Re E. A
[2016] VSC 378
•1 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0084
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by E. A.
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2016 |
DATE OF RULING: | 1 July 2016 |
CASE MAY BE CITED AS: | Re E. A. |
MEDIUM NEUTRAL CITATION: | [2016] VSC 378 |
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CRIMINAL LAW – Application for bail – Aggravated burglary – Intentionally cause injury – Assault with a weapon – Theft of motor vehicle – Offences committed while on bail – Show cause position - Child accused – No prior convictions - Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Watt | OPP |
| For the Accused | Ms J. Garner | Gorman & Hannan |
HIS HONOUR:
The applicant is a 17 year old boy of Sudanese descent. He came to Australia with his parents via Egypt when he was five. When at large, he lives with his father and mother and three siblings at an address in Cranbourne.
On 23 April 2016 the applicant had a number of charges hanging over his head. I shall summarise these briefly.
a) On 6 April 2016, Magistrate Reynolds had placed the applicant on a deferral of sentence for a number of serious charges, including recklessly causing injury, aggravated burglary and theft of a motor vehicle. He is to re-appear before Magistrate Reynolds for sentence in August of this year. The charges relate to a violent episode in December 2015 where a number of young men invaded a home at night, caused injury and stole a motor vehicle. It is unclear to me the precise role that it is alleged the applicant played in those offences, but he was bailed by Magistrate Reynolds conditioned with a curfew and he was not to associate with a number of co-accused.
b) The applicant was also on bail for affray said to have occurred at Federation Square on 12 March 2016 during the Moomba Festival. That offence was alleged to have been committed, firstly whilst he was on bail for the above home invasion and, secondly in breach of a curfew condition of that original bail.
c) The applicant was further awaiting a summons for more minor offences in the CBD and Collingwood areas culminating in he and a friend allegedly attacking and damaging an occupied police van.
With these matters hanging over his head, the applicant is alleged to have committed numerous further offences at a number of locations. The applicant was remanded in custody in relation to these further allegations, and now makes an application for bail. I stress that these are allegations only at this stage I will make no findings of fact in their regard.
It is alleged that on 23 April 2016 the applicant and a number of other young men of African descent attended an occupied house in Brighton at 3.10 am. Some members of the alleged group were aged 17, others were adults. I shall refer to this group as ‘the young men’. The victims of this offending were asleep inside the house. It is alleged that the young men were armed with hammers and poles; they smashed their way into the house with rocks. There was nothing covert or secretive about it. One of the young men stole a set of keys to a BMW four‑wheel drive parked in the driveway that was visible from the street.
The male occupant of the house woke and went downstairs to investigate. His wife remained upstairs and called the police. The young men, it is alleged, set upon the victim hitting him with poles and sticks. The victim showed signs of strong resistance and the young men retreated outside. It is unclear to me how many of the young men were involved in this particular aspect of this offending. They threw rocks from the garden at the victim hitting him several times. The police arrived and they fled. It is alleged that the applicant stole the BMW four‑wheel drive and decamped with a co-accused. Text messages from the applicant's phone are said to demonstrate that he assisted in locating and collecting at least one of his co‑accused. Some time shortly after that a police patrol saw the stolen BMW in South Road Brighton East and gave chase, the BMW allegedly accelerated through a red light at the intersection of Bluff Road and South Road, and the police terminated the chase.
It is not clear to me whether the applicant is alleged to be the driver of the BMW at this stage, and after hearing the evidence of Senior Detective Dergacz it is not clear to me that there is in fact an offence concerning the driving of that BMW that will be pursued. It might be that the offence concerns subsequent driving of a grey Honda four‑wheel drive.
Some hours later at 6.40 am in Ormond it is alleged that the applicant, this time with four other males, attended another residential address. They again gained access, again it is alleged they were armed with weapons and they approached two males who were asleep in a bed. Two of the young men it is alleged turned on a light and immediately attacked these two occupants with a hammer, with fists and by kicking. Some of the men ransacked the bedroom while others surrounded the victims and continued to assault them. A hammer was held above one man's head, he was threatened with it if he refused to unlock his mobile phone, convert it to English and disable the password, Apple ID and GPS. The two men were asked if they were gay and were the subject of some humiliating remarks.
The keys to one of the victim’s Honda vehicle was stolen. There were other occupants in the upstairs region of the house; a third alleged victim was kicked to the head and face and was threatened by two of the young men. He handed over his mobile phone and iPhone 6. It is alleged the same two men then entered a second upstairs bedroom where another male occupant slept, they kicked and punched him to wake him, they threatened him with a hammer and they stole his mobile phone and the keys to his BMW. On the way out these young men, it is alleged, stole several Apple MacBook laptop computers and the two aforementioned vehicles. The police were called and were able to trace the movements of the third victim’s iPhone.
Both stolen vehicles were located in Cranbourne. The stolen Honda was detected at 3.55 pm. A ten minute police chase ensued. The applicant was photographed driving the Honda during this pursuit and was apprehended by the police attempting to flee after abandoning it near a railway station in Cranbourne not far from his parents’ house. The applicant had with him a black Apple iPhone stolen during the home invasion at Ormond.
An analysis of the applicant’s phone records is said to demonstrate the applicant’s presence at both the Brighton and Ormond addresses. The applicant was arrested, exercised his right to silence, and was remanded in custody. To date he has served a little over two months on remand at the Parkville Youth Justice precinct. It is common ground that the applicant must show cause why his detention in custody is not justified or bail shall be refused pursuant to s 4(4) of the Bail Act 1977 (‘the Act’). The applicant is in a show‑cause position because:
(a) he is charged with indictable offences whilst at large awaiting trial for another indictable offence, that is s 4(4)(a);
(b) he is alleged to have used or threatened to use an offensive weapon in the course of committing an indictable offence, s 4(4)(c);
(c) he is charged with aggravated burglary, s 4(4)(c).
I must also consider s 3B of the Act, which requires that I take into account seven considerations pursuant to s 3B(1) including: the need to consider all other options before remanding a child in custody; the need to strengthen and preserve the relationship between the child and the child’s family; the desirability of allowing the living arrangements of the child to continue without interruption; the desirability of allowing the education of the child to continue without interruption; the need to minimise the stigma to the child resulting from being remanded in custody; the likely sentence should the child be found guilty of the offence charged; and the need to ensure that the conditions of bail are no more onerous than necessary and do not constitute unfair management of the child.
I am also entitled, pursuant to-s 3B(2), to take into account any recommendation or information contained in a record provided by a Bail Support Service. To that end I heard from Ms Raike, an acting senior case manager with the Bayside Peninsular Department of Human Services. I was told of a proposed intensive bail program which, if this application were successful, the applicant could be placed upon. The distinguishing features of that program are:
1.That the applicant would be required to meet Ms Raike at least once a week, perhaps more.
2.The applicant would remain in regular phone contact with Ms Raike.
3.Should the case manager or someone from her organisation become aware that the applicant has breached a bail condition, they would contact the informant. This third aspect is in contrast to the usual situation that pertains.
I also heard from the applicant’s father. It is impossible not to feel great sympathy for Mr A who has brought his family across the world to give them a better start in life. As a parent he would be, and no doubt he is, most distressed at the current predicament of his son.
Affidavit material filed on the applicant’s behalf foreshadowed the submissions that the applicant's youth, his stable family background, his academic accomplishment (he is obviously a bright young man), and the Youth Justice support for his application all are factors in the applicant’s favour in this application.
It was put on his behalf that he has no prior criminal convictions, and suggested via affidavit that time served, which is currently two months, is likely to outweigh any sentence ultimately imposed by the Children's Court. It was also put on his behalf that the applicant is not an unacceptable risk of decamping whilst on bail, and that conditions can be put in place to reduce the risk of re-offending to an acceptable level. The applicant proposed a static residence, a curfew, non‑association conditions and a requirement that the applicant comply with the directions of Youth Justice.
I am afraid I am unable to accept these submissions. I consider that the applicant’s offending, if proven, is very serious; bordering upon grave. I consider that the submission (or foreshadowed submission) that time served (2 months’ detention) is sufficient to deal with the applicant's criminality is misconceived.
As I will not be hearing the applicant's case it is inappropriate to say more. In my view, the applicant, despite his youth and despite my earnest consideration of the factors in s 3B of the Act, despite his lack of prior history and his sound family background, has failed to show the necessary cause. He was on two sets of bail at the time that he is alleged to have committed these offences. The conditions that were attached to those grants of bail required that he remain at home during curfew hours and that he not associate with a number of the young men who are now his co-accused in the instant offending.
At the time of the alleged commission of these offences he was awaiting sentence for serious offending involving a home invasion. There is a strong case, in my view, that he has participated in two more home invasions involving the vicious assault of residents within those homes. It gives me no pleasure to remand a child in custody, and I regard it as a last resort. The applicant, however, is 17; he is not 12 or 14, and, in my view, represents a danger to public safety.
The application is refused.
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