliding door. The fingerprint returned a match to the applicant.
The incident, that is the subject of charge 2 (aggravated burglary), took place overnight between Tuesday, 6 August 2024 and Wednesday, 7 August 2024. At that time, the elderly victim was home alone, sleeping in his residence in McCartin Street, Leongatha. An intruder gained access to the property, through a large dog door in the laundry door, stole keys to the garage and to the new 2023 Hyundai Sonata sedan that was parked in the garage, and stole the motor vehicle. At 12:20 pm on 7 August, the victim identified the vehicle tracking device, depicting the vehicle being driven in Hallston. The applicant was located in the vehicle, with a co-accused, who was also aged 14 years. They were both arrested and interviewed at Wonthaggi Police Station. Police attended the premises at Leongatha and obtained a fingerprint on the exterior window sill to the laundry and laundry door. Those fingerprints matched the fingerprints of the applicant.
Charge 1 (theft of a motor vehicle) concerns circumstances that occurred overnight between 30 October 2024 and 31 October 2024. At that time, an intruder gained access to premises in Leongatha via a side sliding door. The house was ransacked, and a large amount of computer and gaming items were stolen. Also stolen was a 2017 green and black Kawasaki motorbike from the garage. At 7:57 am on 30 October, a witness, Gary Beard, who was in a motor vehicle driven by Karston Krohn, observed the motorbike overtake their vehicle. He observed the applicant riding the motorbike without a helmet. Mr Beard contacted police, and he also recorded a short video of the applicant on the motorbike. At about midday on 30 October, the stolen motorbike was located about 100 metres from the applicant’s residential address.
The applicant was charged with the above offences on 31 October 2024. Following his arrest, he was released on bail to appear at the Korumburra Children’s Court on 9 December 2024. Subsequently, his bail was revoked by the Wonthaggi Magistrates’ Court on 10 December 2024. The charges have been listed for mention before the Korumburra Magistrates’ Court on 6 January 2025.
(3) The Burrows charges
The informant on the third set of charges is Detective Senior Constable Liza Burrows, of the Bass Coast CIU. The charges consist of two charges of theft of a motor vehicle (charges 1 and 3), one charge of retaining stolen goods (charge 2), and one charge of possession of a drug of dependence (charge 4).
The offence that is the subject of charge 3 (theft of a motor vehicle) was committed on 23 October 2024 at about 3:00 am. On that date, the offenders entered premises in Higg Street, Leongatha, through an open garage door while the occupants inside were asleep. A 2019 white Hyundai vehicle was stolen from the garage area. Later, at 7:20 pm on the same day, a witness observed the applicant in the front passenger seat of the vehicle while it was driving in Greenwood Parade, Leongatha. The driver of the vehicle was the co-accused, KJ. The vehicle was subsequently recovered about 50 metres from the home address of the applicant in Hassett Street, Leongatha.
The offences, that are the subject of charges 1, 2 and 4, are alleged to have been committed on 29 October 2024. On that date, at about 1:48 pm, police spoke to the applicant in Dannock Street, Leongatha, in the vicinity of a recovered stolen Volkswagen motor vehicle. The vehicle was displaying false registration plates. Police followed the applicant as he walked away from the vehicle. On arrest, he was found to have in his pocket the key to the stolen vehicle, a red balaclava, a pair of gloves, and a small snap-lock bag containing a crystallised substance. The applicant was arrested and made partial admissions. He was charged and, at that time, released on bail. Subsequently, his bail was revoked on 10 December 2024.
Previous bail applications
As I have noted, the applicant was remanded in custody on 13 November 2024, after his arrest on the charges laid by Detective Sergeant Cole.
On 22 November 2024, the applicant unsuccessfully applied for bail at Latrobe Valley Children’s Court. The application was refused on the basis that there was an unacceptable risk that the applicant, if released on bail, would endanger the safety of others, by committing further offences. The applicant’s bail on the matters in respect of which Detective Senior Constable Yeomans and Detective Senior Constable Burrows are the informants was revoked.
A further bail application was made before the Wonthaggi Children’s Court on 10 December 2024. That application was also refused on the same ground, namely, that if the applicant were released on bail, there was an unacceptable risk that he would endanger the safety of others, by committing further offences.
Other matters in which applicant is on bail
The applicant is also the subject of one set of charges, which are outstanding, and on which he is (technically) on bail.
On 19 September 2024, the applicant was charged, by Detective Senior Constable Jamie Kennedy of Casey CIU, with one charge of stealing a Mercedes Benz motor vehicle (valued at $100,000) and one charge of unlicensed driving. Those offences are alleged to have been committed by the applicant, with co-accused SC, KJ, and MN[4].
[4]A pseudonym.
Between 9:30 pm on 16 September 2024 and 4:15 am on 17 September 2024, unknown offenders attended a home address in Yarraville. They gained entry to the house via an unlocked laundry door, stole car keys, and used them to steal a 2019 Alfa Romeo vehicle belonging to the occupant.
Between 9:00 pm on 18 September 2024 and 4:00 am on 19 September 2024, unknown offenders gained entry to another house in Newport, through an unlocked rear door. They stole a wallet and car keys for a Mercedes Benz CLA sedan and, using the keys, stole the vehicle from the front of the premises.
On 19 September 2024, at 8:50 am, police responded to a call that reported that a black Alfa Romeo and a stolen silver Mercedes Benz, were each driving erratically in Berwick, and swerving at each other.
Following a police pursuit, police were ultimately able to intercept the stolen Alfa Romeo and the stolen Mercedes Benz vehicle. The applicant was seated in the front driver’s seat of the stolen Mercedes vehicle. The applicant was arrested and, after being charged, was released on bail. The applicant’s co-offenders, SC, KJ and MN, were each in the stolen Mercedes vehicle. They were also arrested.
Outstanding matters in which applicant on summons
The applicant is also subject to one summary charge of theft of a motor vehicle, for which the informant is Senior Constable Stewart Sawers of Wonthaggi Police.
On 22 July 2024, an aggravated burglary occurred at premises in Leongatha, in the course of which a Mazda sedan motor vehicle was stolen. At 3:15 am, the applicant was arrested by police when observed in the vicinity of the vehicle in Leongatha. The summons is next listed for mention on 6 January 2025 at the Korumburra Magistrates’ Court.
Applicant’s criminal record
On 20 August 2024, the applicant was before the Wonthaggi Children’s Court on charges of possessing a controlled weapon without an excuse, possessing a prohibited weapon without exemption or approval, and going equipped to steal. On each charge, it was ordered that all of the property seized be forfeited and destroyed.
On 10 September 2024, the applicant was before the Wonthaggi Children’s Court on 46 summary charges, that included (among others) multiple charges of theft of a motor vehicle, aggravated burglary (4 charges), burglary, theft, criminal damage, handling or receiving stolen property, unlicensed driving, failing to stop a motor vehicle on police direction, dangerous driving while pursued by police, driving in a manner dangerous,, and reckless conduct endangering serious injury. The offences were committed between 2 May and 10 August 2024. He was arrested and remanded in custody on 10 August. On those charges, the applicant was placed on a 12 month probation order without conviction. Proceedings for breach of that order are currently listed before the Korumburra Children’s Court on 6 January 2025. The breach concerns the applicant’s failure to attend 10 out of 15 scheduled Youth Justice appointments between 17 September 2024 and 12 November 2024.
The applicant’s personal circumstances
The applicant was born on 15 April 2010. He has one older paternal half-sister, and older brother, and two younger maternal half-siblings. He has had a positive relationship with his biological brother, but, at present, that relationship is strained. He does not have contact with his half-siblings.
Until his arrest, the applicant was residing with his father and his paternal grandmother in Leongatha. He has reported having a close relationship with his father, and they have had regular telephone contact while the applicant has been on remand. If the applicant were granted bail, it is intended that he would continue to reside with his father.
Historically, the applicant has had a difficult relationship with his father. There is currently in place a conditional family violence intervention order, by which the applicant is the Affected Family Member, and his father is the respondent. There is also a reported history of family violence between the applicant’s mother and his father.
The applicant has, ordinarily, resided with his father. However, on 27 October 2023, he was removed from his father’s care and placed on an interim accommodation order with his mother. He remained in his mother’s care until 10 July 2024, when he was placed back into his father’s care on an interim accommodation order. Departmental records indicate that the applicant has been subject to 28 reports to Child Protection, with the first report occurring when the applicant was three years of age. The reports specifically concerned family violence, frequent disruption to his caregiving environment, his exposure to substance misuse, and criminal behaviour in his family.
The applicant has been diagnosed to have Attention Deficit Hyperactivity Disorder, generalised anxiety and conduct disorder. He is not currently on any prescribed medication for those conditions. He has a history of self-harm and suicide risk, and, in 2018, at the age of eight years, he attempted to commit suicide.
The applicant has an inconsistent educational history, having attended five different primary schools, due to his behaviour and instability. He disengaged from Mirboo North Primary School in June 2021, before commencing high school at Leongatha Secondary School in 2022. He was expelled from that school in May 2023, due to violent behaviour towards staff. He was then enrolled at Bass Coast at its Flexible Learning Options (‘FLOW’) Wonthaggi Campus, but he did not engage in that program.
Services while in custody
The applicant was originally remanded in Parkville Youth Justice precinct on 10 August 2024 for offending while he was subject to Youth Justice supervised bail. As noted, he was subsequently sentenced, on 10 September 2024, to a probation order.
After the applicant’s arrest on 13 November on the present matters, on 19 November he was referred to Caraniche Youth Forensic Services to complete a Clinical Tier Two Assessment. He was then referred to, and engaged with, Youth Justice Community Support Service, and was allocated to Mr Christo Perkins. The purpose of that support was to explore positive leisure and recreation activities, and the development of a pro-social routine to reduce the applicant’s excess idle time and to promote development of a positive peer network.
As I have noted, the applicant has been subject to 28 reports to Child Protection, commencing when he was three years of age. On 29 October 2024, his case management was transitioned to the Case Contracting Team, and subsequently, on 8 November 2024, his case was allocated to Ms Chloe Lewis of the Berry Street Intensive Case Management Service (‘ICMS’). Ms Lewis’ role has been to provide intensive support to the applicant’s father in the development of skills to manage the applicant’s absconding behaviour, and also to work intensively with the applicant himself to develop his capacity to engage pro-socially in the community, by engaging in positive leisure and recreational, and education activities.
Youth Justice reports
Four Youth Justice reports were available for the purposes of this application.
The first report, dated 9 September 2024, concerned an assessment by Mr Leigh Greening, the applicant’s Youth Justice case manager, as to the applicant’s suitability for a probation order. In summary, the report noted that the applicant presented with numerous vulnerabilities, which placed him at heightened risk for engagement in offending behaviours. The report recommended that a probation order be made, subject to a condition, that the applicant engage in Youth Offending Programs as directed by Youth Justice.
The second report by Youth Justice is dated 22 November 2024. In that report, Mr Greening concluded that Youth Justice had assessed that the level of risk, that the applicant’s behaviours currently present to community safety could not be mitigated through the Youth Justice Jail Service. The report further noted that Youth Justice holds concerns relating to the applicant’s capacity and motivation to engage with the implemented intervention to address his offending behaviours and identified needs.
In that respect, the report noted, amongst other matters:
·alleged episodes of further offending by the applicant whilst he was subject to the probation order, which offending appears to have escalated in seriousness with regard to the use of weapons on some occasions;
·the pattern and serious nature of the applicant’s offending and the high harm risk, which he presents to both his own safety and the community’s safety;
·the applicant’s limited engagement with Youth Justice, and his limited participation in interventions, which were designed to address his identified risks and needs;
·the applicant has demonstrated limited insight in relation to his offending behaviours and risk;
·the applicant has frequently absconded from the family home and has had no contact with Youth Justice, his father, and the care team during those periods;
·the applicant demonstrates a limited capacity to address his areas of need, which include a failure to attend and engage with supports that have been offered to him;
·the applicant’s history of negative peer association, which increases his risk of offending.
As noted, the applicant failed to comply with the reporting conditions of the probation order made on 10 September 2024, and he also continued to commit offences while on probation. As a consequence, Mr Greening prepared a third report, dated 5 December 2024, concerning the applicant’s non-compliance with the probation order. The report noted that the applicant’s management had been allocated to Ms Chloe Lewis, of the Berry Street Intensive Case Management Service. The report noted that Ms Lewis’ role was to work intensively with the applicant, to develop his capacity to engage pro-socially in the community and to engage in positive leisure and recreational activities, as well as education and engagement with his care team.
The report noted that while the applicant has been on remand, he has been engaging in sessions with Parkville College in relation to subjects that include literacy, art, media and sport. Ms Emily Tolson, of the Parkville College Transitions Team, reported that the applicant’s engagement in the program had been positive, with the applicant applying himself in organised activities.
The report also noted that the applicant had commenced working with ORGYN drug and alcohol supports with Mr Hugh Crossan on 3 December 2024. The applicant had historically denied using illicit substances, and had presented as unwilling to engage in drug and alcohol support. Mr Crossan apparently reported that the applicant had been open throughout discussions with him relating to his substance abuse, and that the applicant was open to engage in scheduled appointments, with a focus on harm minimisation.
In conclusion, the report noted that the applicant had demonstrated an ability to engage with Youth Justice, but that he had not done so for a sustained period of time. When he attended supervision appointments, he had engaged positively, but he had not engaged in interventions to address his criminogenic needs. The report concluded by recommending that the probation order be confirmed.
The fourth report by Youth Justice is dated 19 December 2024. It was compiled by Ms Lilli Bates-Fennessy, the Team Leader of the Gippsland Region.
In the report, Ms Bates-Fennessy noted that the applicant presents with a pattern of frequently absconding from the family home and disconnecting from contact with his father and his care team. During those periods, the applicant’s father had been unaware of the applicant’s whereabouts, and had been unable to contact him. The applicant himself identified that his main issue was that he was bored. While the applicant has been on remand, he has been engaging in some sessions with Parkville College, specifically related to subjects including art, media and sport. He has attended some core subjects, but his attendance has not been positive. He has said that he is willing to re-engage with his education, and he considers that the barriers to his engagement to date had been related to him being away from the family home and being distracted by peers, and by his situation in custody.
Ms Bates-Fennessy outlined the factors that would support Youth Justice supervised bail compliance by the applicant. In particular, she noted that the applicant presents as vulnerable in custody, given his age, lack of previous criminal convictions, and his diagnoses of Attention Deficit Hyperactivity Disorder, generalised anxiety and conduct disorder. The applicant reported to have been targeted by other young people while he was in custody and he feels unsafe. Ms Bates-Fennessy also noted that the applicant is supported by a strong Care Team, with appropriate tailored supports in place to address his areas of need. During the current remand period, he has demonstrated elements of insight in relation to the matters that trigger his offending, and the impact that his actions have on his father. The applicant has said that he tries to say ‘no’ to his peers, but he feels pressured by them, and they do not listen to him.
In respect of factors that increase the risk of bail non-compliance, Ms Bates-Fennessy noted the frequency of the offending, and the fact that it was of serious nature, which carries a risk of harm to victims in the community. In addition, the applicant has demonstrated a lack of capacity to comply with court-imposed orders and bail, by his allegedly offending while subject to the probation order and also bail provided by police. There have been significant levels of supported offered to the applicant during the periods of his most recent offending episode, but, as the applicant absconded from home and was missing, he did not access those supports. Further, the applicant has demonstrated unacceptable compliance while subject to previous opportunities of supervised bail, having attended only two out of six scheduled appointments. In addition, he only attended five out of 15 appointments pursuant to the probation order. Ms Bates-Fennessy also noted that the applicant is not willing to be open in relation to his current substance abuse, and that he presents with a large network of antisocial peers, which increase his risk of absconding and engaging in high risk behaviours.
In conclusion, Ms Bates-Fennessy stated that Youth Justice assesses that the level of risk that the applicant’s behaviours present to the community safety cannot be adequately mitigated through the Youth Justice Bail Service. Youth Justice have ongoing concerns relating to the applicant’s capacity and motivation to engage with the necessary intervention to address his offending behaviours. The applicant has engaged in episodes of further offending conduct while subject to the probation order, and that the offending has escalated in seriousness, particularly as it has involved the use of weapons. Ms Bates-Fennessy expressed the view that the pattern and serious nature of the applicant’s offending constitute a high risk of harm to the applicant’s safety and the community’s safety. She also noted that the applicant has only engaged with Youth Justice to a limited degree while he is in the community, and that limited participation by him did not reduce the risk of him reoffending. In addition, the applicant has limited insight in relation to his offending behaviours. Ms Bates-Fennessy further noted that the applicant has historically failed to attend and engage with supports that have been offered to him while he was in the community. His history of negative peer association increases his risk of reoffending.
Ms Bates-Fennessy further recommended that, if the applicant were released on bail, he should be subject to intensive bail. However, the applicant’s capacity to comply with such a program, and the time of the year, are barriers to implementing an intensive timetable that would be sufficient to address the relevant risks if the applicant were released on bail.
Ms Bates-Fennessy gave evidence on the hearing of the bail application. She reiterated that the main concerns of Youth Justice are that the applicant has persisted with continued offending while he has been released on bail and while he was subject to the probation order, and that the offending escalated in seriousness, particularly taking into account the offences that were committed on 12 November last. Ms Bates-Fennessy reiterated that the applicant has not complied well with requirements of Youth Justice. He has repeatedly absconded from his family home, which has occurred at times in which he has been engaged in offending.
Ms Bates-Fennessy did note that during the period in which the applicant has been on remand since 13 November, his attitude has improved. In the past, he had been quite indifferent to changing his ways. However, he now wishes to try to do otherwise, and at a recent appointment he proffered some views as to what he should do in that respect.
Ms Bates-Fennessy also confirmed that it is a matter of particular concern that the offending has occurred on occasions when the applicant has absconded from his family home. The applicant’s father works long hours and therefore he is not in a position to adequately supervise the applicant. In that regard, ICMS have worked with the applicant’s father to develop a plan as to what should occur if the applicant were to abscond in the future.
In cross-examination Ms Bates-Fennessy confirmed that the applicant has suggested matters which he might try in order to improve himself. As a result, an action plan has been developed to cater for situations in which the applicant becomes bored at home and is tempted to abscond. Ms Fennessy accepted that the applicant’s suggestions in that regard are a small, but promising, start by him in developing some insight into his offending. She also noted that the applicant had reported that he felt some shame and remorse in respect of how his offending behaviours had affected his father. In addition, the applicant has now agreed to work with alcohol and other drug services to address his issues with the use of illicit drugs.
Finally, Ms Bates-Fennessy accepted that the applicant does constitute a high risk of self-harm. In custody he is vulnerable to the influences of other young people. He is also vulnerable to physical assaults by others and has been assaulted twice by other young detainees.
Ms Chloe Lewis, the intensive case manager at Berry Street ICMS, also gave evidence on the hearing of the application. Ms Lewis has been contracted by the department to support the applicant. Her role has been to support the applicant to engage in pro-social activities. In that capacity, she has met and conferred with the applicant once at the police station, and twice in the Parkville Youth Justice Centre. In those meetings, the applicant has indicated that he wishes to re-engage with his education and to return to the flexible learning options (‘FLOW’) program at the Wonthaggi campus of Bass Coast. He has also indicated that he wishes to receive medication for his ADHD, and that he is interested in becoming involved in the sport of boxing.
Ms Lewis stated that if the applicant were released on bail, she would accompany him to any appointments, and if she were not available to do so, someone else on her team would do so. She also stated that if he failed to attend an appointment, or otherwise was missing from home, she would contact his father and grandmother, and she herself would drive to any known addresses in order to try to locate him. Ms Lewis considers that the applicant does engage with her when they meet, and they discuss his goals, and matters relating to his health and education.
In cross-examination, Ms Lewis stated that she would only be able to continue to provide the service to the applicant if a child protection order remains in place and if ICMS continues to consider it necessary for her to do so. She said that during the forthcoming Christmas period she would contact the applicant’s father daily. She agreed that the role, that she performed, is very much dependent on the applicant cooperating with her.
The applicant’s father, MW,[5] gave evidence. He stated that if the applicant were released on bail, the applicant would reside with him at his home in Leongatha. MW works long hours as a concreter. However, he has organised to take leave for the next month, in order that he be available to supervise the applicant if he is released on bail. MW said that if the applicant were released on bail, he would supervise the applicant ‘seven days a week 24 hours a day’ until he returned to work. He said he would be prepared to assist the applicant to attend appointments if necessary. MW said that if the applicant absconded from the home, he would notify the services. He explained that an SMS group was being established with the services to make sure that the applicant does stay out of trouble. MW said that previously he had not contacted police when the applicant had absconded on bail (except on one occasion), because he was concerned that if he did so, a pursuit might take place in which the applicant could place the safety of himself and other persons at risk. He said that he would be prepared, however, to undertake to the Court that if the applicant did abscond on bail or breach the terms of his bail, he would immediately notify the police.
[5]A pseudonym.
In cross-examination, MW confirmed that the applicant had been residing with him during the last six to eight months, in which his spate of offending had occurred. MW accepted that the applicant had absconded during that period on multiple occasions, and in doing so he had remained away from home for a number of days. On those occasions, MW would send a message to the applicant to try to persuade him to return home.
MW stated that on previous occasions, when the applicant was on bail, he was not pleased by the manner in which police would attend at his house at the early hours of the morning to check whether the applicant was observing the curfew conditions of his bail.
Finally MW stated that if the applicant were released on bail, he intended to keep the applicant involved in a number of constructive activities such as camping, fishing, go-karting and riding motorbikes.
In the course of his evidence, MW stated that he would be prepared to give a formal undertaking to the court that if the applicant were released on bail, and if the applicant failed to abide by any of the terms of the bail, he would immediately contact the informant or (if the informant is not available) other police.
I explained to MW the technical nature and effect of him giving such an undertaking to the court. In particular, I explained that it would be a formal promise made by him to the court, and that if he did not comply with it, he would be in contempt of court. I also explained to MW that if he did fail to comply with the terms of such an undertaking, and was thereby in contempt of court, he may be sentenced to a term of imprisonment. I am satisfied that MW fully understood the explanation that I gave to him concerning such an undertaking. In his evidence, and again at the conclusion of the oral hearing, he expressly gave an undertaking that if the applicant were released on bail, and if he failed to comply with any of the conditions of the bail (including the curfew conditions, not associating with particular peers, and absconding from home) he would immediately contact the Informant.
The final witness was the Informant, Detective Sergeant Cole. Counsel for the applicant cross-examined Sergeant Cole concerning the evidentiary basis of the charge of home invasion. It is sufficient to observe that, for the purposes of this bail application, I am prepared to accept that the prosecution does have a respectable evidentiary basis for that charge, but I also accept that the case against the applicant on that charge is open to be contested.
Bail provisions
The charges against the applicant include three Schedule 2 offences, namely, home invasion (Cole charge 1) and aggravated burglary (Yeomans charges 2 and 3). It is alleged that the applicant committed the Schedule 2 offence of home invasion while he was subject to bail for Schedule 2 offences, namely, the two aggravated burglary offences charged by Detective Senior Constable Yeomans, on which he was bailed on 31 October 2024. In addition, all three of the Schedule 2 offences are alleged to have been committed by the applicant while he was otherwise serving a sentence for a Schedule 2 offence, namely, the probation order imposed on 10 September 2024 for offences that included four charges of aggravated burglary.
Accordingly, ss 4AA(2)(c)(i) and (v) and 4A(1A) of the Bail Act 1977 provide that the application for bail must be refused, unless the applicant establishes the existence of exceptional circumstances that would justify the grant of bail. In substance, in order to meet that requirement, the applicant must demonstrate the existence of circumstances, which are such as to take the case out of the ordinary circumstances that would otherwise entitle an applicant to bail.[6]
[6]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Tong [2020] VSC 141, [18] (Tinney J); Re Pope [2022] VSC 735, [6] (Priest JA).
Section 4D and s 4E(a)and (b) of the Act provide that, in a case such as this, in which the applicant establishes the requisite exceptional circumstances, the application for bail must be refused, if the court is satisfied that there is an unacceptable risk that the applicant, if released, would (inter alia): commit a Schedule 1 offence or a Schedule 2 offence (s 4E(iaa); or otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect, or by any other means (s 4E(a)(i)).
Section 4D(2) provides that the respondent bears the onus of demonstrating the existence of such an unacceptable risk.
Section 4A(3) provides that, in considering whether exceptional circumstances exist, and s 4E(3)(a) provides that, in considering whether a risk is unacceptable, the court must take into account the ‘surrounding circumstances’, which are specified in s 3AAA of the Act.
Relevantly, for the purposes of the present case, those circumstances include the following: the nature and seriousness of the alleged offending; the strength of the prosecution case; the criminal history of the applicant; the extent to which the applicant has complied with the conditions of any earlier grant of bail; whether, at the time of the alleged offending, the applicant was on bail for another offence or subject to a summons to answer a charge for another offence; the applicant’s personal circumstances; any special vulnerability of the applicant, including being a child or having a cognitive impairment, an intellectual disability or a mental illness; the availability of treatment or bail support services; the view of an alleged victim of the offending to the grant of bail; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged.
The applicant, being 14 years of age, is a child by law. Section 3B of the Bail Act provides that in making a determination whether to grant bail, the Court must take into account (inter alia): the applicant’s age, maturity and stage of development at the time of the offence; the need to consider all other options before remanding the applicant in custody; the need to strengthen and preserve the relationship between the applicant and his family; the need to minimise the stigma to the applicant resulting from being remanded in custody; the likely sentence should the applicant be found guilty of the offences charged; and the need to ensure that the conditions of bail are no more onerous than are necessary.
Opposition to application
The respondent accepts that it is open to the Court to find that exceptional circumstances exist in the present case that justify the grant of bail. The respondent opposes the grant of bail on the basis that, if the applicant were released on bail, there would be an unacceptable risk: that he would commit a Schedule 1 or Schedule 2 offence; and that he would endanger the safety or welfare of another person.
In contending that there is an unacceptable risk that the applicant would commit a Schedule 1 or Schedule 2 offence, the respondent relies on two points. First, the applicant is alleged to have committed Schedule 2 offences only two months after he was sentenced for similar offending by the Wonthaggi Children’s Court. Secondly, the applicant has demonstrated a complete disregard for court orders, as he has continued to commit Schedule 2 offences while on bail and while serving the probation order.
In contending that there would be an unacceptable risk that the applicant would endanger the safety or welfare of another person, the respondent relies on three points, namely:
(1)The applicant is alleged to have committed an home invasion in circumstances in which that offence was committed in company, with the intention of stealing motor vehicles and other property, and often while the occupants of the home were present. It is contended that the applicant’s offending has escalated over time, in circumstances in which the applicant, and his co-offenders, are alleged (on 12 November) to have engaged in confronting a victim, and threatening her with a weapon.
(2)The applicant has been charged with serious offending, including home invasion, aggravated burglary and theft of motor vehicle. It is contended that those offences are of a serious nature, and place the safety and welfare of members of the community at risk. The nature of the offending, including unlicensed driving, demonstrates that the applicant has a disregard for the safety of other persons.
Submissions
As I have noted, the respondent has accepted that it is open to the Court to include that the applicant has established the requisite exceptional circumstances in the present case. For reasons that I shall shortly outline, that concession was appropriate. The critical issue is whether, in those circumstances, the respondent has demonstrated that if the applicant were released on bail, there would be an unacceptable risk in either of the two respects which I have outlined.
In helpful submissions, counsel for the respondent made the following observations and submissions concerning the ‘surrounding circumstances’ prescribed by s 3AAA which are required to be taken into account in considering that issue.
In respect of s 3AAA(1)(aa) (the likelihood of imprisonment and if so, whether time spent in custody on remand would exceed that term of imprisonment), the respondent accepted that it would be open to conclude that if the applicant were not granted bail, there is a prospect he might spend longer on remand than he may ultimately receive as a sentence for the offending with which he is charged. That submission was made taking into account the applicant’s young age and his relatively limited previous criminal history.
In respect of s 3AAA(1)(a) counsel noted the serious circumstances in which the home invasion occurred on 12 November 2024, and that the applicant is alleged to have committed that offence, and two other aggravated burglaries, while subject to the probation order dated 10 September 2024 for similar offending. Counsel also noted that between May and November 2024, the applicant had engaged in consistent offending. A significant amount of that offending occurred after he had been placed on bail on 19 September 2024 (in respect of the Kennedy charges). Counsel also noted that the applicant’s offending escalated in seriousness over that time, and that the home invasion involved a confrontation with the victims in which they were threatened with a weapon.
In respect of s 3AAA(1)(b) (the strength of the prosecution case) counsel submitted that the prosecution case on the home invasion is strong. In particular, the prosecution relies on fingerprint identification, witness statements, CCTV footage and items subsequently seized under warrant from the applicant’s home.
In respect of s 3AAA(1)(c) (the applicant’s criminal history) counsel conceded that the applicant has a relatively limited criminal history.
In respect of s 3AAA(1)(d) (compliance with earlier grants of bail) counsel noted that the applicant had been charged and bailed by police on the Kennedy matters on 19 September 2024. The conditions on which the applicant was bailed included that he not associate with his co-offenders KJ and SC, and that he abide by a curfew. Counsel noted that the offending in the Cole matter, that is alleged to have occurred on 12 November 2024, was committed in the company of KJ and SC, and that the offences occurred during the applicant’s curfew hours. Counsel also noted that the applicant is alleged to have committed offences while he was on bail on the Burrows matters, and the Yeomans matters.
In respect of s 3AAA(1)(g) (the applicant’s personal circumstances) the respondent noted that the applicant does have accommodation available to him with his father, that he is 14 years of age, and he has been diagnosed with ADHD and anxiety. Counsel also has noted that the applicant has not been willing to be open with Youth Justice about his substance use, and in that respect it is relevant that he was charged with possession of methylamphetamine on 29 October 2024 (Burrows charge 4).
In respect of s 3AAA(1)(h) (any special vulnerability of the applicant) the respondent accepted that the fact, that the applicant is a child, is a critical consideration which must be taken into account. In particular, as noted, the applicant has been diagnosed with ADHD and anxiety, but he is not currently under medication or receiving treatment for those conditions. It was noted that he has a history of suicidal ideation and self-harm, having attempted suicide when he was eight years of age.
In respect of s 3AAA(1)(i) (availability of treatment or bail support services) counsel noted that Youth Justice do not support the applicant being granted bail, due to his previous non-compliance with Youth Justice while on probation and while on Youth Justice-supervised bail, and his unwillingness to be open in relation to his drug use. Counsel also noted that Youth Justice have concerns about the applicant’s escalating offending, his lack of motivation and capacity to properly engage with support services, his frequent absconding from the family home, and his history of negative peer associations.
In respect of Section 3 AAA(1)(j) (victim’s views) counsel noted that the victim of the home invasion on 12 November 2024, Ms Mohiuddin-Shah has expressed the view that she still suffers anxiety as a result of the incident, so much so that she has been out of work since it, and she has been unable to return to Leongatha due to the offending.
Finally, in respect of s 3B, counsel for the respondent noted that the court must take into account the applicant’s young age (14 years). The applicant does have accommodation and support available to him with his father, but it is noted that the applicant has committed a number of offences, and has absconded from home, at times on which he has been bailed to his father’s address. Counsel also noted that the applicant is currently subject to a family preservation order dated 6 August 2024 which expires on 6 February 2025. The applicant has a long history with Child Protection and he has been subject to 28 reports since he was just three years of age. It is also noted that while the applicant is currently enrolled at Bass Coast College in their flexible learning options Wonthaggi campus, he only attended one scheduled session since 15 October 2024.
Based on those matters, counsel for the respondent submitted that if the applicant were released on bail, there would be an unacceptable risk that he would commit a Schedule 1 or Schedule 2 offence, and also that he would endanger the safety or welfare of other persons. It was submitted that no conditions of bail could adequately mitigate those risks to an acceptable level.
In response, counsel for the applicant submitted that, unlike the previous occasion on which the applicant has been released on bail, there are now a number of structures in place which would be directed to obviating the risk that the applicant would commit serious offences and endanger the community if released on bail. In particular, the applicant would have the assistance and supervision of Ms Lewis of the Berry Street Intensive Case Management Service, and he would be supported by his father who has already commenced four weeks’ leave in order to ensure that he is able to supervise and monitor the applicant at home.
Analysis and conclusion
As I have noted, the respondent has correctly accepted that it is open to conclude that the applicant has established the requisite exceptional circumstances pursuant to s 4A of the Bail Act.
Those circumstances consist of a combination of the applicant’s young age, his psychological issues, his significant vulnerability in custody, and the potential delay in the ultimate disposition of all of the charges on which he is currently on remand. In respect of that last matter, it is noted that at this point the applicant has already spent 40 days in custody. It might be expected that there will be some delay in the disposition of some of those charges, and, in particular, the charge of home invasion. There is therefore a reasonable possibility that if the applicant were not released on bail, the time that he would spend on remand would exceed any custodial sentence which might ultimately be imposed on him.
The critical, and difficult, question is whether, taking into account the prescribed surrounding circumstances, there would be an unacceptable risk that, if the applicant were released on bail, he might commit a Scheule 1 offence or a Schedule 2 offence (and in particular aggravated burglary or home invasion), and in addition that he would endanger the safety or welfare of other persons, particularly by committing an offence that has effect.
It must readily be accepted that if the applicant were released on bail, there would be a material risk of either or both of those two eventualities.
The applicant has been charged (and in respect of the offences that were the subject of the probation order, found guilty) of a number of criminal offences committed by him during the six month period between May and November of this year. In particular, between May and August he committed four aggravated burglaries (which were the subject of the probation order), and in July and August 2024 he is alleged to have committed two further aggravated burglaries (in respect of which Detective Senior Constable Yeomans is the informant). In November, he is alleged to have been involved in the serious home invasion in which an innocent female occupant of the house was threatened with an iron bar. The applicant is also alleged to have been involved in a number of thefts of motor vehicles, which necessarily involved either the applicant or his co-offender, while unlicensed, driving those vehicles. The charges, that are the subject of a probation order include one charge of dangerous driving while pursued by police.
In addition, it is a matter of concern that the applicant is alleged to have committed a number of offences after being placed on probation on 10 September 2024, and, further, after being arrested and released on bail on 19 September 2024 on the charges in respect of which Detective Senior Constable Kennedy is the Informant. Those further offences include the offending in respect of which Detective Senior Constable Burrows is the informant, charge 1 of the charges in respect of which Detective Senior Constable Yeomans is the informant, and eight of the charges in respect of which Detective Sergeant Cole is the informant. In that way, the applicant has displayed a troubling lack of regard for the conditions of the probation order made on 10 September 2024, and of the conditions on which he was successively bailed on 19 September 2024, 29 October 2024 and 31 October 2024.
For those reasons, it is quite clear that if the applicant were released on bail, there would be a material risk that he might commit a Schedule 2 offence (and in particular aggravated burglary or home invasion) and that by committing further offences he might thereby endanger the safety and welfare of other members of the community.
The critical, and more difficult, question is whether, taking into account the surrounding circumstances prescribed by s 3AAA, and s 3B of the Bail Act, those risks are unacceptable. In determining that question, a number of factors must be taken into account.
First and foremost, the applicant is not only at law a ‘child’; he is 14 years of age, and he presents and acts as being quite immature for his age. He has had longstanding psychological issues including ADHD, anxiety problems and self-harm. His domestic circumstances have been most unsettled. He has been exposed to domestic violence in the home. His mother has had little to do with his upbringing and care. His father works long hours as a concreter, and the applicant has often been left for long periods of time to his own devices. In every sense, he is a young, immature and troubled 14 year old.
It is also quite apparent that the applicant is vulnerable, particularly in custody. In his time in youth detention, he has twice been assaulted by other inmates. He is clearly impressionable, and is particularly susceptible to adverse influences from his peers.
The second relevant factor is that, as fairly conceded by counsel for the respondent, if the applicant is not granted bail, there is at least a reasonable possibility (if not probability) that the time, that he would spend on remand, would materially exceed the term of any youth detention order, which might be made if he were convicted of the charges against him, including the charge of home invasion.
It is also relevant to take into account that the applicant does have a relatively limited criminal history, notwithstanding the substantial number of charges in respect of which he was placed on probation on 10 September last. His involvement in criminal offending has been relatively recent, although that observation must be qualified by the fact that he is particularly young.
A fourth, and important, factor is that if the applicant is released on bail, he would have some constructive supports available to him. During his time on remand, he has had the opportunity to have some interaction with Ms Lewis of ICMS, and to establish a degree of rapport with her. It is significant that the applicant has expressed to Ms Lewis that he has felt shame and remorse at the affect that his offending has had on his father. In addition, he has now gained some (albeit limited) insight into his offending, and he has consented to work with an alcohol and other drug dependency clinician to assist him. In discussions with Ms Bates-Fennessy, he has himself suggested some strategies that he might use when he has a temptation to abscond and associate with his peers. Ms Bates-Fennessy accepts that that acknowledgment by the applicant constitutes a small, but important, step by the applicant towards gaining an appropriate insight into the circumstances in which he becomes involved in offending.
If the applicant were released on bail, it would be a condition of his bail that he reside at the home of his father, MW, and that he be subject to a curfew. Those two conditions have been part of each of the terms of bail on which the applicant has been previously released. The factors which would be different in the present case include, first, that MW will be taking leave from his work for a period of one month in order that he can closely and constructively supervise the conduct of the applicant if he were released on bail. Secondly, as I have noted, MW has given the Court a formal undertaking (which will be recorded in the orders on which the applicant is released on bail) that if the applicant does not abide by any of the conditions of his bail, he will immediately report that matter to the police.
MW gave that undertaking after I had explained to him (twice) that if he did not adhere to the terms of the undertaking, he would be in contempt of court, and in those circumstances it would be likely that he would be sentenced to a term of imprisonment. I am satisfied that MW has made the undertaking to the Court with a full understanding of the binding nature of it, and the potential consequences if he were not to adhere to it. In that way, the further supervision by MW of the applicant, and MW’ undertaking to inform police if the applicant does not adhere to the terms of his bail, would constitute a significant level of supervision of the applicant which was not available to him on the previous occasions on which he had been released on bail.
In that respect, in releasing the applicant on bail, there would be specific conditions that are designed to address the two risks which are pertinent in the present case. In addition, there would be a condition that the applicant be subject to bail monitoring.
Taking those matters into account and in particular the matters prescribed by s 3B and s 3AAA of the Bail Act, I am not satisfied that if the applicant were released on bail, risks that he would commit a Schedule 1 or Schedule 2 offence, or that he would endanger the safety and welfare of members of the community, would be unacceptable.
Accordingly, I propose to make an order that the applicant be admitted to bail subject to the following conditions:
(1)the applicant comply with all lawful directions and attend all appointments as directed by any approved officer or delegate of the Youth Justice Supervised Bail Service;
(2)the applicant engage with and comply with all directives and attend all appointments as directed by any approved officer of Berry Street Intensive Case Management Service;
(3)the applicant reside at his father’s address and not change that address without the leave of the court or as otherwise permitted in writing by an approved delegate of Youth Justice;
(4)the applicant remain at those premises between the hours of 9 pm and 6 am each day for the duration of bail;
(5)the applicant 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;
(6)the applicant abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(7)the applicant not have any contact with, or associate with, the co-offenders;
(8)the applicant not contact, directly or indirectly, any witness for the prosecution except the informants;
(9)the applicant appear for bail monitoring before the court at 10 am on 7 January 2024 and must appear on any further dates of bail appointed by this Court during the course of this order;
(10)the applicant is to appear at the Korumburra Children’s Court on 6 January 2025.
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