Re FT
[2024] VSC 158
•28 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0054
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by FT |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATES OF HEARINGS: | 21, 25, 28 March 2024 |
DATE OF RULING: | 28 March 2024 |
CASE MAY BE CITED AS: | Re FT |
MEDIUM NEUTRAL CITATION: | [2024] VSC 158 |
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CRIMINAL LAW – Bail – 14 year old child – Charges of aggravated burglary, theft of a motor vehicle and failing to stop after an accident – Requirement to show exceptional circumstances – Support of Youth Justice bail support services – Exceptional circumstances established – Risk not shown to be unacceptable if bail granted for 1 week on strict conditions – Conditions include child not being in the community unless accompanied by a carer – Bail granted for 1 week – Multiple breaches of conditions during 1 week period of bail – Further application – Child unacceptable risk of endangering the safety or welfare of other persons – Further application refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5, 8, 12, 16B, 34.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | D De Witt | Dotchin Tan |
| For the respondent | A Singh (solicitor) | Victoria Police |
HIS HONOUR:
A. Introduction
To quote from another judgment delivered in this court last week:[1]
“Hit him, hit him! Hit him, hit him!” This is what a passenger in a stolen car urged the driver to do as they neared a cyclist. The bike’s red tail light stood out starkly ahead of them in the dark of the early morn of 23 January on Beach Road in Beaumaris. Someone — there seemed to be at least three on board, but it is not clear which of them — then made the sound five‑year‑olds make when playing with Matchbox toys as the car veered frighteningly close to the cyclist. But, instead of the car swerving away at the last moment — as one might expect, or at least hope — it actually struck the rider. The impact was so hard that the left side of the car’s windscreen cracked in a spiderweb pattern, and the rider was left with a broken ankle and bleeding on the brain, among other injuries.
Amid the laughter that followed — perhaps nervous, perhaps not — one of the car’s occupants then said, “Oh, fuck! Oh, shit! My bad.” This might have been the passenger who urged the driver to hit the cyclist, as his voice sounds the same. It might have been the driver. It’s not clear. A different occupant — probably a back seat passenger — immediately said something like, “Hey, c’mon, pull over! C’mon, pull over.” But the driver did not stop. Instead, he drove on apace, leaving the seriously injured cyclist for dead.
We know this horror show occurred because boys — yes, children of 14 and 17 — in the car recorded it on their phones, in sound and vision. …
[1]Re DF [2024] VSC 122, [1]-[3] (Croucher J).
The passenger in the stolen car who is believed to have urged the driver to hit the cyclist is alleged to be the applicant, a 14 year old child (“FT”).[2] However, it is not for the alleged events referred to above that FT now comes before this court. As explained in more detail below, FT was arrested and charged in relation to those matters. He was remanded and then released on bail after spending 11 days in custody. Just over 2 weeks later, it is alleged FT again engaged in high risk and dangerous criminal conduct, which again involved a stolen car and a hit and run collision. As a result of this later conduct, on 28 February 2024, FT was arrested again and remanded in custody.
[2]A pseudonym has been used to protect the identity of the applicant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
On 29 February 2024, FT appeared before the Children’s Court. He did not apply for bail at that time. The matter was adjourned and FT was again remanded in custody. On 5 March 2024, FT applied for bail in the Children’s Court. The matter was adjourned part-heard and bail was refused on 8 March 2024.
On 12 March 2024, a notice of intention to make an application for bail was filed in this court on behalf of FT. The application was heard and determined on 21 March 2024. Having been granted bail on 21 March 2024 for 1 week, FT again seeks bail on the following charges alleged to have been committed on 28 February 2024:
(1)Aggravated burglary, contrary to section 77 of the Crimes Act 1958 (Vic).
(2)Theft of a motor vehicle, contrary to section 74 of the Crimes Act.
(3)Failure to stop after an accident, contrary to section 61(1)(a) of the Road Safety Act 1986 (Vic).
(4)Committing an indictable offence whilst on bail, contrary to section 30B of the Bail Act 1977 (Vic).[3]
(5)Two charges of theft, contrary to section 74 of the Crimes Act.
When bail was granted a week ago, it was subject to strict conditions.[4] There is no dispute that a number of those conditions have been breached by FT.
[3]It is noted that s 30B of the Bail Act has since been repealed.
[4]See par 52 below.
In this court, FT relied upon his status as a child, his lack of criminal record and the support of Youth Justice, among other factors, to establish the existence of exceptional circumstances. The prosecution did not contest that exceptional circumstances had been established. However, the application for bail was opposed by the prosecution on the basis that FT would present an unacceptable risk if he were to be released on bail.
B. Background
B.1 Alleged offending the subject of the present application for bail
It is alleged that between 11.00pm on 27 February 2024 and 2.30am on 28 February 2024, FT attended a residential address in Wonthaggi and gained entry to the house unlawfully through the rear door. He allegedly located the keys of a white 2015 Mazda which was parked in the driveway and then stole the vehicle. The victims were home at the time.
At approximately 2.30am on 28 February 2024, it is alleged FT attended the Bass Ampol service station in the stolen Mazda. A person believed by police to be FT was captured on closed-circuit television footage filling the stolen vehicle with $81.91 worth of fuel and then leaving the service station in the vehicle without making any attempt at payment.
Later that morning, at approximately 7.50am, the stolen Mazda collided with a Ford Ranger at an intersection on Elizabeth Street in Dalyston. The collision caused significant damage to both the front and rear passenger doors of the left side of the Ranger. The driver of the damaged vehicle observed 2 young males in the front driver and passenger seats of the stolen Mazda. The pair drove away, leaving the scene of the accident without stopping.
At approximately 8.06am, Acting Sergeant Nathan Davis observed the stolen Mazda at the intersection of Apple Berry Rise and Carbine Street in Wonthaggi. FT was known to this police officer, who identified FT as the driver of the vehicle.
At approximately 8.30am, FT allegedly attended the Bass Ampol service station again. FT was allegedly captured on closed-circuit television footage filling up the stolen vehicle with $65.26 worth of fuel and again leaving the service station without paying.
At 10.00am on the morning of 28 February 2024, the stolen Mazda was located in Daly Street in Dalyston. A short time later, FT and 2 others were arrested in the Dalyston area. FT was transferred to the Wonthaggi Police Station for interview. Investigators also seized video footage found on the telephone of another young person arrested in relation to the incident. The videos depict a person believed by police to be FT driving the stolen Mazda in the Wonthaggi and Dalyston areas.
B.2 Other outstanding charges
At the time of the alleged offending, FT was on bail in respect of the following charges arising out of the events alleged to have occurred on 23 January 2024:
(1)Reckless conduct placing a person in danger of death, contrary to section 22 of the Crimes Act.
(2)Causing serious injury intentionally, contrary to section 16 of the Crimes Act.
(3)Failure to report to police whereby a person was injured, contrary to section 61(1)(e) of the Road Safety Act.
(4)Theft of a motor vehicle, contrary to section 74 of the Crimes Act.
(5)Committing an indictable offence whilst on bail, contrary to section 30B of the Bail Act.[5]
[5]See fn 3 above.
FT’s older brother was 1 of 5 co-accused charged in relation to these events. The alleged offending involved deliberately hitting 2 cyclists with a stolen vehicle on Beach Road in Mentone, though FT was only charged in relation to the first of these collisions.[6] As noted above, FT was granted bail in respect of these charges. This occurred on 12 February 2024 at the Children’s Court.
[6]See par 1 above.
At the time of the alleged offending the subject of this application, FT was also on bail granted by police in respect of the following charges:
(1)Theft committed on 7 October 2023, contrary to section 74 of the Crimes Act.
(2)Theft of a motor vehicle committed on 7 January 2024, contrary to section 74 of the Crimes Act.
(3)Destroying or damaging property committed on 7 January 2024, contrary to section 197 of the Crimes Act.
(4)Two charges of committing an indictable offence on 7 January 2024, contrary to section 30B of the Bail Act.[7]
[7]See fn 3 above.
In addition, FT was the subject of a summons in relation to the following charges:
(1)Handling stolen goods on 3 July 2023, contrary to section 88 of the Crimes Act, and dealing with proceeds of crime on 3 July 2023, contrary to section 194 of the Crimes Act.[8]
(2)Theft committed on 25 November 2023, contrary to section 74 of the Crimes Act.
[8]The prosecution informed the court that this matter would be withdrawn on the next court date, as the prosecution accepted that it was unable to rebut the presumption of doli incapax.
FT was also the subject of a summons in relation to 7 further charges:
(1)Theft committed on 24 November 2023, contrary to section 74 of the Crimes Act.
(2)Handling stolen goods between 24 and 27 November 2023, contrary to section 88 of the Crimes Act.
(3)Interfering with a motor vehicle on 27 November 2023, contrary to section 70 of the Road Safety Act.
(4)Theft of a motor vehicle committed on 27 November 2023, contrary to section 74 of the Crimes Act.
(5)Three charges of obtaining property by deception on 28 November 2023, contrary to section 81 of the Crimes Act.
Thus, in broad summary, the alleged events leading up to 29 February 2024 are as follows:
DATE
ALLEGED EVENT
OTHER MATTERS[9]
3 July 2023
Stolen goods
To be withdrawn[10]
27 October 2023
Stolen goods
Shoplifting alcohol
24 November 2023
Stolen credit card
$150.75 transaction
25 November 2023
Stolen goods
Shoplifting alcohol
27 November 2023
Stolen vehicle
Car rolled and severely damaged
7 January 2024
Criminal damage
Grandmother’s front door
Stolen vehicle
BAIL GRANTED
23 January 2024
Stolen vehicle
Cyclist run down
FT is alleged to have said “Hit him, hit him, hit him”; reckless conduct; causing serious injury intentionally
2 February 2024
Arrested, charged and remanded in custody
12 February 2024
BAIL GRANTED
28 February 2024
Stolen vehicle
Stolen petrol (x2)
Hit and run
Aggravated burglary
[9]The other matters are not exhaustive and are only a general summary.
[10]See fn 8 above.
While the outstanding charges against FT are numerous, FT has no criminal history.
B.3 FT’s personal circumstances
When FT was 6 years old, his parents relinquished custody of him. FT was subsequently placed in foster care. In May 2023, following an altercation between FT and his foster mother, FT’s foster parents formed the view that they could no longer control FT and his increasingly aggressive behaviours. It was around this time that FT became known to police.
FT was subsequently placed in the custody of the Secretary to the Department of Families, Fairness and Housing (“the Secretary”) under a “care by Secretary order” made in September 2023.[11] He remains in the care of the Secretary.
[11]Children, Youth and Families Act, s 289.
In June 2023, FT was placed in a residential care unit (“the Residential Care Unit”), overseen by the Department of Families, Fairness and Housing (“the Department”) and managed by a private care provider (“the Care Provider”). Between 31 May 2023 and 27 February 2024, FT was reported by case workers at the Department as a missing person on 46 occasions. On certain occasions, absconding from his residential care facility was in breach of previous conditions of bail. Since residing at the Residential Care Unit, FT’s case manager has reported to police that FT has refused to follow care workers’ directions, including directions to attend school. Indeed, when granted bail on 12 February 2024 subject to conditions that included he attend school, he failed to do so the very next day on the basis that he had slept in.[12]
[12]See further par 27 below.
On 7 March 2024, FT’s mother visited FT and his brother in custody at the Melbourne Youth Justice Centre in Parkville and expressed concern about the apparent lack of remorse displayed by FT. This followed comments allegedly made by FT and his brother to the effect that as soon as they were released from custody, they would continue to steal cars. FT’s mother relayed her concerns to FT’s case manager. The following day, FT’s case manager informed police of these concerns. Although this evidence was second hand or more remote hearsay, FT’s counsel indicated that the evidence was not challenged (albeit, it was submitted it should be given no weight as the circumstances in which it was alleged to have been said were unknown and there was “no way to clarify that evidence”).[13]
[13]The case manager was available to be cross-examined by FT’s counsel. This opportunity was not taken, as there was no controversy that the care worker’s account accurately conveyed the substance of what she had been told by FT’s mother.
FT has been diagnosed with autism spectrum disorder and is the recipient of a National Disability Insurance Scheme plan, which includes behaviour specialist support, occupational therapy and speech therapy.[14] FT has also been diagnosed with attention deficit hyperactivity disorder and is prescribed medication which he is required to take daily. His carers have reported that when FT absconds for several days at a time, he presents as dysregulated and “heightened” for some time upon his return. FT has reported to Youth Justice staff that when he is not medicated, he feels like he is “bouncing off the walls” and prefers being on his medication.
[14]More recently, issues have arisen in relation to the funding to be provided by the National Disability Insurance Agency.
FT also suffers from post-traumatic stress disorder.
B.4 Report from Youth Justice
For the hearing on 21 March 2024, the court was assisted by a Youth Justice bail service report dated 4 March 2024 prepared by Sheena Smit (“Smit”), court advice and response worker at Youth Justice. The court also had before it an earlier report dated 9 February 2024, a progress report dated 16 February 2024, and an addendum to the most recent report dated 15 March 2024 which were prepared in support of FT’s initial application for bail. Smit also attended the hearing on 21 March 2024 to give evidence.
As at 21 March 2024, Youth Justice assessed FT as a suitable candidate for supervised bail. FT was previously subject to Youth Justice supervised bail prior to being remanded in custody on 28 February 2024.
In terms of FT’s schooling, Smit explained that FT was enrolled in Year 8 at a local high school near to the Residential Care Unit. FT attended the first 3 days of school this year, however, did not otherwise attend prior to being remanded in custody on 2 February 2024. Upon being released from custody on 12 February 2024, FT was identified as a suitable candidate for the Flexible Learning Options program at his local high school, which provides flexible learning on a reduced class schedule of 1 to 2 hours, 3 days per week.
As at 21 March 2024, FT has only attended the flexible learning program once, on 27 February 2024. Smit gave evidence that there were difficulties with FT’s schooling the last time he was on bail because he was swapping campuses. She stated that FT’s new timetable had not been implemented at the time he was again placed into custody. FT expressed a desire to attend more frequently if again released on bail. After being released on 21 March 2024, FT attended school on the 2 occasions he was required to do so.
FT disclosed that prior to being remanded in custody, he smoked cannabis approximately 4 days per week. He reported that this was a relatively new habit. FT also disclosed some alcohol use approximately once per week and 1 instance of use of methylamphetamine. Youth Justice assessed that drug and alcohol interventions would be able to occur as a part of supervised bail.
The Youth Justice report set out a combination of proposed services to address FT’s risk profile. This was expressed as a monthly schedule commencing on 21 March 2024. The proposed schedule included:
(1)Youth Justice supervised bail meetings on Mondays and Wednesdays, and Fridays as needed.
(2)Boxing classes on Monday and Wednesday evenings.
(3)Flexible Learning Options schooling program on Tuesdays, Thursdays and Fridays.
(4)Soccer training on Thursday afternoons.
(5)Numerous specialist appointments.
In addition, Youth Justice intended to make referrals to psycho-social programs offered by Caraniche Forensic Health Services and the Youth Support Advocacy Service as needed.
The Youth Justice bail service report did not propose any services for FT on weekends. At the hearing on 21 March 2024, it was noted that the school holidays were imminent. However, Smit explained that there were activities planned for non-school days, which were to be overseen by the Care Provider.
The addendum to the report noted that FT had been involved in multiple incidents between 8 and 11 March 2024 whilst on remand, predominantly relating to FT being aggressive towards unit staff and spitting at staff. Since his remand, FT’s occupational therapist and speech pathologist have commenced regular visits on FT in custody to progress capacity assessments. It was noted in the addendum that concerns have been raised in relation to FT’s cognitive abilities and specifically in relation to his language skills. The court was informed that FT’s care team are in the process of exploring this issue further to ensure appropriate assessments are sought and that FT is provided with adequate support.
The report noted that FT was only on supervised bail for approximately 2 weeks at the time of the alleged offending on 28 February 2024, and he had not been provided with the opportunity to benefit fully from Youth Justice intervention and the structured bail plan. It assessed that a further period of supervised bail would allow for FT’s care team to fully implement the identified plan of supports aimed at addressing FT’s areas of need and mitigating risk. Smit confirmed both this position and this assessment when giving evidence.
In support of FT’s application for bail, on 21 March 2024 Youth Justice recommended the following conditions of bail, namely that FT must:
(1)Attend and comply with all directives of the Youth Justice bail service.
(2)Comply with a curfew between the hours of 8.00pm and 6.00am each day.
(3)Not associate with any co-offenders.
C. Legal principles
FT is a child.[15] The Bail Act applies to his application for bail, except insofar as it is inconsistent with section 346 of the Children, Youth and Families Act 2005 (Vic).[16]
[15]Pursuant to s 3 of the Bail Act, “child” has the same meaning as the definition found in the Children, Youth and Families Act. In the case of a person who is alleged to have committed an offence, a child is defined as a person who at the time of the alleged commission of the offence was under the age of 18 years, but of or above the age of 10 years: see Children, Youth and Families Act, s 3.
[16]Children, Youth and Families Act, s 346(6).
In determining an application for bail in respect of a child, at the time the application was made on 21 March 2024 the court was required to take into account the matters listed in section 3B(1) of the Bail Act as it then stood, including:
…
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
In making a determination in relation to a child, bail must not be refused on the sole ground that the child does not have any, or any adequate, accommodation.[17] The court may also take into account any recommendation or information in a report provided by a bail support service.[18] Further, if bail is refused, the court must remand the child in custody to appear before a court at a later date which must not be for a period longer than 21 clear days.[19]
[17]Bail Act, s 3B(3).
[18]Ibid, s 3B(2).
[19]Ibid, s 12(4)(a).
FT has been charged with a Schedule 2 offence whilst on bail for another Schedule 2 offence.[20] It was common ground that he must therefore demonstrate that exceptional circumstances exist to justify the grant of bail.[21]
[20]Namely, 1 charge of aggravated burglary whilst on bail for 1 charge of causing serious injury intentionally, amongst other charges: see Bail Act, sch 2, items 6, 22(b).
[21]Bail Act, ss 4AA(2)(c)(i), 4A(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must be such as to take the case out of the normal and justify the granting of bail.[22] However, as outlined in Re JO,[23] an applicant’s status as a child will weigh heavily in favour of establishing such circumstances as children applying for bail are afforded a special status.[24]
[22]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[23][2018] VSC 438.
[24]Ibid, [14] (T Forrest J). In relation to children seeking bail on the basis of exceptional circumstances see also: Re PJ [2024] VSC 97 (Incerti J); Re GA [2022] VSC 148 (Fox J); Re AM [2020] VSC 569 (Tinney J); Re TP [2018] VSC 748 (Champion J).
If the court is satisfied that exceptional circumstances exist, it must then consider whether the applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act. In assessing the risk, the court must take into account whether there are conditions of bail that may be imposed to mitigate the risk.[25]
[25]Bail Act, s 4E(3)(b).
Bail must be refused if the court is satisfied that there is an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act, notwithstanding that the exceptional circumstances test has been met. The burden of proving that the applicant poses an unacceptable risk rests with the prosecution.[26]
[26]Ibid, s 4E(2).
The notion of unacceptable risk does not concern merely any risk of reoffending. Rather, the question is whether such a risk is unacceptable.[27] In HA v The Queen,[28] the Court of Appeal observed that where the period of time on remand would likely exceed the sentence ultimately imposed, such a factor is of particular significance to the determination of whether both the exceptional circumstances and unacceptable risk tests are made out.[29]
[27]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[28][2021] VSCA 64.
[29]Ibid, [63]-[64] (Maxwell P and Kaye JA).
Both in considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[30] As at 21 March 2024, such surrounding circumstances were prescribed to include, but not be limited to, the matters listed in section 3AAA(1) of the Bail Act as it then stood, namely:
[30]Bail Act, ss 4A(3), 4E(3)(a).
…
(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 … 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;
…
In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[31]
[31]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
D. Submissions
In support of a grant of bail, it was submitted on behalf of FT at the hearing on 21 March 2024 that exceptional circumstances were established by the combined weight of several factors, including his status as a child, his lack of criminal record, the expected delay in the proceeding and the support of Youth Justice.
It was also submitted that it would be possible to sufficiently mitigate any risk associated with a grant of bail by the imposition of appropriate conditions of bail, namely that FT must:
(1)Reside at [the Residential Care Unit].[32]
(2)Remain at the Residential Care Unit between the hours of 9.00pm and 6.00am each day (“the Curfew Hours”) for the duration of bail, unless in the company of an approved delegate of Youth Justice, the Care Provider or the National Disability Insurance Scheme.
(3)Present himself at the front door of the Residential Care Unit during the Curfew Hours if and when called upon by a member of Victoria Police to do so.
(4)Comply with all directives of the Youth Justice supervised bail service.
(5)Not associate with any co-accused (except where approved by Child Protection or the Care Provider in the case of his brother).
(6)Not drive a motor vehicle.
[32]There were 2 facilities available, which were both located in the same region of Victoria.
In response, the prosecution conceded that exceptional circumstances had been established. Further, it was accepted that the submission concerning delay was available to FT, given the nature of the offending and his age.
However, it was submitted that FT presented an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail, or both.[33] In this regard, reference was made to: the “very serious” allegations made concerning the use of stolen vehicles and the failure to stop and render assistance, together with the filming and sharing of the offending activities on social media; the previous breaches of bail; and the active intervention orders and family violence matters involving FT’s foster parents and his biological grandparents. Also, while it was accepted that FT was a suitable candidate for Youth Justice supervised bail, the prosecution relied upon the fact that FT had already been the subject of supervised bail and that had failed to prevent further reoffending.
E. Consideration as at 21 March 2024
[33]Referring to s 4E(1)(a)(i) and (ii) as it then stood.
E.1 Exceptional circumstances
FT has discharged his onus of establishing exceptional circumstances for the reasons contended. The prosecution correctly conceded this issue.
E.2 Unacceptable risk
At the 21 March 2024 hearing, it was determined that although FT posed an obvious risk, that risk would not be unacceptable if bail were only granted for 1 week on stringent conditions.[34] Noting the importance of the right to liberty and the general desire to avoid making the bail process unduly burdensome on applicants and the courts, bail for a period of 7 days was appropriate in the circumstances of this case to allow for further arrangements to be made by FT’s care team and for FT to undergo further assessments which had been the subject of evidence on 21 March 2024.[35] Strict bail conditions, including the requirement that FT not leave his residential care facility unless in the company of an approved delegate of Youth Justice or the Care Provider, were proposed to enable the release of FT from custody whilst these further arrangements and assessments were progressed. It was anticipated that, assuming FT complied with the conditions of bail during the 7 day period, any future grant of bail would be on less stringent conditions.
[34]See Re KA (No 2) [2022] VSC 363, [12] (Beach JA), citing Beljajev v Director of Public Prosecutions (Unreported, Full Court of Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[35]See pars 33-34 above.
The following conditions were agreed to by FT at the hearing on 21 March 2024 and were also the subject of an undertaking on his behalf by his case manager (being the principal person responsible for his care on behalf of the Care Provider):[36]
[36]Bail Act, s 16B.
(1)Reside at the residential care facility operated by the Care Provider (“the Residence”).
(2)Remain at the Residence between the hours of 7.00pm and 7.00am each day (“the Curfew Hours”) for the duration of bail, unless in the company of an approved delegate of Youth Justice.
(3)Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.
(4)Comply with all lawful directions of the Youth Justice supervised bail service, including attending:
(a)Activities with [the Care Provider], at the places and times specified, on Saturday, 23 March 2024, Sunday, 24 March 2024 and Tuesday, 26 March 2024.
(b)Boxing classes at [address] at 5.00pm to 7.00pm on Monday, 25 March 2024 and Wednesday, 27 March 2024.
(c)Meetings with an approved delegate or delegates of Youth Justice at the Residence at 1.00pm on Monday, 25 March 2024 and Wednesday, 27 March 2024.
(5)Attend [name of school] between the hours of 1.30pm and 2.30pm on Friday, 22 March 2024 and Monday, 25 March 2024, and participate in the Flexible Learning Options … program.
(6)Subject to subparagraphs (4) and (5) above, not leave the Residence outside Curfew Hours unless in the company of an approved delegate of Youth Justice or [the Care Provider] at the time of departure and at all times until returning to the Residence.
(7)Not drive a motor vehicle.
(8)Not be present in any stolen motor vehicle.
(9)Abstain from consuming any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), without lawful authorisation under that Act.
(10)Not contact, directly or indirectly, any witness for the prosecution other than the informant.
(11)Not contact, directly or indirectly, his co-accused, namely:
(a)[names of co-accused].
(12)Appear remotely before this court for judicial monitoring to review his compliance with these orders at 4.00pm on Monday, 25 March 2024, and any further dates this court appoints during the course of these orders.
(13)Attend the Supreme Court of Victoria at Melbourne at 10.00am on Thursday, 28 March 2024, and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
These conditions were agreed to and the undertaking was given as sought. In brief oral reasons given on 21 March 2024, it was stated that the risk posed by granting FT bail was not unacceptable for the 1 week period in circumstances where he was not permitted to leave the Residence other than in the company of a carer. While it was acknowledged that a carer did not have the legal ability to restrain FT if he chose to leave the Residence without permission, an undertaking was given by FT’s case manager on behalf of the Care Provider (who supervised FT 24 hours per day) to notify police immediately if there was any breach by FT of any of the conditions of bail.
Both FT’s counsel and FT himself informed the court that FT understood the conditions of bail and would comply with them. Further, FT was warned that if he failed to comply with the conditions of bail, it may well be his last chance to avoid being sent back to the Melbourne Youth Justice Centre in Parkville.
F. Bail monitoring hearing on 25 March 2024
In accordance with the conditions of bail, FT attended this court by video link at 4.00pm last Monday, 25 March 2024. An affidavit was filed that afternoon containing a report that staff of the Care Provider had reported a breach of bail at 11.20pm the previous evening. In short, FT was observed outside the front door of the Residence[37] using cannabis along with the only other young person residing at that location. During the bail monitoring hearing, the court was informed by the prosecution that, despite this obvious breach, there would be no application to revoke bail at that time and that any issues arising out of the events of the previous evening could be addressed on the return of the bail application on 28 March 2024.
[37]Being the first of the 2 locations at which FT resided in the previous week before being taken into custody again.
As a result of the position taken by the prosecution with respect to this incident, no further details were sought as to how it was that FT was able to get access to cannabis while at the Residence. However, FT’s counsel informed the court that FT acknowledged his consumption of cannabis the night before. FT again stated he understood the importance of complying with the conditions of bail.
Further information has since come to light in relation to the circumstances in which FT chose to use a drug of dependence contrary to the conditions of bail. A carer witnessed FT assisting the other resident in the manufacture of a bong. Both of them were instructed to desist, however, they ignored that instruction and proceeded to take the further steps necessary to enable them to smoke cannabis.
G. Further hearing on 28 March 2024
Bail was only granted on 21 March 2024 up to 10.00am today. FT again applied for bail based on the evidence tendered at the previous hearing and further evidence adduced today, to which I will refer to below.
G.1 Legislative amendments and related submissions
Before turning to the further evidence, there were amendments to the Bail Act which came into force on 25 March 2024. The amendments apply to any application for bail made on or after 25 March 2024, regardless of when the alleged offence (or offences) the subject of the application was committed.[38] As this application was made at the hearing today on 28 March 2024, it has been determined by reference to the Bail Act as amended.
[38]Bail Act, s 34(22).
Relevantly, the changes to the legislation included additions and amendments to the non-exhaustive list of surrounding circumstances in section 3AAA, namely:
…
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment
…
(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
(iiia) was on remand for another offence; or
(iiib) was at large awaiting sentence 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;
…
(h) any special vulnerability of the accused, including—
(i)being an Aboriginal person; or
(ii) being a child; or
(iii) experiencing any ill health, including mental illness; or
(iv) having a disability, including physical disability, intellectual disability and cognitive impairment;
…
The amendments also expand the issues that the court is required to take into account when making a determination in relation to a child. Pursuant to section 3B(1) of the Bail Act, these issues now include:
…
(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 overrepresentation 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.
At the hearing on 28 March 2024, FT relied on each of these matters, and in particular those set out in paragraphs (a), (b), (h), (k) and (l) (the subject matter of each had largely already been addressed in earlier submissions). It was submitted on behalf of FT that, considered through the lens of the matters now identified in section 3B, the matters expressly identified in that section should be given a greater level of weight than perhaps they were so in previous iterations of the Bail Act.
FT’s counsel focused on section 3B(1)(h) in particular and the risks identified for children in custody, and submitted that the court had heard cogent evidence concerning these risks. Accordingly, it was submitted this factor should be given substantial weight.
It was submitted further that there was an over-criminalisation of those caught in foster care, residential care and child protection. These considerations were submitted to loom large for FT.
As for the most recent offence alleged to have been committed during the early hours of 27 March 2024, it was submitted that as FT was not the driver of the car said to have been stolen, this further charge did not alter the assessment of the likely sentence if all the matters were ultimately dealt with by way of a plea. FT relied upon the absence of evidence of what exactly took place in the car, what FT’s role was, whether he was complicit or whether he knew the vehicle was stolen. It was subsequently clarified that it was not being submitted that there was anything other than a strong case against FT and that FT knew when he left the Residence that he was getting into a stolen car.
It was also submitted that there was no evidence “of any actual risk to any person beyond speculation with reference to speed”.
In addition, the following passage from the second reading speech of the Bail Amendment Bill 2023 (Vic) was relied upon:[39]
Child bail reforms
The increased diversionary focus articulated in the 2022 Youth Diversion Statement has significantly reduced unnecessary remand of accused children and young people. However, some children and young people are still being remanded for committing minor offences, particularly while on bail. A differentiated approach to child bail is necessary to address the unique vulnerabilities and complex disadvantages that children and young people can face. Keeping children out of custody and in the community will encourage them to retain pro-social connections, leading to improved individual outcomes and enhanced community safety in the long term.
[39]Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2023, 2899.6 (Anthony Carbines, Minister for Police, Minister for Crime Prevention, Minister for Racing). It is noted that the Bail Amendment Bill 2023 as first introduced contained a separate bail regime for children which ultimately was not adopted in the Bail Amendment Act 2023.
In summary, it was submitted that the new iteration of section 3B militated strongly towards a further grant of bail as this case presented a good opportunity to apply a number of newly identified matters. It was submitted these matters were highly significant and relevant to the position of a vulnerable child, particularly in light of the evidence concerning FT’s responsiveness to treatment.
Separately, as a result of the amendments, the first 2 categories of unacceptable risk pursuant to section 4E(1) of the Bail Act have been combined and amended as follows:
(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—
(a)there is a risk that the accused would, if released on bail—
(i) endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or
…
G.2 More recent events
Regrettably, notwithstanding the very restrictive conditions that were put in place and the personal assurances given to the court by FT himself, FT has chosen to flout the conditions of bail by leaving the Residence without approval at approximately 12.40am on 27 March 2024. There was no suggestion that FT was not fully aware that he was breaching his bail conditions when he engaged in this serious misconduct.
As a result, FT is now in custody. Further, not only has FT consciously chosen to breach the conditions of bail yet again, but it is alleged that he willingly entered another stolen vehicle and then travelled in that vehicle in very dangerous circumstances.
To elaborate, at approximately 12.52am yesterday, the alleged stolen vehicle was observed by police on the South Gippsland Highway in Tooradin. The vehicle was followed by police and was estimated to be travelling at speeds in excess of 150 kilometres per hour through the south eastern suburbs of Melbourne. Traffic spikes were deployed by police on the Nepean Highway in Cheltenham. The vehicle came to a forced stop on Station Street in Cheltenham shortly thereafter.
Five persons were observed running from the vehicle. FT and 3 other co-accused were arrested a short time later, while a further co-accused was seen running from the vehicle but was subsequently unable to be located by police. In what appears to be yet another breach of bail, an alleged occupant of the stolen vehicle is a co-accused specified in the conditions of bail as being a person with whom FT was not to have any direct or indirect contact.
Thus the intention of FT, as apparently stated to his mother while previously in custody,[40] to use the opportunity of being on bail in the future to abscond and steal, and then illegally drive or travel in another vehicle, appears to have largely come to pass.
[40]See par 22 above. See also s 8(1)(aa) of the Bail Act and fn 46 below.
G.3 Further evidence concerning FT’s compliance and ongoing care
In a report from the Care Provider, it was noted that there had been “multiple instances” of alleged non-compliance with the conditions of bail. The report referred to the circumstances involving the consumption of cannabis on 24 March 2024. Further, FT failed to attend a boxing lesson he was scheduled to attend, though this was put down to the fault of a carer rather than that of FT. Finally, reference was made to FT leaving the Residence at approximately 12.30 yesterday morning and being witnessed entering a “black Mercedes-Benz driven by another individual [that] left the area at a high rate of speed”.
The continuous breaching of the conditions of bail by FT is ongoing. FT was required to attend court today, but refused to do so.[41] As a result of this refusal, a video link was then arranged to facilitate FT’s remote appearance. However, FT also initially refused to participate by this means. Ultimately, after the matter was stood down so that FT’s counsel could speak with him, FT belatedly attended by video link for part of the hearing.
[41]See also s 5(1A) of the Bail Act.
The case manager allocated to FT by the Care Provider gave evidence in court today. She has been involved in providing care to FT in the past. Her evidence was that FT was more respectful and far more engaged in the last week than he had been previously. She said that FT had a better understanding of the bail conditions and was definitely taking them seriously. She suggested this had been demonstrated by the fact that he had attended various meetings and engaged in various activities as required. She noted that FT had seen a psychologist for a cognitive assessment and had been compliant with taking his medication.
However, she stated that FT had experienced difficulties with an older resident who swore and screamed a lot, which had resulted in him struggling and then being relocated to his original residence on the Tuesday of this week. She suggested that the older resident’s presence had resulted in FT feeling overwhelmed and had helped to explain FT’s involvement in the use of cannabis. FT has expressed his regret in smoking cannabis and she believed he was remorseful. She explained that since FT had been returned to the original residence, he had the benefit of sharing the facility with another young person (until he absconded). FT had a pre-existing relationship with this resident, who the case manager described as an excellent role model. In the circumstances, she was supportive of FT being granted bail for a further period.
Youth Justice provided a further report yesterday, prepared by Smit. That report noted FT had attended 2 supervision sessions with Youth Justice, in addition to attending school on both 22 and 25 March 2024. It was stated that FT had actively engaged in identified activities with carers. After referring to the matters set out above concerning FT’s breach of bail by smoking cannabis on 24 March 2024, it was stated that FT had been contacted on Tuesday evening by peers via social media. Those young persons shared images of them engaging in alleged offending and encouraged FT to join them, which it appears he duly did as soon as they arrived at the Residence on 27 March 2024.
It was recommended that if bail were further extended, that it be a condition that FT not access social media as a further measure to mitigate the risk of FT engaging in high-risk behaviour. This was also the position adopted by the Care Provider, however the case manager’s evidence did not rise any higher than the Care Provider would support such a condition “to the best of our ability”. Thus, there was no evidence to indicate prevention of access to social media would be achieved. Although it could not be doubted that best efforts would be used to prevent such access, in a residence where other young persons are located, the risk clearly remained that FT would have access to social media. Thus it is likely FT would also be exposed to peer group pressure by which, the case manager acknowledged, he was “easily” influenced.[42]
[42]Smit’s evidence was that he was “very easily" influenced.
Smit also gave evidence today, and similarly conveyed that FT had been engaging really well. Smit explained that FT presented with a high level of anxiety concerning the conditions of bail and what would occur if he breached them.
Smit gave evidence of FT’s assessment and acceptance for psycho-social sessions with a youth forensic service provider. She said the referral could still progress and the same service could be provided regardless of whether he was on bail or on remand, though there would be some delay in the latter scenario as a different clinician would need to be allocated. She referred to the possibility of FT being the subject of an intensive bail program. She explained that such a program would look very similar to what was already being provided to FT.[43] Her evidence was that Youth Justice would continue to support FT if bail were granted.
[43]See Re PJ [2024] VSC 97, [38]-[40] (Incerti J).
G.4 Further submissions
Save for the submissions made on behalf of FT in relation to the amendments to the Bail Act, the submissions were largely a repetition of those made on the previous application. It was submitted on behalf of FT that his non-compliance with the most recent conditions of bail ought to be seen in the broader context, including his progress in complying with a substantial number of the conditions imposed upon him. In relation to his failure to attend court, it was submitted this should be seen in the context of his age and vulnerability, together with the anxiety that he was experiencing as a result of having returned to the Melbourne Youth Justice Centre in Parkville.
The prosecution maintained its submission that FT posed as an unacceptable risk, particularly in light of the most recent breaches of bail and the inability of existing measures to prevent FT from failing to comply yet again.
H. Consideration of application for further grant of bail
Having considered all the relevant circumstances, including the surrounding circumstances in section 3AAA (as amended) and the matters specified in section 3B(1) (as amended), I am again satisfied that exceptional circumstances exist. However, I am also satisfied that the prosecution has established that FT poses an unacceptable risk of endangering the safety or welfare of others such that the application for a further grant of bail must be refused. Without being exhaustive, there are numerous matters that give rise to this conclusion.
Notwithstanding factors including FT’s young age, vulnerabilities and lack of criminal history, I do not accept the submission made on behalf of FT that it is unlikely FT will receive a term of imprisonment if he is found guilty of the more serious offences with which he has been charged. I also reject the contention that there is no evidence that the most recent alleged misconduct gave rise to any risk of endangering the safety or welfare of others in the community. The nature and seriousness of the alleged offending is extremely concerning. Each time a child steals and drives a car, that child is putting everyone in the vicinity of that vehicle in grave danger of serious injury, if not death. This danger is highly likely to be elevated even further when a group of children collectively decide to engage in such activities. Serious injuries have already occurred in relation to some of the alleged offending. It is only good fortune that there have not been other serious injuries or deaths. If FT is found guilty of repeatedly engaging in this conduct of his own volition and without any sense of guilt or remorse (as appears to be his present state of mind), then it may be expected that he will face a sentence involving incarceration for a not insignificant period of time.[44]
[44]See also Children, Youth and Families Act, ss 362, 362A and 362B.
It is estimated that the period of delay in the matter proceeding to hearing is in the order of 6 to 9 months. Mindful of the observations in HA v The Queen,[45] for the reasons stated in the preceding paragraph, in my view the refusal of bail in the serious circumstances of this case could not be properly characterised as a form of preventative detention. Further, FT being held on remand for at least the next 21 days is a step taken as a last resort after repeated efforts to minimise FT’s involvement in the criminal justice system.
[45][2021] VSCA 64, [63]-[64] (Maxwell P and Kaye JA).
Furthermore, on the evidence presently before the court, the prosecution has a strong case. On more than 1 occasion, FT was seen or filmed either in or within the vicinity of the stolen vehicle in question on 28 February 2024. His alleged involvement is corroborated by the fact he is apparently willing to boast about such matters.[46]
[46]Although I accept the submission made on FT’s behalf about the inability to test the evidence of what is alleged to have been said by FT and his brother while in custody (see par 22 above), the uncontested evidence is before the court and is corroborated by the conduct of FT in allegedly repeatedly offending when released on bail (including at least most recently with alacrity).
While FT does not have a criminal history, the offending conduct has allegedly now been engaged in repeatedly over a period of months. The absence of a criminal history cannot equate to a right to obtain bail, even for a child, if refusal is otherwise mandated by the Bail Act because FT is an unacceptable risk and all reasonably possible attempts to alleviate that risk have failed.
With respect to non-compliance with conditions of earlier grants of bail, such non-compliance has been repeated if not incessant. From my own observations with respect to the events of the last week, it is difficult to form any view other than that FT has little, if any, regard to the seriousness of breaching conditions of bail. In short, it must be considered highly likely that if FT were granted bail again he would materially breach the conditions of bail almost immediately.
The history set out above shows that FT was both on bail for other offences and subject to summonses to answer for charges of other offences at the time of the further alleged offending on 27 March 2024. These matters are far from determinative, but also weigh in favour of the court being satisfied an unacceptable risk has been established.
It is without controversy that the personal circumstances, lack of home environment and background of FT are extremely unfortunate. This of itself has given rise to special vulnerabilities, which are exacerbated by FT's developmental delay and cognitive issues. In this regard, recent events have demonstrated a lack of maturity on the part of FT. However, the evidence, including exchanges that have taken place before me, indicate that FT properly understands the wrongful nature of his conduct.
It is noted that bail support services are available. However, it must be further noted that these bail support services have been available on previous occasions and have not resulted in any satisfactory outcome with respect to compliance. Indeed, despite the best efforts of bail support services and others, nothing has prevented serious breaches of conditions of bail on numerous occasions.
To reiterate, it has been demonstrated to a high degree of probability that FT poses an unacceptable risk of endangering the safety or welfare of other persons, including by committing offences, if he were to be granted bail again.
Despite being given repeated opportunities to address the very serious risk he poses to the community, FT has chosen not to take advantage of these opportunities. Unless the Secretary were to make an application to have FT the subject of bail conditions that included an inability for FT to depart from a secure facility, presently the unacceptable risk he poses compels the court to refuse bail.[47]
[47]Bail Act, s 4E(1).
Conclusion
For the reasons stated, the application for a further grant of bail previously granted on 21 March 2024 is refused.
Pursuant to section 12(4)(a) of the Bail Act, subject to further order, FT is remanded in custody to appear before the Children’s Court on 17 April 2024.