Re GA

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0066

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by GA

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2022
DATE OF JUDGMENT:	23 March 2022
CASE MAY BE CITED AS:	Re GA
MEDIUM NEUTRAL CITATION:	[2022] VSC 148

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CRIMINAL LAW – Application for bail – Applicant a 13 year old child – No prior convictions – Requirement to show exceptional circumstances – Whether applicant an unacceptable risk – Application opposed on grounds applicant is an unacceptable risk of committing an offence on bail and/or endangering the safety and welfare of any person – Exceptional circumstances established – Availability of supports – Applicant not an unacceptable risk if granted bail with conditions – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3B, 4AA, 4A, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D De Witt	Dowling McGregor Solicitors
For the Respondent	Mr N Watt	Victoria Police

HER HONOUR:

Introduction

This is an application for bail by GA on charges of burglary, theft of motor vehicle, reckless conduct endanger life, drive in manner dangerous, drive at speed dangerous, careless driving, unlicenced driving, enter intersection against red traffic light (two counts), handle stolen goods and commit an indictable offence whilst on bail. The applicant is 13 years old.

The alleged offending

On 28 February 2022 three males entered Anytime Fitness gym in Caulfield North and stole a number of car keys. They used one of the keys to steal a vehicle which was parked nearby. CCTV footage shows the applicant stealing the keys and entering the stolen vehicle.
At approximately 12:30am on 1 March 2022, police observed the stolen vehicle travelling in the Truganina area. The vehicle was travelling at high speed, and proceeded through a red light on two occasions. Police followed the vehicle for some distance, however lost sight of it near Sanctuary Lakes. There was only one entry and exit point into Sanctuary Lakes, and additional police were waiting with ‘stop sticks’ at the exit point. Police patrolled the area, and located the empty vehicle behind an apartment complex. They then observed the applicant nearby with his hands up. He was arrested and conveyed to Werribee Police Station for interview.
The applicant was charged by First Constable Marhad with the above listed charges and remanded in custody.
This matter, along with all of the applicant’s outstanding matters, is next listed for special mention on 5 April 2022 at Werribee Children’s Court.
Procedural history
The applicant was charged and remanded into custody on 1 March 2022. There was no application for bail at this time.
According to the applicant, on 15 March 2022, a bail application commenced in the Werribee Children’s Court. At the hearing, Youth Justice advised the court that they were not currently supportive of bail, and wished to undertake a full assessment of the applicant. The bail application, together with all outstanding matters, was adjourned to 5 April 2022.
According to the respondent, and consistent with the Children’s Court certified extract, no bail application was made on 15 March 2022. Ultimately nothing turns on this difference.
On 16 March 2022, the applicant filed an application for bail in this Court.
Outstanding matters
At the time of this alleged offending, the applicant was on bail in relation to seven matters, and charged on summons in relation to three matters.
Informant Senior Constable Hardie
On 6 March 2021 the applicant was charged with burglary, theft and theft of motor vehicle alleged to have occurred on 27 February 2021 (‘the Hardie matters’). The applicant is alleged to have attended an Anytime Fitness gym with a co-offender, stolen items including a car key, and then used the key to steal a car. He was granted bail on the condition he reside as directed by Child Protection, and not attend any gym where he is not a member.
Informant Senior Constable Christian
On 14 March 2021 the applicant was charged with burglary, theft and make threat to kill, alleged to have occurred the day prior (‘the Christian matters’). The applicant is alleged to have attended a SNAP fitness gym with a co-offender, and stolen items including a car key. They were chased and caught by the complainant and the applicant said he had a knife and threatened to kill the complainant. He then pushed a trolley at him, and said he did not have a knife. The applicant was granted bail on the condition that he reside as directed by Child Protection, and not attend any gym where he is not a member.
Informant Senior Constable Purkiss
On 24 March 2021 the applicant was charged with burglary, theft, commit an indictable offence whilst on bail and trespass (‘the Purkiss matters’). The applicant is alleged to have attended an Anytime Fitness gym with co-offenders and stolen a car key. He was arrested a short time later in a nearby street, charged and granted police bail.
Informant Senior Constable Dawson
On 31 March 2021 the applicant was charged with affray, theft, assault (two counts), handling stolen goods (three counts), dealing with property suspected to be the proceeds of crime (two counts) and commit an indictable offence whilst on bail. All offending is alleged to have occurred between 29 and 31 March 2021 (‘the Dawson matters’). The applicant, together with co-offenders, are alleged to have attended a store, attempted to steal kitchen knives, and then assaulted staff who tried to prevent them leaving. Police executed a search warrant at an address in Point Cook where the applicant was present, and located various items, including licences and a car key stolen from Anytime Fitness gym. The applicant spent one night in custody before being granted bail on 1 April 2021 at Melbourne Children’s Court.
Informant Senior Constable Wood
On 6 May 2021 the applicant was charged with burglary, theft, handle stolen goods and commit an indictable offence whilst on bail, alleged to have occurred on 4 April 2021 (‘the Wood matters’). The applicant is alleged to have attended an Anytime Fitness gym with a co-offender, stolen a wallet containing bank cards, and then used a stolen bank card to make two online purchases. He was remanded into custody on 6 May 2021, and granted Youth Justice supervised bail on 10 May 2021.
Informant Constable Jones
On 12 May 2021 the applicant was charged on summons with assault with a weapon and assault by kicking, alleged to have occurred one month earlier (‘the Jones matters’). It is alleged the applicant, together with co-offenders, rode their bicycles inside a Kmart store and were asked to leave by a security guard. The applicant attempted to kick the security guard, and then produced a knife and threatened to stab the guard.
Informant First Constable Coleman
On 24 July 2021 the applicant was charged on summons with burglary, theft and theft of motor vehicle alleged to have occurred on 30 January 2021 (‘the Coleman matters’). It is alleged the applicant attended an Anytime Fitness gym with a co-offender, stole a car key and then used the key to steal a car.
Informant Constable Virdi
On 21 October 2021 the applicant was charged on summons with two counts of shop theft alleged to have occurred on 25 and 26 April 2021 (‘the Virdi matters’). A warrant was issued as the informant was unable to serve the summons.
Informant Senior Constable Nesser
On 28 January 2022 the applicant was charged with theft of motor vehicle, reckless conduct endangering serious injury, dangerous driving whilst being pursued by police and fail to stop on police direction, alleged to have occurred on 27 and 28 January 2022 (‘the Nesser matters’). It is alleged the applicant, together with co-offenders, attended an Anytime Fitness gym, stole a set of keys and then used the keys to steal a car. The car was driven at dangerous speeds and tracked by the Police Air Wing. Multiple attempts were made to stop the vehicle, including using a tyre deflation device. The offenders continued to drive dangerously with deflated tyres, eventually dumping the vehicle and running away on foot. They were tracked by Police and arrested nearby. The applicant was remanded into custody. He was granted bail in this matter on 18 February 2022, with conditions including that he not drive a motor vehicle and not be present in any stolen vehicles.
The applicant then allegedly committed the offences for which he now applies for bail (‘the Marhad matters’).
Informant Senior Constable Singh
On 2 March 2022, whilst the applicant was on remand for the Marhad matters, he was charged on summons with theft of a motor vehicle alleged to have occurred on 17 January 2022 (‘the Singh matter’). It is alleged the applicant was the passenger in a stolen vehicle that was being driven at high speed in an attempt to avoid police interception. Police successfully deployed a tyre deflation device and the applicant and co-offenders were arrested nearby.
The co-accused
The alleged co-offenders in the Marhad matters are yet to be identified.
There have been various co-offenders in the other matters, ranging in age from 12 to 18 years. The co-offenders in the Nesser matters were aged 18, 16, 14 and 12. One 12 year old boy, PM, is a co-offender in the Dawson, Nesser, Singh and Coleman matters.
Tragically, two of the co-offenders in the Dawson matters died in an accident in a stolen vehicle in September 2021. A third was badly injured in the same accident, and remains in hospital. This underscores how dangerous and risky it is to drive or travel in stolen vehicles, and engage in the type of dangerous, high speed driving alleged here.
The applicable legislation
An offence against the Bail Act 1977 (‘the Act’) is a Schedule 2 offence.[1] The applicant has been charged with a Schedule 2 offence, namely committing an indictable offence whilst on bail, whilst on three sets of bail for the same Schedule 2 offence. It is common ground that the applicant must show exceptional circumstances that justify the grant of bail pursuant to s 4AA(2)(c)(i) of the Act.
[1]Bail Act 1977 (Vic), Schedule 2, Item 30.
I am required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act.
In considering whether exceptional circumstances exist, I must take into account the surrounding circumstances, including, but not limited to, the matters set out in s 3AAA(1) of the Act.
The applicant is a child and pursuant to s 3B I am required to take into account the following:
(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.
The Court may also consider any recommendation or information contained in a report by a bail support service.[2]
[2]Ibid, s 3B(2).
If satisfied to the requisite standard, the Court must then consider the unacceptable risk test.[3] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[4] In considering whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[5]
[3]Ibid, ss 4C(4), 4D(1)(b).
[4]Ibid, ss 4D(2)-(3), 4E(1)-(2).
[5]Ibid, s 4E(3).
The applicant’s personal circumstances
The applicant is 13 years old. His mother migrated to Australia from South Sudan, and the applicant was born in Sydney. His family moved to Melbourne when he was aged two.
The applicant has five brothers aged between 19 and 30 who were born in South Sudan. The applicant’s father resides in America, and he has only met him via video link.
The applicant resides with his mother in Tarneit, who works as a cleaner at the airport, and his 19 year old brother. In 2021 the applicant relocated to NSW to live with his older brother, however in December he decided to return to Melbourne without notifying his family. He was located shortly after, and returned to his mother in Tarneit.
The applicant has no prior criminal history. He is currently not enrolled in school.
The informant’s evidence
The informant gave limited evidence regarding the proposed address. The applicant’s brother has outstanding matters, including matters in the committal stream. The most recent alleged offending was in May 2021, and the majority of matters go back to 2020. The informant could not dispute that the applicant’s brother is now at University and working part-time in a warehouse. In late February 2022 the informant conducted two curfew checks, and the applicant was not at home.
Youth Justice
The applicant was first granted Youth Justice supervised bail on 10 May 2021. His progress was initially limited, as he went missing for ten days. However, once he returned to the family home, his engagement appeared to increase. In a Progress Report dated 17 June 2021, he remained suitable for a further period of supervised bail.
Hayden Bergman from Youth Justice gave evidence on the application. Overall, he said the applicant’s attendance and engagement with Youth Justice had been ‘fifty-fifty’. Youth Justice have maintained contact with the applicant’s mother, who is very accepting of all supports. The applicant’s brother is also an active support, engages positively with Youth Justice and has the applicant’s best interests at the forefront.
Mr Bergman spoke with the applicant earlier this week. The applicant expressed a willingness to engage, and had prepared a list of schools. His first choice is Tarneit P-9, but he had also listed alternatives if his first choice was not available. The applicant’s presentation has shifted and improved on remand, and there has been positive feedback from custody staff.
If bailed, Youth Justice would continue to work with the applicant. This would involve minimum weekly supervision; support in enrolling the applicant at Tarneit P-9 or another school; referral to the community support service, which would provide weekly supervision and support; and fortnightly care team meetings. Mr Deng, a community officer, would also work with the applicant. Any non-compliance would be actioned by Youth Justice, and the informant would be notified.
The applicant’s contentions
The applicant relies on a number of matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail, and that the applicant is not an unacceptable risk in the ways alleged.
Although it is conceded that there is a significant volume of like offending, the applicant submits that the charges themselves are low-level in terms of seriousness. The alleged offending is unsophisticated, and committed with other children.
A report by Dr Gina Cidoni dated 2 August 2021 opines that the applicant fits the presumption of doli incapax at the time of the alleged offending in the Hardie, Christian, Purkiss, Dawson and Wood matters.[6] Whilst Dr Cidoni did not expressly consider the Virdi, Jones or Coleman matters, those offences were also committed when the applicant was 12 years old. A further report has been sought from Dr Cidoni in relation to this matter and all other outstanding matters. The applicant is now 13 years old and the presumption of doli incapax will have to be rebutted on the Marhad matters. This will be an issue in the case, and the prosecution must prove beyond reasonable doubt that the applicant was capable of forming criminal intent.
[6]Exhibit AMG-3 of Affidavit in support, p 8.
Even absent doli incapax, there are triable issues between the parties. On the charge of reckless conduct endangering life, the prosecution must prove an ‘appreciable risk of death’, meaning more than a remote or mere possibility of death. There is no evidence that any other road user was present or placed in danger.
The applicant has no prior criminal history, although it is conceded that the applicant was subject to multiple counts of bail at the time of the alleged offending.
The applicant is 13 years old, and was aged 12 for the majority of the outstanding matters. It is submitted that significant weight should be placed on the factors set out in s 3B of the Act.
The applicant enjoys strong support from his mother and older brother, who are willing to assist the applicant to comply with all bail conditions. He wants to return to school, which is positive and should be encouraged.
The applicant submits that given his young age and low cognitive ability, as assessed by Dr Cidoni, he is particularly vulnerable in custody. He is also more susceptible to negative peer influences.
The applicant will be supported by Youth Justice on supervised bail. Youth Justice will advise the Informant of any non-compliance with bail conditions, and the Court can have confidence that any breach will be swiftly notified to the Informant.
Child Protection were previously involved with the applicant and his family, including on occasions when the applicant had gone missing. Child Protection have filed a further Protection Application listed on 29 March 2022. This application is supported by the applicant’s mother, and Child Protection will continue to work with the family.
The applicant submits there will be significant delay in listing this matter for a contested hearing. Contests are currently being listed for November 2022. The applicant further contends that if he is found guilty of the alleged offending, he is very unlikely to serve a term of imprisonment in light of his age and lack of criminal history.
COVID-19 has made conditions in custody more difficult for the applicant. He was isolated for a 14-day period, and has been unable to receive personal visits from his mother or brother.
The applicant submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including supervision by Youth Justice.
The respondent’s contentions
The respondent concedes that it is open to the Court to find that exceptional circumstances exist that justify the grant of bail. However, the application for bail is opposed on the basis that the applicant poses an unacceptable risk of endangering the safety or welfare of any person and committing an offence whilst on bail.
The respondent submits that driving at high speed in suburban areas is inherently dangerous and poses a risk of serious injury or death to the community, regardless of the time of day that the alleged offending occurred.
The respondent recognises that the applicant does not have any prior convictions for non-compliance with bail conditions. However, he has shown disregard for court imposed bail as he was not compliant with his conditions of curfew, residence, non-association and not to attend a gym at the time of his remand.
The respondent accepts that the applicant has family support and accommodation, however submits there are concerns over the family’s capacity to control the applicant’s behaviour, given what has occurred in the past.

The respondent highlights that the applicant was subject to Youth Justice supervised bail at the time of the alleged offending, and holds concern that this supervision is not sufficient in preventing the applicant from further offending.
It is submitted that the applicant has a history of serious, victim-based offending and has demonstrated himself to be a risk to the safety and welfare of the public. The respondent asserts that the applicant drove at high speed and in a dangerous manner, and that he will continue to pose a risk to the public if he were granted bail.
As the applicant was on stringent bail conditions at the time of the alleged offending, the respondent is of the view that any conditions imposed will not deter the applicant from further offending.
Analysis
Exceptional circumstances
As I indicated at the hearing, the existence of exceptional circumstances was not an issue in this matter. I am satisfied that exceptional circumstances have been established. The applicant has stable accommodation; he has no prior convictions; he is 13 years old and presumed to be doli incapax; and he is vulnerable in custody due to his young age and low cognitive functioning. The matter is in the summary stream, but it may still be months before it is concluded, particularly if the charges are contested. The applicant is very unlikely to receive a custodial sentence for the alleged offending if found guilty, and any time spent on remand would therefore exceed the ultimate sentence imposed.
Unacceptable risk
The applicant has been on remand now for 23 days. He spent a similar period on remand on the Nesser matters before being granted bail last month, and had only been at large for approximately ten days before committing these alleged offences. Given the applicant’s history of offending whilst on bail, there is a clear risk that he may do so again. The real questions are whether that risk is an unacceptable risk, and whether any risk can be ameliorated by strict conditions so as to render it acceptable. When considering the capacity for the imposition of conditions to mitigate risk, the mandatory considerations in 3B remain important. Children should, wherever possible, be released on bail on appropriate conditions.[7]
[7]See DPP v SE [2017] VSC 13, [38] per Bell J.
The offending involving the driving is serious. The applicant played a central role in stealing the keys and car. There may be an issue as to whether the charge of reckless conduct endangering life can be made out in the circumstances, but the fact remains that driving at speed in an attempt to escape police, in a stolen car, and through two red lights, creates a real danger for all road users.
The applicant is presumed to be doli incapax and the report of Dr Cidoni supports that presumption, at least insofar as a number of previous matters. The prosecution case is not necessarily weak for that reason, however the presumption will be relied upon and the prosecution must rebut it beyond reasonable doubt.
If this matter proceeds to a contested hearing, there will likely be a delay of at least several months before the contest. This is a long delay in circumstances where the applicant is a 13 year old child, the presumption of doli incapax applies, he has family support, he is vulnerable in custody and he is very unlikely to be sentenced to a term in custody even if ultimately convicted on all charges. The respondent accepts that the applicant is unlikely to receive a custodial term. This last matter is a very significant consideration in deciding whether any risk is acceptable.[8]
[8]HA (a pseudonym) v The Queen [2021] VSCA 64, [63] per Maxwell P and Kaye JA.
The applicant’s mother is a strong support. She has acted protectively, and actively worked with Youth Justice and the applicant’s previous school. When the applicant went missing from home in January 2022, she advised Child Protection and sought their assistance. She supported police intervention when, some days later, the applicant still had not been found. She will continue to work with Child Protection and Youth Justice to support the applicant as best she can.
I accept the applicant is vulnerable in custody due to his young age and cognitive functioning. There is a risk of negative influence from older peers, normalisation of criminal behaviour and stigmatisation, as well as further disruption to the applicant’s already disrupted education.
The applicant has no prior convictions, but he does have prior involvement with the police and courts, including being placed on Youth Justice supervised bail. However the evidence from Hayden Bergman provides the Court with some confidence that Youth Justice can continue to work effectively with the applicant.
The applicant is a young child. Detention of young children must remain a position of last resort; they should not be locked up as some form of preventative detention. As the Court of Appeal stated in HA (a pseudonym) v The Queen:
In the absence of any specific statutory provision, preventative detention is alien to fundamental principles that underpin our system of justice. This is an area of particular concern in relation to young offenders who are denied bail. As the Hon Paul Coghlan QC noted in 2017, in Bail Review: First Advice to the Victorian Government, 80 percent of children who have had bail refused do not go on to attract a term of detention for the offending in question. Given the longstanding concern of the criminal justice system – and the community- to keep children out of custody wherever possible, these are alarming statistics.[9]
[9]Ibid at [64] per Maxwell P and Kaye JA.
In all the circumstances, I am not satisfied that the applicant is an unacceptable risk in the ways alleged, if released onto bail with appropriate conditions.
The applicant will be released on bail on his own undertaking and with the following conditions:
(a)He attend the Werribee Children’s Court on 5 April 2022 at 9:30am and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b)He reside at [redacted] (‘residence’), which place of residence is to be varied only by order of a court or as directed by the Department of Families, Fairness and Housing.
(c)He remain at the residence between the hours of 8:00pm and 7:00am (‘curfew hours’) each day for the duration of bail unless in the company of:
(i)His mother, [redacted]; or
(ii)A Youth Justice worker or a nominee of Youth Justice; or
(iii)A Department of Families, Fairness and Housing worker or a nominee of the Department of Families, Fairness and Housing.
(d)He 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.
(e)He not contact or associate with, directly or indirectly, including electronically, any of following persons, namely [redacted], for the duration of the bail period.
(f)He not contact, directly or indirectly, any witness for the prosecution, except the informant First Constable Asharie Marhad.
(g)He not drive a motor vehicle.
(h)He not be present in any stolen motor vehicle.
(i)He not attend any Anytime Fitness gym, or any gym where he is not a paid member.
(j)He obey all lawful directions of Youth Justice, or their nominee/s.
(k)He not leave the State of Victoria.
(l)He not attend any international points of departure.

[2022] VSC 148

23 March 2022