Re ER
[2022] VSC 88
•25 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0040
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by ER |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 February 2022 |
DATE OF JUDGMENT: | 25 February 2022 |
CASE MAY BE CITED AS: | Re ER |
MEDIUM NEUTRAL CITATION: | [2022] VSC 88 |
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CRIMINAL LAW – Bail application – Charges including aggravated home invasion, threaten serious injury, assault, criminal damage, theft and breach of bail – Offences committed while subject to two sets of bail – Applicant 17 years of age – Stable home environment – Education opportunity – Support of Youth Justice Bail Support Service – Whether exceptional circumstances – Whether unacceptable risk of further offending – Bail granted with conditions – Bail Act 1977 ss 3AAA, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri | Orenstein Lawyers |
| For the Respondent | Mr B Nibbs | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 23 September 2021, the applicant was arrested and charged with two charges of theft and two charges of committing an indictable offence while on bail. Those offences are alleged to have been committed by the applicant at premises in Colac on 10 August and 11 August 2021. The informant, in respect of the charges, is Constable Harris of the Colac Police Station. After his arrest, the applicant was released on bail on his own undertaking, with conditions that he reside at the family home at [redacted] and that he not depart those premises between 9:00 pm and 6:00 am.
Subsequently, on 9 February 2022, the applicant was arrested by Detective Senior Constable Sims of the Colac Crime Investigation Unit on one charge of aggravated home invasion, two charges of threatening to inflict serious injury, one charge of burglary, one charge of unlawful assault and one charge of criminal damage. The fourth charge, of burglary, will be amended to one of aggravated burglary. Those offences arose from a home invasion, in which it is alleged the applicant was involved, on premises in Morrison Street, Colac shortly after 1:00 am on that date.
On the same day, 9 February, an application by the applicant for bail in respect of those latter charges was refused by the Geelong Children’s Court, and the applicant’s bail, in respect of the charges for which Constable Harris is the informant, was revoked.
Subsequently, on 17 February, the Youth Justice Bail Service provided a report recommending the release of the applicant on bail on specified conditions. As a result of that report, a further application was made on behalf of the applicant for bail on 18 February to the Geelong Children’s Court. That application was also refused. The charges against the applicant, in respect of which Constable Harris and Detective Senior Constable Sims are respectively the informants, are listed for a committal mention in the Geelong Children’s Court on 13 April next.
The applicant now applies to this court for bail in respect of those two sets of charges.
At the time at which the applicant is alleged to have committed the offences that are the subject of the charges laid by Constable Harris, and the offences that are the subject of the charges laid by Detective Senior Constable Sims, he was then on bail in respect of two separate matters, both of which are currently listed for mention in the Colac Children’s Court on 2 May 2022.
In the first matter, in which Acting Sergeant Johnston is the informant, the applicant was charged on 19 January 2021 with burglary, theft and attempted theft that were alleged to have been committed by him at two separate premises in Colac on 4 October 2020. On being arrested, the applicant made full admissions to having committed those offences. Following his arrest, he was released on bail on his own undertaking.
In the second matter, the applicant had been charged on 13 May 2021 by Senior Constable Cameron of the Colac Police Station, with charges of theft, assault with a weapon and unlawful assault, alleged to have been committed by the applicant on 11 April 2021 at or in proximity of a bottle shop in Colac. After his arrest, he admitted that he had committed those offences. The applicant was released on bail on those charges on his own undertaking.
The alleged offending
As I mentioned, the first set of charges, in respect of which the applicant seeks bail, are those in respect of which Constable Harris is the informant. The offence, that is the subject of first charge of theft, is alleged to have been committed by the applicant on 10 August 2021. It is alleged that at approximately 7:50 pm on that date, he entered the premises of K–Hub in Colac, collected a blue shopping basket, and proceeded into the store where he filled the basket with Pokémon card packs to the value of $492. He then walked out of the store through other entrances to the premises, carrying the basket and the items in it without paying for them. The offences were captured on CCTV.
The second charge of theft was alleged to have been committed by the applicant on the following day, 11 August 2021. On that date, at approximately 6:20 pm, the accused returned to the K–Hub premises in Colac. He again took hold of a basket and proceeded into the toy section of the store, where he filled the basket with Roblox and Minecraft toys to the value of $434. He then exited the store without paying for the items. Again, the offence was captured on CCTV from inside the store.
After the applicant was arrested, he admitted committing the two theft offences, and he said that he had done so in order to obtain money.
The second set of charges, in respect of which the applicant seeks bail, is that in respect which Detective Senior Constable Sims is the informant. The offences which are the subject of those charges are alleged to have been committed by the applicant on 8 February 2022 in company with three co–offenders, ND, who is 15 years of age and CO and IJ, both of whom are 17 years of age. CO is the step–sister of the applicant. The offences are alleged to have taken place in the home of Mr Tyson Norman in Colac.
On that evening, the female victim was at Mr Norman’s home with two other male persons, one of whom was a brother of the co–offender IJ. During the course of the evening, there were verbal arguments between IJ and his brother on social media. At about midnight on 8 February, the two male friends of the victim left the premises, leaving the victim and Mr Norman there. Shortly after midnight, on 9 February, Mr Norman received a telephone call from the co–offender IJ, who yelled at him and made threats to physically harm Norman, the victim and IJ’s brother. He threatened to assault them with crowbars. In the meantime, the victim telephoned her mother to come and collect her.
At approximately 1:10 am, the applicant and his three co–accused arrived at the premises, carrying a knife and two crowbars. At that time, Norman was out the front of the premises with the victim. The applicant and his three co–offenders ran past Norman into the house through the unlocked door, which they locked, preventing Norman from re–entering it. The victim had run back inside the house and hidden in the toilet. She sent a text message on her mobile phone to her mother asking her to call the police. The four offenders, including the applicant, kicked the toilet door until it broke off its hinges. The co–accused CO then physically assaulted the victim with the crowbar, striking her a number of times and stomping on her head. She then yelled at the victim, demanding that the victim give her the victim’s leather handbag which was hanging around her neck. CO snatched the bag from the victim. At that point, Mr Norman had re–entered the property and tried to intervene in the assault, but when he did so, he was he was threatened by CO. All four accused then ran out the front door of the house and passed Norman into Morrison Street. They were arrested shortly after departing from the premises.
After his arrest, the applicant admitted that he had attended at and entered the Morrison Street premises with the co-accuseds, who were armed with crowbars and a knife. He said that the co-accused CO then kicked in the bathroom door and assaulted the victim.
The applicant’s personal circumstances
The applicant was born on [redacted]. He has no previous criminal history. He is the youngest of a family of four children. The applicant’s parents separated when he was young, and he has not had any contact with his biological mother since then.
The applicant’s father then re–partnered with RT, by whom the applicant was effectively raised. In effect, there were some seven siblings in that family, comprising the applicant’s 20-year-old sister, four step–siblings and two half–brothers. At some point, the applicant’s father and RT separated, and the applicant has continued to live with RT in her home at [redacted]. During that time, he had frequent contact with his father who resides at Colac Caravan Park.
The applicant attended mainstream school until Year 8. At the time of the offending, he was enrolled in St Joseph’s Flexible Learning Centre in Colac.
On the hearing of the application, RT gave evidence. She explained that at present there are eight children living in her home. Before the applicant was taken into custody, he lived in a two bedroom unit at the rear of the premises in [redacted] with his step-sister CO. That unit is now occupied by RT’s eldest daughter Sheree, who is presently pregnant, and who has a close relationship with the applicant. RT told me that she regards Sheree as having a good influence on the applicant and that she would be able to undertake some supervision of him if he were released on bail. In addition, RT’s eldest son has a driver’s licence, and he would be able to convey the applicant to any appointments fixed by Youth Justice.
RT further said that, apart from his alleged involvement in the offending on 9 February last, the applicant had been diligent in complying with the conditions of the bail which had been set on 23 September last. In particular he had, on a number of occasions, resisted invitations from friends to breach curfew during the evening and night. RT also said that the applicant had been attending at St Joseph’s Flexible Learning Centre, or its predecessor, for the past three years, and generally his attendance at the Centre had been good.
Youth Justice Bail Service report
The Youth Justice Bail Service report was compiled by Ms Monique Cilione, who gave evidence on the application.
In the report, Ms Cilione noted that the applicant continues to have ongoing family support as well as access to safe and stable accommodation at the premises at [redacted]. In that respect, it must be noted that before his arrest, the applicant resided in a unit at the back of that property with his step-sister and alleged co–offender, CO. Nevertheless, Ms Cilione considers that RT presents as a positive support to the applicant, and RT has advised that she will continue to encourage the applicant and his step-sister to desist from further offending. The applicant also has the support of a step–uncle, Mr Jamie Miller, who resides in Hoppers Crossing. Before he was remanded in custody, the applicant had been offered an opportunity to reside with Mr Miller, who was able to offer him some casual employment. However, if the applicant were released on bail, that employment opportunity is not currently available.
Ms Cilione has contacted Mr Mick McCrickard, the Outreach Teacher at St Joseph’s Flexible Learning Centre. Mr McCrickard explained that the education provided by the Centre is ‘outreach based’, in which he engages young people on a daily basis in general VCAL studies as well as positive recreational activities. Mr McCrickard confirmed that if the applicant were released, he could return to education at the Centre. Mr McCrickard advised Ms Cilione that the applicant had engaged well at that institution when he attended there and he was focussed on obtaining employment. The applicant has also expressed an interest in engaging with a local basketball team.
Ms Cilione also noted that before the applicant was remanded, he had engaged in frequent use of cannabis when in the company of his associates.
Ms Cilione concluded that the applicant presented with a number of factors that supported bail compliance, including the support of his family, his access to education, and his motivation to engage with Youth Justice and to participate in recreational basketball. Accordingly, she recommended that the applicant be granted supervised bail with conditions that include that he reside at the premises at [redacted], that he engage with support services as directed by Youth Justice, and that he not leave his home between 9:00 pm and 6:00 am.
Ms Cilione gave evidence on the hearing of the application. She said that the applicant had engaged well when she had interviewed him for the purposes of her report, and he had expressed a willingness to participate in the program. Ms Cilione produced a proposed timetable if the applicant were granted bail. That timetable provided for the applicant to attend school each day between 10:00 am and 2:00 pm. Each Tuesday and Thursday he would have a face-to-face appointment with Youth Justice, as well as a video appointment on each Friday, and an appointment on each Saturday which would involve the applicant either meeting with her face-to-face or talking with her on the telephone. The timetable also provides for the applicant to attend gymnasium each Tuesday, Thursday and Sunday. Ms Cilione explained that at the appointments she would discuss with the applicant his present circumstances to ensure, so far as possible, that he was attending to the conditions of the bail granted to him.
Legal principles
As the applicant has been charged with the offence of aggravated home invasion, he is required, under s 4AA of the Bail Act 1977, to establish the existence of exceptional circumstances that justify the grant of bail. Section 4A(3) provides that in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. Section 3AAA prescribes a non–exhaustive list of the surrounding circumstances which are required to be taken into account.
If the Court is satisfied that the applicant has established the requisite exceptional circumstances, s 4D and s 4E of the Act provide that the application for bail must be refused, if the Court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would (inter alia) commit further offences. If the applicant establishes the existence of exceptional circumstances, the prosecution bears the burden of satisfying the Court as to the existence of that unacceptable risk.[1]
[1]Bail Act 1977 s 4D(2).
In the present case, the respondent contends that the applicant has failed to establish the requisite exceptional circumstances. It further contends that if the applicant were released on bail, there would be an unacceptable risk that he would commit an offence.
The content of the term ‘exceptional circumstances’ has been discussed in a number of decisions of this Court. In effect, the applicant must establish circumstances that are ‘right out of the ordinary’, so that they are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail.[2] It is well established that exceptional circumstances may comprise a combination of circumstances which, individually, might not themselves be considered to be exceptional. One matter, that is commonly regarded as important in determining whether exceptional circumstances have been established, is the presence or absence of factors which might point to the applicant presenting as an unacceptable risk in any of the ways specified in s 4E(1) of the Bail Act.[3]
[2]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
[3]Re Gloury–Hyde [2018] VSC 393, [30] (Priest JA).
It is well accepted that the youth of an applicant may be a significant factor to be taken into account in determining whether exceptional circumstances have been established.[4] Similarly, in determining whether the risk of an applicant reoffending, while on bail, is unacceptable, the young age and attendant circumstances of the applicant are regarded as important considerations.[5]
[4]Re JO [2018] VSC 438, [14] (T Forrest J); Re JF [2020] VSC 250, [32] (Tinney J); Re Johnson [2021] VSC 800, [63] (Lasry J).
[5]HA v The Queen [2021] VSCA 64, [6], [73] (Maxwell P and Kaye JA); Re Andrew [2022] VSC 46, [25] (Kaye JA).
In that respect, as the applicant is a child, s 3B of the Bail Act is relevant to the application. Section 3B(1) provides that in making a determination in relation to a child, it is necessary to take into account (inter alia) the following matters: the need to consider all other options before remanding the 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 or training of the child to continue without interruption; and the need to minimise the stigma to the child resulting from being remanded in custody. Section 3B(2) provides that in making a determination in relation to a child, it is necessary to take into account any recommendation or information contained in a report provided by a bail support service.
Submissions
In support of the application, counsel for the applicant relied on the combination of a number of circumstances in support of the submission that the applicant had demonstrated exceptional circumstances that justify his release on bail.
In particular, counsel relied on the age of the applicant. At the time of the alleged offending and at the present time the applicant was and is, at law, a child. Counsel noted that although there are a number of outstanding matters against the applicant, nevertheless he does not have any previous convictions, and he has never previously been detained in custody. The applicant has available stable accommodation with his family. If the applicant were granted bail, he would be able to resume education at St Joseph’s Flexible Learning Centre. Counsel noted that the applicant had previously engaged well with his education and was keen to resume it. Counsel placed particular emphasis on the availability of the Youth Justice Supervised Bail Program which would be designed to divert the applicant from further offending.
Finally, counsel submitted that there is a reasonable likelihood that if the applicant were convicted of the charges, the sentencing disposition may not involve a term of detention. In that respect, it was noted that the applicant’s alleged role in the offending was ‘somewhat secondary’ to that of the co–accused, and that, according to the evidence of Tyson Norman, the applicant himself was not armed with any weapon in the course of the home invasion. In that context, it was submitted that the potential delay in the finalisation of the charges is relevant. Although that delay might not be inordinate in the current circumstances, nevertheless the applicant would spend at least a few months in detention if he were not granted bail.
Counsel for the applicant further submitted that if the applicant were released on bail he would not constitute an unacceptable risk of offending. In support of that submission, counsel relied on a number of the circumstances which he had relied on in respect of the existence of exceptional circumstances. In particular, the applicant is a young person who has no criminal history. If he were released on bail, he would have the advantage of supervision by Youth Justice, he would be engaged in education, and he would live in a stable home environment. Further, counsel noted that the applicant has already spent some 16 days in custody. The applicant has found that experience difficult, and, counsel submitted, has learned a salutary lesson from his time in detention.
In response, counsel for the respondent accepted that in view of the combination of factors relied on by the applicant, I could be satisfied that the applicant had established the requisite exceptional circumstances justifying his release on bail. However, he submitted, that if the applicant were released on bail, there would be an unacceptable risk that he would reoffend. In that respect, counsel noted that at the time in which the applicant is alleged to have committed the offences on 9 February last, he was subject to three separate grants of bail, each of which he breached, including the condition (set in the third grant of bail) that he abide by a night time curfew. Counsel acknowledged that in assessing whether there is an unacceptable risk in the circumstances, the test which is applied to the applicant, as a 17-year-old legal child, is less stringent for the applicant than if he were 18 years of age or more. Nevertheless counsel submitted that the applicant has repeatedly demonstrated a flagrant disregard for his obligations when released on bail.
Analysis and conclusion
The first question, then, is whether the applicant has established the existence of exceptional circumstances justifying his release on bail.
The starting point, in respect of that issue, is that the offending, in which the applicant is alleged to have been involved on 9 February, was particularly serious. It involved the applicant’s participation in a gratuitous and cowardly violent attack on a defenceless young woman in her friend’s home. As I understand it, the evidence does not suggest that the applicant himself engaged in any violent act towards the victim and, based on the evidence of Tyson Norman, it would seem that he was not armed with a weapon. Nevertheless, the prosecution case, that he was present at and involved in the violent incident, would appear to be quite strong.
In addition, although the applicant does not have any previous criminal convictions, at the time of the alleged offending he was subject to three sets of bail, including one set which imposed a night time curfew. The applicant therefore is not in a position to submit that if he were released on bail there would be no discernible risk of reoffending.
Each of those factors tend against a conclusion that the applicant has established the requisite exceptional circumstances. However, there are a number of other factors, relied on by counsel for the applicant, which do support a finding that exceptional circumstances have been established.
First and foremost, the applicant is, at law, a child. The provisions of s 3B of the Bail Act, to which I have referred, have particular application in a case such as this. The applicant does have available stable living arrangements with his family. It is desirable, if possible, that he be permitted to continue to reside in the family home in the care, and under the supervision, of RT. It is particularly desirable that he be able to resume his education at St Joseph’s Flexible Learning Centre. In addition, the circumstance that, if the applicant were released on bail, he would be subject to supervised bail by the Youth Justice Bail Service, is a matter of some moment. In his involvement with that service, the applicant would participate in a program that would involve him engaging in constructive activities.
In the present case, it is difficult to hypothesise whether any likely delay in the proceeding might exceed any sentence imposed on the applicant in respect of the charges that are outstanding against him. Nevertheless, in view of the sentencing considerations prescribed by the Children, Youth and Families Act 2005, in respect of offenders who are children, it is, at the least, reasonably conceivable that a court might ultimately conclude that a sentencing disposition, which would not involve a period in detention, would be appropriate.
Taking those matters into account, and in particular giving full weight to the applicant’s age and the circumstance that he is a child, I am satisfied that the applicant has established the requisite exceptional circumstances that would justify the grant of bail.
The more difficult question is whether there is an unacceptable risk that, if the applicant were released on bail, he would commit a further offence. The onus of establishing such an unacceptable risk lies on the respondent.
In view of the applicant’s past history, the conclusion is unavoidable that, if he were released on bail, there would be a risk that he might reoffend. The applicant’s flagrant breach of the terms of three separate grants of bail to him, and the manner in which he has breached them, demonstrate that such a risk is far from theoretical. The outstanding charges against him mean that the applicant has three times breached the condition that he not reoffend if released on bail. The applicant’s alleged involvement in the most recent set of charges, in the early hours of 9 February, involved a blatant breach by him of the condition which had been imposed on him, when he was released on bail on 23 September last, that he not leave his home at [redacted] between 9:00 pm and 6:00 am.
On the other hand, if the applicant were released on bail, he would be subject to the supervision of the Youth Justice Bail Service. As I have noted, his involvement in that service, and in the program outlined by it, should have a salutary effect in ensuring that he be engaged in appropriate and constructive activities each day. Further, the Youth Justice Bail Service will provide a positive layer of supervision in ensuring that the applicant abide by the terms of any bail on which he might be released.
In addition, the applicant has now been in custody for some 16 days. In her report, Ms Cilione noted that the applicant was feeling quite anxious in custody, due to feeling unsafe and quite scared. In those circumstances, it might be expected that the applicant’s short period of detention should have instilled in him an invaluable lesson in the importance of abiding by the terms of his bail and, in particular, of refraining from engaging in further offending.
Finally, I note that RT gave evidence that if the co-offenders CO and IJ were released from custody, neither of them would return to the family home where they had been previously residing. If they are released on bail, CO would reside with her older sister a short distance out of Colac and IJ would reside in accommodation available to him in Corangamite. That arrangement, and the circumstance that the applicant’s older sister Sheree would share the unit at the back of the premises with him, also assist in determining whether the risk of the applicant reoffending, if he were released on bail, would be unacceptable.
The resolution of the question, whether there would be an unacceptable risk of the applicant offending, if he were released on bail, is not straightforward. If the applicant were 18 years of age or older, I might well have concluded that, if he were released on bail, the risk of him reoffending would be unacceptable so that he should be refused bail. However, s 3B reflects the principle that a risk, which would be unacceptable in the case of an adult applicant for bail, might, in the circumstances, be a risk which it is acceptable to undertake in the case of an applicant who is a child.[6] Applying that principle, and taking into account the matters I have discussed, and in particular the applicant’s youth, I am not persuaded that the risk of the applicant reoffending would be unacceptable.
[6]Re JB [2020] VSC 184, [50] (Kaye JA).
Accordingly, I shall grant the applicant bail, subject to conditions which include the following:
(i) The applicant reside at [redacted];
(ii) The applicant remain at the premises at [redacted] between the hours of 8:00 pm and 6:00 am unless in the company of RT or a person agreed and approved in writing by Youth Justice;
(iii) The applicant present at the front door of the premises at [redacted] during the curfew hours upon request by any member of Victoria Police;
(iv) The applicant comply with all lawful directions of the Youth Justice Supervised Bail Program;
(v) The applicant engage with support services as directed by Youth Justice;
(vi) The applicant report to the officer in charge or his or her nominee, at Colac Police Station each Monday, Wednesday and Friday between the hours of 6:30 am and 7:00 pm;
(vii) The applicant not associate with his co–accused CO, IJ and ND;
(viii) The applicant not contact or associate with any prosecution witness other than the informant;
(ix)The applicant not leave the state of Victoria;
(x) The applicant appear at the Geelong Children’s Court on 13 April 2022.
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