Re DZ (a pseudonym)
[2024] VSC 687
•18 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0235
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by DZ (a pseudonym)[1]
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGE: | T Forrest JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17–18 October 2024 |
DATE OF JUDGMENT: | 18 October 2024 |
CASE MAY BE CITED AS: | Re DZ (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 687 |
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CRIMINAL LAW — Bail application — Applicant facing multiple charges including aggravated intentional exposure of an emergency worker to a safety risk, aggravated reckless exposure of an emergency worker to a safety risk, theft of a motor vehicle, unlicensed driving, attempted robbery — Appellant 17 years old — Mild intellectual disability — Aboriginal heritage — Factors relevant to assessing whether risk unacceptable — Compelling reasons — Unreasonable delay before trial — Unacceptable adverse impacts of continued pre‑trial incarceration — Appeal allowed — Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Foot | Kurnai Legal Practice |
| For the Respondent | Mr N Moran | Mr N Moran, Solicitor Advocate for Victoria Police |
HIS HONOUR:
Introduction
The applicant is a 17‑year‑old male Aboriginal child. In the last 18 months, he has been in a good deal of criminal trouble, regrettably, in my view, of escalating seriousness. He has been the subject of numerous grants of bail, all of which he has allegedly breached by further offending.
He has no prior convictions at this stage, although, as I shall explain shortly, there are a number of matters pending. I shall set out a brief chronology of that prior history before setting out the factual circumstances of the charges upon which he seeks bail from this Court.
From about March 2023, it is alleged that the applicant and his friends committed numerous offences in regional Victoria.
In short, the main type of offending involved breaking into houses, often occupied, stealing car keys and using them to steal cars. Often those cars were driven erratically and quickly. Between 5 June 2023 and 6 July 2024, the applicant was charged with at least the following offences: 12 thefts of motor vehicle, three charges of unlicensed driving, two charges of trespass, one of burglary, one of robbery, one of unlawful assault, one of dishonestly undertaking and the retention of stolen goods, one of criminal damage and one of behaving in a riotous manner.
Outline of current offending
The applicant, as I have said, was on many grants of bail until these matters came to Court, before a regional Children’s Court on 7 August 2024. On that day, as I understand it, he pleaded guilty to a consolidation of many of the above charges, including 12 thefts of motor vehicle, two charges of trespass, and charges of burglary, robbery and theft.
The Magistrate deferred sentence and released the applicant on one grant of bail until 16 October 2024. Whilst on that grant of bail, on 18 September 2024 the applicant is alleged to have committed the offences upon which he seeks bail from this Court. He was refused bail from a regional Children’s Court on 2 October 2024. This application for bail is made pursuant to s 18 of the Bail Act 1977 (‘the Act’).[2] The offences upon which he seeks bail are:
[2]Bail Act 1977 s 18.
(a) aggravated intentional exposure of an emergency worker (police officer) to a safety risk;[3]
[3]Contrary to s 317AD(1) of the Crimes Act 1958.
(b) two counts of aggravated reckless exposure of an emergency worker (police officer) to a safety risk;[4]
[4]Contrary to s 317AF(1) of the Crimes Act 1958.
(c) theft of a motor vehicle valued at $15,000;[5]
(d) unlicensed driving;[6] and
(e) attempted robbery.[7]
[5]Contrary to s 74 of the Crimes Act 1958.
[6]Contrary to s 18(1)(a) of the Road Safety Act1986.
[7]Contrary to s 321M of the Crimes Act 1958.
These are, with the possible exception of unlicensed driving, serious offences.
Home invasion / aggravated burglary potential further charge
I will set out the brief surrounding facts regarding the above offending and a potential further charge which has not yet been laid against the applicant. On 18 September 2024 at 2.51 am, a home in regional Victoria was invaded by two young men. They assaulted and threatened the elderly female occupant. They stole her car keys and then her car. They decamped leaving the occupant of the house traumatised and injured.
I stress that at this stage the applicant is not charged with this offending. DNA testing has been undertaken but there will be no results for many months. I shall return to this aspect later in these reasons.[8] Sometime before 6 am, the stolen vehicle was driven to a service station in a nearby regional town. A young woman was arriving at work to perform her morning shift at the service station. She had a handbag over her shoulder. It is alleged the applicant, who was the driver of the car, yelled to his co‑offender (a passenger from the same car): ‘Get out and grab her bag’.
[8]See paragraph [37].
The co‑offender attempted to do this but the complainant resisted and the co‑offender was unsuccessful. He re‑entered the stolen vehicle and they drove off. This is said to constitute the attempted robbery charge. I should say that the words: ‘Get out and grab her bag’ were heard by the complainant and are in her statement.
At 6.08 am on the same morning, so that is around 10 minutes later, the two young men are alleged to have driven into another service station in another regional Victorian town. Two detectives in plain clothes, Detective McNamara and Detective Wakker, apparently recognised the stolen vehicle and Detective McNamara apparently recognised the applicant. When I say ‘plain clothes’, the detectives were wearing dark trousers and dark bomber‑type jackets with a relatively small Crime Investigation Unit (‘CIU’) badge on the jacket.
The detectives were driving an unmarked police vehicle.
The police vehicle drove in quickly and parked across the nose of the stolen car which was stationary at a petrol pump. The applicant was in the driver’s seat.
The applicant’s co‑accused had left the vehicle and was walking towards the service area. Detective McNamara opened the driver’s door of the stolen vehicle. The applicant drove forward at that stage and struck the police vehicle with his car.
Detective Wakker opened the passenger door of the stolen vehicle.
The applicant reversed the stolen vehicle, wedging Detective McNamara between the door and a metal sign. Detective McNamara fell to the ground and was injured. The applicant drove forward quickly and out of the service area and ultimately out of the service station precinct.
I viewed this incident on CCTV from two perspectives. It is disputed whether the detectives identified themselves as police. The audio component of the CCTV, at least as I have listened to it, does not really assist. Later that morning the stolen vehicle was recovered by police in a nearby regional town. The co‑offender was arrested nearby. He had no prior convictions and has been bailed.
The applicant was apprehended at his home on 24 September 2024, that is eight days’ later. He has been detained at a Youth Justice Precinct since then.
The applicant made a ‘no comment’ police interview.
I make these observations about the offending that is the subject of this application:
(a) Firstly, leaving aside the driving offence, the offending is serious.
(b) Secondly, I consider the strength of the robbery and assault charges as high. Identity will be proven and I think it is likely complicity will be established as well.
(c) Thirdly, the emergency worker offences both require as an element of proof that the applicant knows or is reckless to the fact that the endangered person is an emergency worker. As discussed with Ms Foot in argument, I regard the strengths of these cases as relatively high, notwithstanding the forceful argument that was put to the contrary.
The ‘Show compelling reason test’
I turn to the relevant legislation. Section 4 of the Bail Act 1977 (‘the Act’) provides that an accused person being held in custody in relation to an offence is entitled to be granted bail, unless the bail decision maker is required to refuse bail by the Act. Section 4AA(3) of the Act provides that step one in considering an application of this nature is the ‘show compelling reason test’ and it applies to a decision as to whether to grant bail where an applicant is charged with a Schedule 2 offence.[9]
[9]Bail Act 1977 s 4AA(3).
It is common ground that the applicant is charged with a Schedule 2 offence, namely the aggravated intentional exposure of a police officer to a safety risk,[10] and therefore the defendant must satisfy this test. The ‘show compelling reason test’ requires a decision‑maker to refuse bail unless satisfied that a compelling reason exists that justifies a grant of bail.[11] The burden of demonstrating such a compelling reason exists lies with the applicant.[12]
[10]Ibid s 317AD(1).
[11]Ibid s 4C(1A).
[12]Ibid s 4C(2).
In considering whether compelling reason exists, the bail decision‑maker must take into account the surrounding circumstances, including those set out in s 3AAA(1) of the Act.[13] Relevantly, they are:
[13]Ibid s 3AAA.
(a) whether, if the accused is found guilty, it is likely that he or she would be sentenced to a term of imprisonment, and if so, whether the likely time on remand would exceed that term of imprisonment;
(b) the nature and seriousness of the offending;
(c) the strength of the prosecution case;
(d) the accused’s criminal history;
(e) the extent to which the accused has complied with any earlier bail order;
(f) whether the accused was subject to a summons in relation to other offending;
(g) the accused’s personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused.[14]
[14]Ibid.
The test may be satisfied if a number of individual reasons, each insufficient to satisfy the test in itself, in combination do compel the conclusion that the applicant’s detention in custody is not justified.[15]
[15]Re Cyelan [2018] VSC 361 [46] (Beach JA)
A compelling reason then need not be irresistible or exceptional, but it must be forceful, and, therefore, convincing.[16]
[16]Ibid [47]–[48] (Beach JA).
As I have said, it is common ground between the parties that this is the test that I must apply, and for present purposes, the compelling reason test, in my view, has been satisfied by the applicant. I note that Mr Moran, who appeared for the respondent in this application, did not argue against that conclusion, and sensibly, in my view, focused his arguments on the question of unacceptable risk.
Relevant amendments to the Bail Act 1977
A couple of recent legislative matters have been introduced into the Act that I must refer to in brief terms. The Act has been amended in a material way that impacts this application. As I have said, the applicant is a child and he is Aboriginal.
Section 3A of the Act has been amended.[17] I am required to take into account the applicant’s Aboriginality, and any issues that arise from that. I have considered all the issues that are enumerated in that section, which are as follows:
[17]Bail Act 1977 s 3A.
3A Determination in relation to an Aboriginal person
(1)In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including the following—
(a)the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over‑represented in the criminal justice system, including in the remand population;
(b)the risk of harm and trauma that being in custody poses to Aboriginal people;
(c)the importance of maintaining and supporting the development of the person’s connection to culture, kinship, family, Elders, country and community;
(d)any issues that arise in relation to the person’s history, culture or circumstances, including the following—
(i)the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;
(ii)any experience of out of home care, including foster care and residential care;
(iii)any experience of social or economic disadvantage, including homelessness and unstable housing;
(iv)any ill health the person experiences, including mental illness;
(v)any disability the person has, including physical disability, intellectual disability and cognitive impairment;
(vi)any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;
(e) any other relevant cultural issue or obligation.
(2)The bail decision maker is to take account of an issue set out in subsection (1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time, including information provided by—
(a) the Aboriginal person’s family and community; and
(b) providers of Aboriginal bail support services.
(3)Despite subsection (2), the bail decision maker is to take account of the issues set out in subsection (1)(a) to (c) whether or not any evidence or information is before the bail decision maker in respect of those issues.
(4)The requirement to take an issue set out in subsection (1) into account applies regardless of—
(a)whether the person’s connection to their Aboriginality and culture has been intermittent throughout their life; and
(b)whether the person has only recently connected to or discovered their culture or heritage; and
(c)when the person first discloses that they are an Aboriginal person.
(5)If a bail decision maker refuses bail to an Aboriginal person, the bail decision maker must—
(a)identify the matters the bail decision maker had regard to in taking into account the issues set out in subsection (1); and
(b)either—
(i)state those matters orally when refusing bail and ensure that an audio visual recording, or an audio recording, is made of that statement; or
(ii)record those matters in writing in a form that the bail decision maker considers appropriate.[18]
[18]Bail Act 1977 s 3A.
Section 3B of the Act deals with child applicants, and it sets out a further list of matters that I must consider in this application.[19] I have considered all of the following factors:
[19]Ibid s 3B.
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act) the following issues—
(a)the child’s age, maturity and stage of development at the time of the alleged offence;
(b)the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
(c)the presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence;
(d)the need to preserve and strengthen the child’s relationships with—
(i) the child’s parents, guardian and carers; and
(ii) other significant persons in the child’s life;
(e)the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f)the importance—
(i)of supporting the child to engage in education, or in training or work; and
(ii)of that engagement being subject only to minimal interruption or disturbance;
(g)the need to minimise the stigma to the child resulting from being remanded;
(h)the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
(i)a risk that the child will become further involved in the criminal justice system; and
(ii)a risk of harm;
(i) the need to ensure that the conditions of bail—
(i) are no more onerous than is necessary; and
(ii) do not constitute unfair management of the child;
(j)the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort’s over‑representation in the criminal justice system—
(i) Aboriginal children;
(ii) children involved in the child protection system;
(iii)children from culturally and linguistically diverse backgrounds;
(k)whether, if the child were found guilty of the offence charged, it is likely—
(i)that the child would be sentenced to a term of imprisonment; and
(ii)if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(l) any of the following issues that arise—
(i)any ill health the child experiences, including mental illness;
(ii)any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
(iii)the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;
(m)any other relevant factor or characteristic. Note If the child is also an Aboriginal person, the bail decision maker must also take into account the issues set out in section 3A(1).
(1A) The bail decision maker is to take account of an issue set out in subsection (1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time.
(1B)Despite subsection (1A), the bail decision maker is to take account of the issues set out in subsection (1)(b) to (j) whether or not any evidence or information is before the bail decision maker in respect of those issues.
(2)In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3)Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.[20]
[20]Bail Act 1977 s 3B.
The unacceptable risk test
Assuming the applicant has demonstrated a compelling reason exists to justify a grant of bail, I must then apply ‘step 2 – the unacceptable risk test’.[21] I must refuse bail if I am satisfied there is a risk that the applicant would:
[21]Ibid s 4E.
(a) endanger the safety or welfare of any person, whether it be by committing an offence that has or has that effect, or by any other means, or;
(b) fail to surrender himself into custody in accordance with the conditions. I interpose that is not suggested to be a risk in this application; and
(c) that such a risk is unacceptable.[22]
[22]Ibid.
On this application, as I have indicated, the real dispute between the parties lies in whether the respondent has established that the applicant, if granted bail, is an unacceptable risk to the public.
Respondent’s submission
The respondent points to the applicant’s history over the last 18 months, which I have outlined. In substance, the respondent contends that the applicant’s history on bail is of an indifference to either compliance with conditions or staying out of trouble, and there is no reason, so the submission goes, to think that this time it would be any different.
Applicant’s submission
The applicant, through his counsel, contends that things have changed. He has recently been diagnosed as suffering from a mild intellectual development disorder, diagnosed by Dr Louise Crowe from the Children’s Court Clinic. Her report is part of the material that is before me. The applicant has a full‑scale IQ of 62 with a reduced capacity to reason, reduced capacity to plan, problem solve, think abstractly, comprehend complex ideas, learn efficiently and learn from experience.
Armed with that knowledge, the submission presented contends that conditions for bail, particularly intensiveness of bail, can be tailored to cater for his disability and to reduce the risk to an acceptable level. I heard evidence on the application from the applicant’s mother, who I regarded as an impressive witness who loves her son and is doing her best.
Youth Justice report
The fact remains, however, that he has not thrived by any means in the last 18 months or in his dealings with Youth Justice as they have supervised him during the time when he was at large. The applicant’s team leader at a regional Youth Justice centre, Ms Bates‑Fennessy, gave evidence and I considered her also to be a most impressive witness. She had authored a report which concluded that the applicant was not suitable for a grant of Youth Justice Bail, largely because of his indifferent compliance with previous grants of bail.
If, however, the Court were minded to grant bail, a plan has been developed which involves intensive bail, albeit at a reduced level initially. This includes very regular face‑to‑face meetings, daily contact and supervision in three particular programs. Ms Bates‑Fennessy, as I have said, was an impressive, conscientious witness.
Informant evidence
Finally, I should mention the evidence of the informant who was also a most impressive witness, Detective Bragagnolo of a regional CIU. She stated that the police were holding off charging the applicant with some type of home invasion/aggravated burglary‑type offence until the DNA results were in. In cases where no relevant charges have been laid, she advised the Court that the delay in receiving the results was expected to be 32 weeks. That is nearly seven‑and‑a‑half months and it seemed to me upon reviewing the material that that presents a significant problem for the respondent on this application. I have vacillated, I might add, in my conclusions.
Analysis
I regard the applicant as a significant risk of reoffending if released on bail. He has shown no real capacity to comply with previous grants of bail, nor any preparedness to stay out of trouble. My initial inclination was to refuse this application, however, I have been troubled by the delay that will be caused by the DNA testing. The applicant has been in custody now for nearly a month.
Assuming the request for DNA testing was sent off expeditiously, the results are probably six and a half to seven months away. It is understandable from both the prosecution and defence perspectives that the events of 18 September 2024 be dealt with in the one set of hearings rather than be fragmented in a piecemeal fashion. That means the delay in hearing the charges before the Court will be, one would think, at least eight months and more likely nine months to one year.
Even if there is a prospect of a resolution of the matters before the Court, I suspect all parties would want to know what is happening with the home invasion potential charge before negotiating an outcome. What that means is that the submission by Ms Foot that if bail is not granted, the applicant may well spend more time in custody than any ultimate sentence imposed, becomes a submission of some force.
Given that I am considering the likely sentence to be imposed on the charges the subject of this application only, upon reflection I think it is likely that the applicant will not on those charges be sentenced to a term of detention in a Youth Justice facility. He may, should they be consolidated with the other outstanding offences, but given his Aboriginality and given the fact that it would be heard in the Children’s Court where the focus is on rehabilitation and, given his age, I think it is likely that he would probably still avoid such a sentencing outcome. Should an aggravated burglary charge materialise, that may alter the balance somewhat but at the moment this is speculation. I cannot say, and neither can anyone in the Court, whether it will materialise. As was correctly pointed out on his behalf, I must deal with the charges before me and not indulge in too much speculation about what might happen in the future.
Relevant case law
The Court of Appeal recently in Roberts v The Queen emphasised the following principle:[23]
9.A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre‑trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre‑trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
10.The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre‑trial delay, but what justifies bail is the need to prevent or mitigate future injustice.[24]
[23][2021] VSCA 28 (Maxwell P, Niall and Emerton JJA).
[24]Ibid [9]–[10] (Maxwell P, Niall and Emerton JJA) (emphasis added).
HA (a pseudonym) v The Queen[25] was an appeal from a refusal of bail, the facts of which bore a distinct similarity to the case before me: a younger Aboriginal applicant, a 15‑year‑old with a significant intellectual disability was facing the Children’s Court for multiple serious charges including burglary, unlawful assault, criminal damage and 67 further charges of committing an indictable offence.
[25][2021] VSCA 64 (‘HA v The Queen’).
In that case, the Court made the following statements of principle:
54.The critical issue for the judge was whether, in the circumstances of the case, the risk that the appellant, if released on bail, might reoffend or endanger the safety or welfare of others was unacceptable. The resolution of that question necessarily involved the exercise of an evaluative judgement. As noted earlier, the question whether a particular risk is acceptable must be viewed in light of all the circumstances. Those circumstances may be such as to render acceptable a level of risk which in other circumstances would be unacceptable. Subsection 4E(3) of the Act provides that, in considering whether a risk mentioned in sub‑s (1)(a) is unacceptable, the Court must take into account the ‘surrounding circumstances’ as defined by s 3AAA(1).
55.In this case, five particular circumstances, each of significant weight, were relevant to deciding whether the risk which we have described was unacceptable. The first factor was that, although the appellant is 15 years of age, he has been assessed as having the equivalent functioning of a four to six year old child. Ms Pennacchia gave evidence that when she communicated with the appellant, it was as if she was doing so with a child who was in the preparatory or first grade level at school. Section 3B of the Act reflects the underlying principle in the criminal justice system that a decision to hold a child in custody should be made only as of a last resort. In considering whether to grant bail, and in the sentencing process, courts are astute to avoid imposing a term of detention, unless there is no other reasonable disposition available.
56.The second, associated, factor was the appellant’s low intellectual quotient and his personal and psychological profile. As mentioned, his intellectual abilities fall below those of almost all of his same age peers. He clearly suffers from a significant intellectual disability. That disability has been compounded by the traumatic and dysfunctional circumstances of his upbringing from the time of his birth. The appellant has had very little opportunity or capacity to live a stable lifestyle which would have enabled him to acquire appropriate social skills. In that context, Dr Cunningham, in May 2018, diagnosed the appellant to have sustained a Post‑Traumatic Stress Disorder as a result of the circumstances of his upbringing. More recently, Ms Lechner has assessed that the appellant presents symptoms of Complex Developmental Trauma. It is significant that he has, in the past, been assessed to be doli incapax in respect of other offending for which he has come before the courts.
57. The third factor was that the appellant has been assessed to be ‘extremely vulnerable to the influence of other young people whilst in custody’. According to the Youth Justice Bail Service report:
[HA] has developed maladaptive behaviours due to his functioning and trauma, which leave him vulnerable to the influence of others, namely adult persons of interest, and young people known to Youth Justice. [HA] is at significant risk of sexual exploitation and has been known to follow others who are committing offences to feel a stronger sense of belonging.
[In the conclusion to the report it is stated:]
[HA] is extremely vulnerable to other young people while in custody, both in his own personal safety, but also regarding becoming more influenced and intrenched (sic) in the criminal justice system.
58. The fourth relevant factor was the appellant’s Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
59.The provisions in the Act are also a recognition of the unacceptable over‑representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.
60. The appellant identifies as an Aboriginal person through his mother’s side. The Department of Health and Human Services is actively attempting to create a cultural plan for him. Due to his mother’s lack of engagement with the Department, his Aboriginality has only relatively recently been disclosed, and accordingly no cultural plan is currently in place. However, we note that the appellant has been referred to the Victorian Aboriginal Child Care Agency (‘VACCA’) for additional cultural support.
61.The fifth factor — and, in our view, the most significant — was that it is common ground that, due to his age and circumstances, the appellant is unlikely to be sentenced to a term in custody if he is found guilty of the charges which are outstanding against him. At the time of the application to the primary judge (on 26 February), the appellant had then spent some 50 days in custody. The judge, quite appropriately, viewed the fact that the appellant is unlikely to receive a custodial sentence as a ‘very significant matter’ in determining whether the risk was unacceptable.[26]
[26]HA v The Queen [2021] VSCA 64 [59]–[61] (Maxwell P and Kaye JA) (emphasis added) (citations omitted).
The shorthand version of those paragraphs is, inter alia, that the risk must be evaluated in the light of all the circumstances, including unreasonable delay, and those circumstances in combination may be such as to render a risk as acceptable when otherwise it may not be so. The object is to prevent injustice by what could be seen as preventative detention. Those paragraphs also articulate what is now the sentiment and indeed, some of the words of the redrafted s 3A of the Act.[27]
[27]Bail Act 1977 s 3A.
Conclusion on the applicant’s bail application
I indicate that my decision‑making on this application has been informed by all relevant sections of the Act, but particularly ss 3A and 3B of the Act.[28]
[28]Ibid ss 3A, 3B.
After anxious consideration, I am not satisfied that the applicant is an unacceptable risk pursuant to s 4E(1)(a)(i) of the Act, provided that stringent conditions are attached to the grant of bail.[29]
[29]Ibid s 4E(1)(a)(i).
I propose to grant bail in the applicant’s own undertaking with a number of quite stringent special conditions.
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