Re FA

[2018] VSC 372

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2018 0173

IN THE MATTER of the Bail Act 1977

and 

IN THE MATTER of an Application for Bail by FA

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2018
DATE OF JUDGMENT:	6 July 2018
CASE MAY BE CITED AS:	Re FA
MEDIUM NEUTRAL CITATION:	[2018] VSC 372

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CRIMINAL LAW – Bail – Child aged 16 years – Charges of assisting offender and theft of motor car – Bail refused by Children’s Court – Whether unacceptable risk that applicant would commit further offence, endanger person or fail to answer bail – Conditions capable of rendering risks acceptable – Bail granted – Bail Act 1977, s 3AAA, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Barker	Claudia Grimberg
For the Respondent	Ms J Piggott	Mr John Cain, Solicitor for Public Prosecutions

HIS HONOUR:

1. The child applicant — whom, for convenience, I shall refer to as ‘FA’ — turned 16 about seven weeks ago.  To this point, she has been in custody for some 77 days, and seeks bail from this court.

2. She is charged with a number of serious offences which allegedly occurred on 21 April 2018 — when she was aged 15 years — including two charges of assisting Eric Victorsen (‘Victorsen’) — aged 19 years — to avoid apprehension[1] (charges 1 and 2) and one charge of theft of a Lexus motor vehicle,[2] valued at $170,000 (charge 3), which had been stolen in the course of an aggravated burglary on 19 April 2018.  (She is also charged with possessing[3] and using[4] a drug of dependence, respectively methylamphetamine and cannabis.)

   [1]Crimes Act 1958, s 325(1).

   [2]Crimes Act 1958, s 74.

   [3]Drugs, Poisons and Controlled Substances Act 1981, s 73.

   [4]Drugs, Poisons and Controlled Substances Act 1981, s 75.

1. FA was arrested on 21 April 2018, and has been in custody since.  On the day of her arrest, a Bail Justice remanded her to appear at the Melbourne Children’s Court on 23 April 2018.  No application for bail was then made, and she was remanded for a ‘21-day rollover’ until 14 May 2018.   Once more, no application for bail was made on 14 May 2018, and FA was again remanded for a 21-day rollover until 4 June 2018.  No application for bail was made on 4 June 2018, and FA was further remanded for a Contest Mention on 25 June 2018.

1. On 12 June 2018, at the Melbourne Children’s Court, FA made an application for bail, in the course of which a Youth Justice Bail Service Report (‘the Bail Report’), dated 8 June 2018, was filed.  The application for bail was adjourned part-heard until 15 June 2018 for further submissions and a decision.  On 15 June 2018, the Children’s Court refused bail on findings that there was an unacceptable risk that FA would: ‘fail to appear in answer to bail’; ‘commit an offence whilst on bail’; or ‘endanger the safety or welfare of any person’.

1. As I have said, FA, who has not been in custody before, has to this point thus spent 77 days in custody.  Currently she is being held at the Melbourne Youth Justice Centre in Parkville.  The matter is due to return to the Children’s Court for ‘contest mention’ on 16 July 2018.

1. Six grounds are advanced in support of FA’s application for bail, filed 25 June 2018:

1. The Applicant is prima facie entitled to bail pursuant to section 4 of the Bail Act 1977 (Vic).

2.    The Applicant was only 15-years old at the time of the alleged offending on 21 April 2018.  The Applicant turned 16 years of age on 22 May 2018.

3.    The matter has been delayed by virtue of the Contest Mention on 25 June 2018 being adjourned for further Contest Mention on 16 July 2018.  The adjournment was due to the brief of evidence only being served on 20 June 2018. Provision of further material, including CCTV footage and photograph folios, is still pending.

4.    Any unacceptable risk can be ameliorated by appropriate bail conditions.

5.    Youth Justice supports the Applicant’s release subject to its Supervised Bail Program.

6.  The Applicant submits she should be granted bail pending finalisation of this matter.

1. FA’s application is supported by an affidavit affirmed by her solicitor, Claudia Grimberg, on 25 June 2018.    

2. The respondent opposes bail.  In an affidavit sworn on 29 June 2018, Mara Enright, a solicitor of the Office of Public Prosecutions,[5] sets out the grounds of opposition as follows:

   The offending in this matter is extremely serious and goes to the heart of the proper administration of justice. Having regard to all the factors outlined in s 4(3) of the Bail Act 1977 it is submitted that the application for bail should be refused on the grounds that:

   I.That there is an unacceptable risk that the applicant if released on bail would commit further offences.

   II.That there is an unacceptable risk that the applicant if released on bail would endanger the safety or welfare of the members of public.

   III.That there is an unacceptable risk that the applicant if released on bail would fail to answer his [sic.] bail.

   It is further submitted that although some measures could be put in place to reduce risks posed by the Applicant these measures are insufficient to reduce the risks alleged to an acceptable level.

   [5]The respondent also filed an affidavit sworn on 6 July 2018 by Andrew Steven, a solicitor with the Office of Public Prosecutions, which exhibited the transcript from the Children’s Court hearing on 12 June 2018.

1. Section 4 of the Bail Act 1977 (‘the Act’) makes plain that FA — a person accused of, and being held in custody in relation to, an offence — is entitled to be granted bail unless the Act requires this Court to refuse bail. By virtue of s 4E of the Act, this court must refuse bail if the ‘prosecutor’ satisfies the court that there is an unacceptable risk that FA would, if released on bail:

(i)endanger the safety or welfare of any person;

(ii) commit an offence while on bail;

(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv)fail to surrender into custody in accordance with the conditions of bail.

(As earlier indicated, the respondent relies on the first, second and fourth of those putative risks.)

1. In considering whether any relevant risk is unacceptable, s 4E(3) requires the court to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk. Thus, by reason of s 3AAA of the Act, this court:

must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—

(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c)the accused’s criminal history;

(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e)whether, at the time of the alleged offending, the accused—

(i)was on bail for another offence; or

(ii)was subject to a summons to answer to a charge for another offence; or

(iii)was at large awaiting trial for another offence; or

(iv)was released under a parole order; or

(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f)whether there is in force—

(i)a family violence intervention order made against the accused; or

(ii)a family violence safety notice issued against the accused; or

(iii)a recognised DVO made against the accused;

(g)the accused’s personal circumstances, associations, home environment and background;

(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i)the availability of treatment or bail support services;

(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k)the length of time the accused is likely to spend in custody if bail is refused;

(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.

1. Moreover, when interpreting the Act, the court is required by s 1B to take into account (among other things) that:

The Parliament recognises the importance  of —

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

(b) taking account of the presumption of innocence and the right to liberty; …

1. As I have indicated, the applicant is not required to show an absence of unacceptable risk, the burden of establishing an unacceptable risk in one or more of the prescribed ways resting with the prosecutor.  Obviously, any grant of bail must carry some risk.[6] Determination of whether an applicant relevantly poses an unacceptable risk therefore requires an evaluation of the suggested risk (or risks). Importantly, as the Act recognises, there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.

   [6]Robinson v The Queen (2015) 47 VR 226, 244 [65] (Priest JA); Re Guirguis [2015] VSC 242, [43] (Priest JA).

1. Before considering the competing contentions of the parties, it is necessary to very briefly outline the circumstances of FA’s alleged offending.  They are as follows. 

1. On 21 April 2018, at about 1.10 am, a stolen Lexus station wagon driven by Victorsen, in which FA was a passenger, collided with a Holden sedan at the intersection of Stud Road and Boronia Road, Wantirna.  The Lexus, being driven south along Stud Road, entered the intersection against a red light and collided with the Holden, which was travelling east on Boronia Road within a green light.  As a result of the injuries sustained in the collision, the passenger in the Holden, Matthew Goland, died at the scene; and the driver, Toudeh Zaeim, died in hospital shortly afterward.

1. FA and Victorsen fled the scene.  Minutes later, FA arranged for others to convey her and Victorsen from a location close to the scene.[7]  She later told investigators that she was at home in bed at the time of the collision, and had no involvement in it.

   [7]In oral evidence, the informant, Detective Leading Senior Constable Lauren McNiece, confirmed that this single act formed the basis of the two charges of assisting offender, given that Victorsen allegedly is guilty two separate offences of culpable driving.

1. In support of her application, FA relies on the Bail Report dated 8 June 2018, and an updated report dated 4 July 2018 (‘the updated report’), both prepared by Ms Josie Miceli, a Senior Youth Justice Case Manager, which recommend that FA be released on supervised bail.  The contents of those reports were also supplemented by the oral evidence of Ms Miceli.  Ms Katherine Bell, a Department of Health and Human Services (‘DHHS’) child protection practitioner, familiar with FA’s history and current situation also gave oral evidence.  Among other things, the Bail Report, updated report and oral evidence establish that FA:

·     was removed from her mother’s care in 2016 due to violence perpetrated by FA against her mother, that conduct breaching a family preservation order;[8]

[8]See Children, Youth and Families Act 2005, s 280.

·     has limited family support, having a ‘strained relationship’ with both parents, her father having physically assaulted her in the past;

·     is in the process of being enrolled in Oakwood School (a school created to enrol students who have otherwise stopped attending school);

·     is linked with psychological services through Eastern Health (she having previously been linked to psychiatric services through Youth Health and Rehabilitation Service (‘YHRS’)), and has been prescribed medication;

·     is also linked to the  Youth Support and Advocacy Service (‘YSAS’) for drug and alcohol counselling, and will meet with a worker on a weekly basis;

·     will reside in a residential care facility — that is, a residential facility for young people aged 12 to 17 years who have multiple and complex needs and whose behaviours place them at extreme risk of harm — where her behaviour will be strictly monitored.

1. The Bail Report, updated report and oral evidence also make clear that:

·     given that FA’s behaviour will be strictly monitored in the residential care facility, if she does not return to the facility Youth Justice will be notified, who in turn will notify the informant so that bail could be revoked;

·     should FA reduce involvement with her care team without proper reason, the informant will be notified so that bail could be revoked;

·     should FA become non-compliant with YSAS strategies to reduce her drug use, Youth Justice may take action to have her bail revoked;

·     FA will continue to see her psychologist, but if she becomes non-compliant with treatment Youth Justice may take action to have her bail revoked.  

1. Additionally, I note that, in the course of her evidence, Ms Miceli gave an undertaking to the court — one upon which I have placed a deal of reliance — that, should bail be granted, she will bring any breach of bail conditions to the attention of the informant.

1. It may also be gleaned from the available material that FA is a young person with a significant history of trauma.  At times, this affects her behaviour and places her at risk of harm when her mental health is poor and her drug risk is high.  In the relatively short time that she has been involved with Youth Justice, however, FA has built positive relationships with support workers and has turned to them when in need of their support.

1. In opposing bail, the respondent relies on a report by the informant, Detective Leading Senior Constable Lauren McNiece, dated the 27 June 2018 — prepared in response to the affidavit in support of bail affirmed by FA’s solicitor — and upon Detective McNiece’s oral evidence.  Among other things, the informant contends that:

·      a probation order to which FA was subject had expired only three days prior to the fatal collision;

·      that probation order had been breached by the offending that was the subject of the charges heard on 6 September 2017 (albeit that no breach proceedings had been brought in relation to that offending);

·     FA has a pending matter for theft of a motor car and assaulting police, the offences flowing from a driving incident on the 23 April 2018 that is said to be ‘strikingly similar to the current matter’;

·     FA is a relevant suspect in relation to the aggravated burglary in which the Lexus motor vehicle, used in the subject offences, was stolen;

·     FA is a methylamphetamine user;

·     FA has an extensive history of being under the care of DHHS;

·     at the time of the offending FA was residing in a bungalow (or ‘shed’) under the care of her DHHS carer;

·     FA does not attend school, have adult supervision or a stable environment;

·     FA does not have a relationship with her mother and father — there is an intervention order in place between FA and her father, and FA’s mother has expressed a preference that FA remain in custody;

·     at the time of the offending, there was an active intervention order taken out by DHHS preventing contact between FA and Victorsen, yet FA associated with Victorsen in defiance of that order;

·     FA has had 15 ‘safe custody’ warrants — issued when a child is in need of care and protection — since 2015, and has been reported missing six times whilst under the care of DHHS, so that there are concerns about the ability of DHHS to supervise and control her;

·     

FA has had two bench warrants issued against her, the most recent being on

21 June 2017 for failing to answer bail on charges for offences of violence, and another on 30 November 2016 relating to armed robbery;

·     FA has been previously charged with committing an offence whilst on bail;

·     the families of the deceased ‘strongly oppose bail’;

·     the present charges indicate an escalation of FA’s offending; and

·     there are no conditions that could alleviate the risks associated with FA, who has failed to comply with past orders.

1. I note that FA has a number of concerning findings of guilt and sentences imposed by the Children’s Court, including on:

·      23 August 2016, on charges of unlawful assault, assaulting and resisting police, committing an indictable offence whilst on bail, and others, she was without conviction placed on probation for eight months to 22 April 2017;

·      19 April 2017, on charges of robbery, blackmail, intentionally causing injury and theft, she was without conviction released on a Youth Supervision Order for five months to 18 September 2017;

·      19 April 2017, for breach of the probation order imposed on 23 August 2016, her probation revoked, and without conviction she was placed on probation to 18 April 2018;

·      6 September 2017, on charges of robbery, recklessly causing injury, unlawful assault, criminal damage and dealing with the suspected proceeds of crime, she was without conviction placed on probation to 18 April 2018; and

·      28 February 2018, charges were proven and dismissed.

1. Ultimately, the respondent has failed to persuade me that the putative risks cannot adequately be addressed by the imposition of strict conditions.

1. It is a serious thing to consign a child to custody or detention pending the resolution of a criminal charge (or charges), particularly where — as here — it is far from a foregone conclusion that the child will receive a sentence involving detention consequentially upon a finding of guilt.  Indeed, in my view, the custody or detention of a child should be avoided unless unavoidable.

1. In the present case, there seems little doubt that, should he be convicted of the charges that he faces, Victorsen will receive a sentence involving his detention.  The same cannot, however, confidently be said in FA’s case.  Self-evidently, the two charges against her of assisting an offender are far from being the worst examples of that particular offence, far more serious examples of such offending routinely coming before the courts.  A similar observation might be made of the theft charge (the drugs charges being minor).  Given that FA was aged 15 years at the time of offending, and is now only 16, it would be surprising if she received a sentence involving her further detention, particularly given that she has already been detained for 77 days.

1. In determining to grant bail, I do not ignore FA’s prior breaches of the criminal law and her failures to comply with court imposed sanctions and orders (in particular, her failure to answer bail and her commission of an indictable offence whilst on bail).  Nor do I ignore her extensive and unhappy history of involvement with the DHHS, or the opposition to bail of the families of the victims of Victorsen’s culpable driving.  FA’s circumstances are, however, the source of some sympathy.  There is little doubt that she has had a traumatic childhood, has become ostracised from her parents and has struggled with her mental health and drug use, those circumstances having influenced her past behaviour.

1. Importantly, however, the evidence demonstrates FA’s new and positive involvement with Youth Justice, which provokes some optimism that she may be able to turn her life around.  More to the point, perhaps, that new and positive involvement with Youth Justice, coupled with the strategies that have been put in place to ameliorate the risks that FA will commit further offences, endanger a person or fail to answer bail, have persuaded me that the putative risks are capable of being rendered acceptable by the imposition of appropriately strict conditions of bail.

1. Bail will be granted to the applicant on her own undertaking with conditions that the applicant:

1.appear at the Children’s Court at Melbourne on 16 July 2018;

2.reside at [redacted], and not change residence without prior permission of a court, or on the lawful direction of Ms Josie Miceli of Youth Justice or her nominees;

3.not leave the residence at [redacted], any day between the hours of 08.00pm and 7.00am;

4.not contact Eric Victorsen directly or indirectly, whether personally, by telephone, email, social media or other means;

5.report to the office of the South East Youth Justice Unit at 23 Ringwood Street, Ringwood, at 9.00am on 10 July 2018;

6.be under the supervision of Youth Justice, and comply with all lawful directions of Ms Josie Miceli or her nominees, including (but not limited to submitting to such lawful medical, psychiatric or psychological treatment or counselling as directed;

7.except as prescribed by a lawful medical practitioner, not to consume alcohol or drugs of dependence;

8.   not leave the State of Victoria;

9.not contact or approach any witness for the prosecution other than the Informant.

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