Re GG
[2021] VSC 12
•22 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0004
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by GG |
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JUDGE: | INCERTI J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 January 2021 |
DATE OF JUDGMENT: | 22 January 2021 |
CASE MAY BE CITED AS: | Re GG |
MEDIUM NEUTRAL CITATION: | [2021] VSC 12 |
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CRIMINAL LAW – Application for Bail – 16-year-old Aboriginal applicant diagnosed with mental health issues – Armed robbery and other Schedule 2 offences while on bail for Schedule 2 offence – Exceptional circumstances established – Whether unacceptable risk – No unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | A Halphen | Emma Turnbull Lawyers |
| For the Respondent | N Watt | Legal Services Department, Victoria Police |
HER HONOUR:
This is an application for bail by GG (‘the applicant’), a 16-year-old Aboriginal child with diagnosed mental health issues. He was aged between 14 and 15 at the time of the alleged conduct the subject of this application.
The applicant has been in custody since 31 December 2020, when bail was revoked in the Melbourne Children’s Court in respect of three sets of charges.
First, the applicant is charged by Detective Senior Constable Mitchell Hardisty with five offences relating to an attempted robbery and assaults occurring between July 2019 and 20 August 2019. He was charged on 5 December 2019 and granted police bail. That matter has resolved with the applicant indicating an intention to plead guilty to the offences of armed robbery and assault in company.
Second, he is charged by Senior Constable Emily Casey with robbery and committing an indictable offence whilst on bail on 28 September 2019. He was charged on 23 January 2020 and granted bail in the Melbourne Children’s Court on the same day. That matter has also resolved and the applicant intends to enter a plea of guilty to both charges.
Third, he is charged by Detective Senior Constable Nicole Duffy with false imprisonment, kidnapping, armed robbery, intentionally causing injury, assault in company, possessing a drug of dependence (cannabis), committing an indictable offence whilst on bail and harassing a witness. All of the charges brought by informant Duffy, save for the drug possession charge, relate to events alleged to have occurred on 7 March 2020. The applicant was charged the following day and later granted Youth Justice supervised bail in the Melbourne Children’s Court. At this stage, those charges remain contested.
Prior to his remand, the applicant’s conditions of bail included that he reside with his mother and two siblings at an address in Sunshine West and adhere to a curfew between 9:00pm and 6:00am. Police allege that on seven occasions between 15 and 29 December 2020, the applicant failed to abide by those conditions.[1] As a result, an application to revoke bail in all three matters was successfully brought by police on 31 December 2020. As I have said, the applicant has remained in custody on remand since that date.
[1]The applicant’s solicitor, Natasha Freijah of Emma Turnbull Lawyers, deposes at paragraph [12] of her affidavit in support of bail affirmed on 7 January 2021 (‘Affidavit in Support’) that there are no charges arising from those alleged contraventions, nor for an alleged incident of family violence on 29 December 2020, being the date of his arrest.
In revoking bail, Magistrate Langdon noted that Youth Justice were no longer supportive of the applicant being on supervised bail. However, Youth Justice have since reconsidered their position and are now supportive of bail. Similarly, at the time that bail was revoked, the applicant’s mother was not willing to allow the applicant to reside with her due to concerns regarding family violence and conflict within the home. Happily, the family have made progress towards addressing those concerns and the applicant’s mother is now open to his return home should he be granted bail.
Each of the aforementioned matters are listed in the Melbourne Children’s Court on 2 February 2021. On that day, a plea will be heard in the informants Hardisty and Casey matters and a contest mention will proceed in the informant Duffy matter. The informant Duffy matter is listed for contested hearing in that Court on 26 April 2021.
In addition, on 23 December 2020, the applicant was charged and remains on summons in respect of one count of obtaining property by deception.[2]
[2]Affidavit in Support, [4]. The charged conduct in that matter involves the applicant allegedly advertising a pair of ear pods for sale online for $50 and then failing to provide the product to the buyer after receiving payment.
On 7 January 2021, the applicant filed an application for bail in this Court. By virtue of the uplift provisions of the Bail Act 1977 (‘the Act’), I am required to refuse bail unless satisfied by the applicant that exceptional circumstances exist which justify the grant of bail.[3] Prior to the hearing, the respondent properly conceded that it is open to me to be so satisfied.
[3]This is because the applicant is accused in the informant Duffy matter of committing Schedule 2 offences – armed robbery and committing an indictable offence whilst on bail – while he was on bail for committing an indictable offence whilst on bail in the informant Casey matter. See Bail Act ss 4AA(2)(c)(i), 4A(1A) and 4(2) and sch 2, items 22(a) and 30.
That being so, consideration then turns to the second step, the ‘unacceptable risk’ test. Under the Act, I must refuse bail if satisfied by the respondent of a risk of a kind set out in s 4E(1)(a) and that said risk is an unacceptable risk.
Alleged offending
The matters for which the applicant seeks bail can be summarised briefly as follows.
Informant Hardisty
The applicant is charged alongside his brother, CC, in relation to two incidents involving their sister’s boyfriend, AA. As I have stated, he has indicated through his solicitor that he will plead guilty to the offences of attempted robbery and assault in company.
On a date in July 2019, AA was on a tram with his girlfriend, BB. He was attempting to exit the tram near Highpoint Shopping Centre in Maribyrnong when he was assaulted by the applicant and CC, who punched him multiple times to the head with closed fists.
Next, at around 2:30pm on 20 August 2019, AA, his girlfriend and a friend were present outside a KFC store on Mt Alexander Road in Moonee Ponds. AA observed the applicant and CC approaching them from nearby Hall Street and heard the applicant say ‘drop your bag and come here’. AA’s girlfriend (the applicant’s sister) stepped in front of AA and warned her brothers to leave them alone. AA began to walk away but was followed by CC, who demanded ‘give me your phone and money... I’ll bash you and take your phone’. The applicant then took AA by the arm and swung him into CC before punching him in the face, causing AA to feel dizzy. AA managed to escape to a nearby construction site.
CC and the applicant were arrested on 4 and 5 December 2019, respectively. The applicant was granted police bail that day on condition that he not contact any prosecution witnesses save for the informant.
Informant Casey
As in the informant Hardisty matter, the applicant is charged together with his brother, CC. Similarly, the Court has been informed that he will plead guilty to robbery and committing an indictable offence whilst on bail at the next substantive hearing of the matter on 2 February 2021.
On 28 September 2019, the complainant was riding his bicycle along the Maribyrnong river when he was confronted by the applicant and CC, who were on bicycles of their own. He recognised CC, having been involved in a run in with him and four others around three weeks prior in which he was accused of stealing a bicycle.
The charged conduct involves the applicant and CC cornering the complainant and accusing him of stealing CC’s bicycle. CC then pushed the complainant off his bicycle, causing him to fall to the ground. The applicant kicked the complainant to the head as he lay on the ground, before CC stole his bicycle and rode away with the applicant.
A witness to the incident took a number of photographs of the applicant and CC before their departure from the scene. The applicant was later identified by the complainant via a photo board.
On 23 January 2020, a search warrant was executed at the applicant’s home and he was arrested. Police seized a backpack, two pairs of sneakers and a jumper connected to the incident. Also located were two bicycles, one red and one black and green. The applicant was granted bail the same day in the Melbourne Children’s Court.
At the time of the aforementioned offending, the applicant was on bail in relation to the informant Hardisty matter and two other matters that have since resolved.[4]
[4]On 15 August 2019, the applicant was granted police bail in a matter that resolved by way of diversion. On 2 September 2019, he was again granted police bail in relation to charges of attempted armed robbery and robbery. He was acquitted of all charges in that matter on 18 December 2020.
Informant Duffy
On 7 March 2020 at approximately 11.00am, the complainant, DD attended a McDonald’s restaurant in Footscray to sell a stolen mobile phone to a group of young people. The sale had been arranged by an associate of the applicant, EE. Instead of completing the transaction, DD was confronted with a machete and assaulted. He was robbed of the stolen phone, his personal phone, cigarettes and a bum bag.
DD reported the armed robbery to police, which lead to the arrest, interview and remand of multiple suspected offenders at Sunshine Police Station. At a later stage in the day, he purchased a new mobile phone.
Later that night, at approximately 10:00pm, DD met with the applicant, CC, EE, FF and others at a McDonald’s restaurant in Yarraville. The group travelled by train to the Footscray Railway Station and met with another group of males.
As the groups merged, EE ran away. DD was left with the applicant, CC, FF and three unidentified males. He was apprehensive of the three unidentified males but was reassured by one of them who stated ‘I’m not going to hurt you. I would have punched you ages ago if I was going to do anything’.
Despite this reassurance, at approximately 11:05pm, DD was led into an alley by the group, who threatened to kill him if he ‘snitched’ and repeatedly punched and kneed him to the face. It is DD’s evidence that the unknown males assaulted him but largely left the applicant and FF alone, and that the applicant and FF did not come to his aid. The offenders told DD that he was being assaulted because he had ‘snitched’ to police about the earlier armed robbery in Footscray. One of the offenders produced a flick knife and held it to DD’s stomach, forcing him to hand over his new mobile phone.
Following the attack, the three unknown males directed the applicant, CC and FF to take the applicant to Sunshine. Police believe this was in order for DD to withdraw his statement regarding the suspected offenders being held at Sunshine Police Station. The boys did as directed and walked DD, who was now bleeding from the head, to a nearby bus stop and allegedly filmed him being forced to kiss their shoes.
Soon after, the boys decided to walk DD through the Footscray CBD to an internet café in order to purchase cigarettes. They made him cover his bleeding head with the hood of his jumper whenever cars passed. Despite his repeated requests to leave, the boys allegedly refused to release him as he had to be taken to Sunshine. CC is said to be captured on CCTV footage taken from Footscray CBD gesturing towards DD as though to punch him, causing DD to cower.
Inside the internet café at approximately 11:10pm, DD is depicted on CCTV footage with his head down and covered by a baseball cap and jumper hood. He is said to be shielding himself from others’ sight and touching his face as though to check for blood. He asked permission to sit down and remained in the company of at least one of the males throughout their time in the café, ostensibly to prevent him leaving or seeking help.
The group then allegedly forced DD to return to the bus stop, where he was further assaulted. This assault is said to have been recorded by the applicant on his phone, as depicted in CCTV footage. They boarded a bus to Sunshine at 11:36pm and DD was told to keep his head down or be ‘bashed again’. He was forced off the bus in West Footscray and taken to the Shorten Reserve football oval, where he was made to lie on his stomach and count to ten, and was kicked, hit and stomped to the head. He tried twice to escape but was caught and further assaulted each time.
Eventually, the applicant, CC and FF ran away and DD was able to gain assistance in calling emergency services from a woman sitting in her car. He was bleeding and vomiting. He was transported by paramedics to the Royal Children’s Hospital for treatment of his injuries, which included a laceration to the top of his head, numerous haematomas (bruises) to both sides of his head, significant swelling, bruising and soreness to the face, head and jaw.
Arrest, remand and subsequent grant of bail
On 8 March 2020, the applicant was arrested in Footscray and found to be in possession of small zip lock bag containing 0.85g of cannabis. He was wearing the same clothing as that alleged to be depicted in CCTV footage of the aforementioned incident. A search warrant executed at the applicant’s home on the same day also recovered a pair of shorts allegedly worn during the alleged offending. He was remanded.
On 30 March 2020, the applicant was granted bail in the Melbourne Children’s Court with conditions including residence with his family in Sunshine West, curfew and compliance with the Youth Justice Supervised Bail Program. Bail in that matter, together with the matters of informant Hardisty and Casey, was revoked on 31 December 2020 due to breaches of the curfew and residence conditions. The applicant has since explained that he felt unsafe in the bail residence because of physical altercations with CC and his mother’s partner, and for that reason he did not remain in the home during curfew hours. He reported these concerns to his Youth Justice worker and to Child Protection practitioners.[5]
[5]Further Affidavit in Support, Exhibit NF-8 – Letter of Thomas Toh, Child Protection Practitioner dated 20 January 2021.
Co-accused
CC is 17 years old and has only one prior court appearance for offences that were ultimately dismissed following compliance with an adjourned undertaking in July 2020. He will be sentenced for his role in the informants Hardisty and Casey matters on 2 March 2021.[6] He is presently on Youth Justice Supervised Bail in relation to the informant Duffy matter, for which he faces the same charges as the applicant save for the drug possession charge. CC’s mother has advised that, as of 8 January 2021, CC no longer resides at the family home in Sunshine West.
[6]In those matters, he is charged with attempted robbery, assault in company and unlawful assault (informant Hardisty) and robbery and committing an indictable offence whilst on bail (informant Casey).
FF is charged with the same offences as CC and is presently on bail, with conditions that he not associate with the applicant or CC. He has no criminal history.
The applicant’s background
The applicant was born in Queensland on 29 December 2004 and moved to Melbourne with his family shortly after. As stated above, he is an Aboriginal child. He has been estranged from his father since he was one-year-old, due to violent behaviour on the part of his father that forced the family into protective custody. The applicant’s father is prevented by a full no-contact FVIO from contacting the family. Prior to his remand, the applicant resided with his mother, and two siblings in Sunshine West. His mother’s long-term partner does not reside with the family. The applicant’s brother, CC, suffers from psychosis, which according to his mother is difficult for the applicant to witness.
At the time this bail application was filed, the applicant’s mother was hesitant to accept him back into the home without a ‘safe-contact’ FVIO in place and family mediation taking place. In a statement made to police on 31 December 2020, his mother outlined the reasons for her concerns regarding the applicant residing with her. Since then, the applicant’s mother has provided a letter to the Court dated 17 January 2021 in which she sets out a number of changed circumstances that have contributed to her comfort with the applicant returning home on bail. In particular, there is now a safe contact FVIO in place and the pair attended a mediation session on 14 January 2021, during which they were able to openly discuss and resolve issues surrounding the suitability of the family home as a bail residence. Further, CC, whose mental health issues have negatively impacted the applicant, no longer resides in the home. Lastly, the applicant’s mother’s concerns regarding the negative influence of the applicant’s girlfriend at the time of his remand have been alleviated by the applicant’s agreement to cease contact with her.
The applicant has completed year 10 equivalent in schooling and intends to resume school and undertake year 11 if granted bail.
The applicant has no disclosable criminal history, having completed three diversion programs in relation to charges that have since been dismissed.
The law
As stated, since is charged with Schedule 2 offences alleged to have been committed while on bail for another Schedule 2 offence, the exceptional circumstances test applies to the determination of bail.[7] In other words, I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail to him.[8]
[7]Bail Act, s 4AA(2)(c)(i).
[8]Bail Act, s 4A(2).
As the applicant is a child and an Aboriginal person, ss 3A and 3B of the Act are enlivened. Section 3A of the Act provides:
Determination in relation to an Aboriginal person
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including—
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b)any other relevant cultural issue or obligation.
There is a gross overrepresentation of Aboriginal people in detention in Victoria. Although Aboriginal people comprise less than 1% of the population of Victoria, Aboriginal people make up over 10% of the adult prison population.[9] Although Aboriginal people make up 2% of the youth population of Victoria, Aboriginal people are about 11 times more likely than non-Aboriginal people to be in detention or under supervision.[10] These issues are married to the dangerousness of custody and detention for Aboriginal people which has been extensively documented since the 1991 Royal Commission into Aboriginal Deaths in Custody.[11] Moreover, the acute impact of detention for Aboriginal children has been articulated forcefully by the Koori Youth Council’s Ngaga-dji (hear me) report:
Incarceration isolates and traumatises our youngest community members, locking children away from their communities and into patterns of disadvantage, increasing the likelihood of lifetime recidivism.[12]
[9]Australian Bureau of Statistics, Prisoners in Australia 2020, Table 14.
[10]Australian Institute of Health and Welfare 2020. Youth justice in Victoria 2018–19. Canberra: AIHW , 1991, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania.
[12]Koori Youth Council, Ngaga-dji (hear me) Young Voices Creating Change for Justice (29 August 2018) < 51.
The specific requirement in s 3A of the Act that Aboriginal cultural issues must be taken into account should be read with the cultural rights that Aboriginal persons possess and are protected by s 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’).[13] The intertwining of s 3A of the Act and s 19 of the Charter mandate that appropriate consideration is accorded to a person’s Aboriginal cultural identity in adopting procedures and making determinations in a bail application. This mandatory consideration is amplified in the case of an Aboriginal child as connection to their cultural identity will undoubtedly be ruptured through the impact of custody and incarceration.
[13] DPP v SE [2017] VSC 13, [20].
However, as noted by Bell J in DPP v SE, while s 3A requires these considerations to be taken into account in all bail determinations, the provision does not mandate a particular outcome. Bail may be refused to an Aboriginal applicant who, for example, poses an unacceptable risk to community safety even after taking s 3A into account.[14]
[14]Ibid.
In determining whether to be satisfied that exceptional circumstances exist, I must have regard to the matters set out in those sections, together with the ‘surrounding circumstances’ prescribed in s 3AAA.[15] Relevantly in this matter, s 3B(3) of the Act mandates that bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
[15]The Act s 4A(3).
In the oft-cited matter of Re JO, T Forrest J (as he then was), held the following in the context of a child applicant facing the exceptional circumstances test:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[16]
[16]Re JO [2018] VSC 438 [14].
As noted, the existence of exceptional circumstances justifying the grant of bail is accepted by the respondent in this case. Bail remains opposed, however, on the grounds of unacceptable risk.
If satisfied that exceptional circumstances exist, I must refuse bail all the same if satisfied by the respondent that, should the applicant be released on bail, there is an unacceptable risk of any of the matters set out in s 4E(1) of the Act.[17]
[17]Bail Act ss 4A(4), 4D and 4E.
In determining whether any risk is unacceptable, the Court must again have regard to ss 3A, 3B and the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[18] This Court has previously held that the ‘concept of an unacceptable risk is a relative matter’ and that the effect of s 3B of the Act is such that ‘a risk which might be unacceptable in the case of an adult offender might, in all the circumstances, be a risk which it is acceptable to undertake in respect of the disposition of an offender who is a child.’[19]
[18]Ibid s 4E(3).
[19]Re JB [2020] VSC 184 [50].
Further, as Bell J made clear in DPP v SE, the capacity for the imposition of conditions to mitigate any risk is especially important in the context of an Aboriginal child. The mandatory considerations of ss 3A and 3B play a paramount role in this context. As His Honour stated:
[T]he purpose of ss 3A and 3B is that children, and especially Aboriginal children, should, where possible, be released on bail on appropriate conditions rather than remanded in custody. Their purpose is to ensure that children, and especially Aboriginal children, are protected as far as possible from that physical and emotional harm and that negative formative influence to which they are especially vulnerable in detention on remand, acknowledging that such detention may be necessary as a matter of last resort.[20]
[20]DPP v SE [2017] VSC 13 [38].
Relevantly to s 5AAAA(1) of the Act, the applicant is subject to an interim ‘safe-contact’ Family Violence Intervention Order (‘FVIO’) protecting his mother and sister. Under the terms of that order, the applicant is prohibited from attending the family home or coming with 5 metres of the protected persons if affected by, consuming or in possession of alcohol.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[21]
[21]Bail Act s 1B(2).
The applicant’s contentions
In support of the application for bail, the applicant relies on the following
(a) Youth, lack of criminal history and section 3B factors. The applicant turned 16 on 29 December 2020, just prior to his remand, and was between 14 and 15 at the time of the alleged offending. The affidavit in support addresses the relevant s 3B factors in turn. Namely, it is submitted that there are options other than remand available for consideration by the Court, particularly in light of the applicant’s age, lack of further charges, positive engagement with Youth Justice and the applicant’s reasons for breaching the curfew conditions of bail (that is, to escape family violence within the bail residence).
Relevantly, s 3B(1)(b) of the Act, which requires the Court to take into account the need to strengthen and preserve a child applicant’s relationship with his family, carries particular weight in circumstances where the applicant enjoys the ongoing support of his mother and has stable accommodation in the family home at 21 Learmonth Crescent, Sunshine West, available to him.
Further, and relevant under s 3B(d) of the Act, the applicant is enrolled in school. If granted bail, he intends to commence Year 11 in early February 2021. Finally, a significant matter applying in this case is the likely sentence that would be imposed on the applicant upon a finding of guilt. It is submitted that, given the applicant’s age and lack of criminal history, it is possible that he would receive a community-based disposition if found guilty of the most serious offence.
(b) Aboriginality. The applicant is an Aboriginal person, which enlivens s 3A of the Act and requires the Court to give consideration to any issues arising due to his Aboriginality, including his cultural background, ties to extended family or place and other relevant issues or obligations. Youth Justice previously linked the applicant with the Victorian Aboriginal Child Care Association (‘VACCA’) to assist him in locating his elders and connecting with his culture and he is able to resume that engagement if granted bail.
(c) Special vulnerability. The applicant has diagnoses of selective mutism, anxiety and attention deficit hyperactivity disorder. He is prescribed Ritalin to treat the latter condition and receives support from the Royal Children’s Hospital.
(d) Nature of the alleged offending and strength of the prosecution case. Focussing on the contested informant Duffy matter, the applicant does not dispute that the allegations are of serious offending. However, it is submitted that the prosecution case relies on the complainant’s evidence, his injuries and CCTV footage capturing various parts of the incident. Importantly, it is noted that the complainant does not allege that the applicant participated in the armed robbery, which was not itself captured on CCTV. The applicant’s solicitor further states that there is no CCTV footage identified which depicts the applicant’s involvement in the offending, and, on that basis, states that there is a dispute about the applicant’s involvement either directly or on a complicity basis.
(e) Availability of Youth Justice Supervised Bail and previous compliance. The applicant has been assessed as suitable for the Youth Justice Supervised Bail program. It is Youth Justice’s assessment that he does not require more intensive supervision as his risks can be mitigated by twice weekly appointments with Youth Justice and engagement with various support services.[22] If granted bail, his first appointment would be via Zoom on 25 January 2021.
[22]Relevantly, s 3B(2) of the Act permits the Court to take into account any recommendation or information containing in a report provided by a bail support service.
He was previously been engaged in that program prior to the revocation of his bail on 31 December 2020. A progress report prepared on 8 December 2020 indicates that he was linked with a number of support services and was positively engaged, attending most of his scheduled appointments. The applicant accepts that the summons matter of informant Cairns is said to have occurred while on supervised bail, but submits that that alleged offending represents a de-escalation in his offending behaviour, being dishonest in nature and being at a lower level of seriousness relative to his other outstanding matters. All other outstanding matters pre-date Youth Justice involvement. Further, while the applicant admits having breached his curfew condition, this is because he was experiencing family violence at the hands of his mother’s partner, as reported to Youth Justice and Child Protection.
The supports available to the applicant if granted bail are set out in the Youth Justice Bail Assessment Report dated 20 January 2021. These include his family, his school, twice weekly appointments with his VACCA case manager during school holidays, Youth Justice supervision, Victoria Police (insofar as he will be supported to comply with the FVIO), thrice-weekly visits to his local gym and referrals to the Youth Support and Advocacy Service for drug and alcohol support and for functional family therapy to support his mother in managing the applicant. The report states that the school year commences on 27 January 2021 but the applicant and his mother would be required to attend a return to school meeting in the first week of February. Positively, the applicant has indicated an intention to seek casual employment if granted bail.
The applicant’s Youth Justice case manager, Trudi Moore, will be available to give evidence at the hearing.
(f) Length of time in custody if bail is refused and likely sentence. The applicant is likely to experience a delay whilst in custody awaiting the finalisation of his matters, noting that the informant Duffy matter is listed for contest mention on 2 February 2021 and, at the time of filing the application, the applicant’s solicitor was advised that the next date for a contested hearing would likely be April 2021. The applicant submits that such a delay is of significance when placed in the context of a 16-year-old child with no prior criminal history.
As at the date of the next rollover mention on 21 January 2021 (the day before the bail application hearing), the applicant will have spent 21 days on remand, in addition to the 22 days he already served on remand for the informant Duffy matter between 8 and 30 March 2020. As noted above, the applicant submits that there is a realistic prospect that the applicant would receive a community-based disposition if the most serious offence is found proven.
(g) Onerous conditions in custody. The applicant has endured confinement to his room for 23 hours per day since his remand in this matter, as part of COVID-19 precautions in custody. He is permitted one hour outside his cell by himself, with only prison staff present and has had no face-to-face visitors. Given his age and mental health concerns it is submitted that the conditions of the applicant’s remand are extremely concerning and that the Court should give significant weight to this consideration.
Further, in her letter dated 17 January 2021, the applicant’s mother recounts telephone conversations with the applicant from Parkville Youth Justice Centre in which he told her that he had been physically assaulted by another person on 16 January, causing him a black, swollen eye, lacerations and bruising to his arms and upper body that required emergency medical attention. He was warned that a second assault was coming, causing the applicant’s mother to fear for his safety as he has been returned to the same unit as those responsible for the first assault. That incident is confirmed in the most recent Youth Justice report.
Finally, it is the applicant’s submission that he is not an unacceptable risk of the kind referred to in s 4E of the Act, taking into account the aforementioned factors and the availability of stringent and targeted bail conditions.
The respondent’s contentions
The application for bail is opposed by the respondent, who, whilst conceding that the Court may be satisfied of exceptional circumstances that justify the grant of bail, submits that there is an unacceptable risk that the applicant, if granted bail, would endanger the safety or welfare of any person, commit an offence whilst on bail and/or interfere with a witness or otherwise obstruct the course of justice in any matter.
The respondent submits that the allegations in the informant Duffy matter are serious examples of the charged offences, having occurred in a group setting, in public, over a period of approximately one hour and against a child. While the case for armed robbery is circumstantial, it is submitted that it is not necessarily a weak case and the complainant’s statement is corroborated by stills of CCTV footage placing the applicant on the bus in company with the others at the relevant time. Moreover, the prosecution case for false imprisonment and kidnapping are said to be stronger.
In a report prepared for the purposes of the bail application, the informant, Acting Sergeant Emily Casey, details two incidents of family violence by the applicant against his mother on 28 October and 20 December 2020, respectively. In one of those incidents, the applicant is said to have been heavily alcohol and drug affected. Neither incident resulted in criminal charges.
In support of its position, the respondent also submits the following:
(a) Endangering the safety or welfare of any person. The allegations against the applicant involve violent offending in company with others, in circumstances where he has a history of similar offending. It is said that his criminal conduct involves offending that is high harm, high impact. Further, the complainant in the informant Duffy matter has suffered fear, intimidation and injury as a result of the alleged offending.
(b) Committing an offence whilst on bail. The applicant was on bail at the time of the alleged offending in the informant Duffy matter, which, if proven, would also constitute a breach of the curfew and residence conditions of bail.
As to the applicant’s special vulnerabilities, the respondent points out that no evidence has been filed with respect to his diagnoses nor the effect that his conditions may have on his behaviour. It is submitted by the respondent that the applicant is therefore at a higher risk of endangering the safety and welfare of others and re-offending on bail.
(c) Interfering with a witness or otherwise obstructing the course of justice in any matter. The informant expresses concern that the applicant will interfere with DD and attempt to have him withdraw his complaint, given that the alleged offending against him is said to have been retaliation against DD for making a statement to police regarding an earlier armed robbery.
Analysis
As I indicated during the course of submissions and it was accepted by the respondent, I am satisfied that exceptional circumstances are established. The factors I have relied on are the fact that the applicant has stable and suitable accommodation with his mother; his age being 16 years old; there is no recorded criminal history; he was compliant with his previous bail conditions from 30 March to 15 December 2020 and in that time made good progress and demonstrated a positive attitude; the availability of bail support services; and that it is arguable that the total time on remand would likely exceed any sentence imposed.
The next question is that of whether or not the respondent has established that the risk of releasing the applicant on bail is unacceptable.
It would be foolish to suggest in any way that there is no risk in releasing this young person on bail. Of course there is a risk. However, adopting the rationale of T Forrest J to this application, it seems to me that there are conditions which can be imposed that can mitigate that risk to a degree so as to make the risk acceptable.
In this case, the salient factors which ameliorate any risk posed by the applicant critically include suitable accommodation and the support of his mother. The applicant’s mother has provided a letter to the Court. There is the safe contact FVIO in place and the applicant and his mother attended mediation on 14 January 2021, where they were able to discuss and resolve issues surrounding suitability of the family home as a bail residence. The applicant’s older brother no longer resides at the family home. It seems that the applicant’s older brother’s mental health issues have negatively impacted on the applicant in the past. Having said that, the applicant’s breaches of bail conditions between 15 and 29 December 2020 and the alleged charge of obtaining property by deception committed in August 2020, did not appear to have any connection to the applicant’s older brother’s influence or behaviour. The applicant’s reasons given for breaching the curfew conditions of his bail was to escape family violence within the residence.
I consider on the material before me that the applicant has in the past positively engaged with Youth Justice and the services provided through Youth Justice. The recent Youth Justice report dated 20 January 2021 confirm a number of factors supporting bail compliance relevant to the risk assessment. Importantly, a lack of Youth Justice history and the applicant’s consent and desire to participate in the Youth Justice bail service program. The Youth Justice report also points to the availability of suitable accommodation and support; day programs, Victoria Police Family Violence Unit monitoring and the support of the applicant’s family to assist with compliance with the Family Violence Intervention Order; and cultural support through VACCA provided by Mr Lance Schmidt.
The applicant’s relationship with Mr Schmidt is important and I consider that it acts as a strong protective factor for the applicant and decreases the risk of his reoffending. Mr Schmidt will continue to see the applicant twice a week until the applicant resumes school in early February 2021. Additionally, the opportunity for the applicant to connect with his Aboriginal cultural identity is an important Charter consideration.
The applicant will be attending school full time and he is about to commence year 11. The applicant has also expressed a desire to find part-time work.
The applicant’s behaviour has been linked to negative peer associations and substance use. The Youth Justice Supervised Bail Program will continue to support the applicant to engage with Youth Support and Agency Services (YSAS) and the applicant is waiting to be allocated to a clinician.
In relation to the negative peer associations, there has been concern raised by the applicant’s mother about the decline in his behaviour and attitude to family and education which she believes coincided with the commencement of the applicant’s relationship with his girlfriend. It is proposed that the Youth Justice and applicant’s care team will closely monitor this and initiate any additional interventions as required.
The Youth Justice report refers to the applicant’s ‘care team’. Reviewing the material, the care team is extensive and includes the applicant’s family, his school, YSAS, VACCA, Victoria Police, Youth Justice and Functional Family Therapy. It is a combination of these services and support available to the applicant, along with his desire to engage with the services, to explore cultural issue with the support of Mr Schmidt and rebuild his relationship with his mother, that I consider are the factors which reduce any risk the applicant may pose to an acceptable risk.
The applicant has spent 44 days at Parkville Youth Justice Centre, under difficult circumstances given the restrictions imposed by COVID quarantining, and he suffered a physical attack by another young person. This regrettable experience will no doubt be a significant factor in the applicant’s desire not to be incarcerated again. Moreover, as the applicant is a 16 year old Aboriginal child, detention on remand would highly undesirable because of the high risk to him of physical and psychological harm. It is patently clear that the applicant has already sustained physical and psychological harm while detained and continued detention will further exacerbate his situation.
In conclusion, I order that the applicant be released on bail on his own undertaking and with the following conditions:
(a) He attend the Melbourne Children’s Court on 2 February 2021 for a plea and contested mentions, and then surrender himself, and must 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.
(b) He reside at [residence redacted], with his mother [name redacted], and not change that address without leave of the Court.
(c) He remain at that residence between the hours of 9:00pm and 6:00am each day for the duration of the bail, unless in the company of his mother, Mr Lance Schmidt of VACCA, or an officer of Youth Justice.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of the Victoria Police to do so.
(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(f) He comply with the Interim Family Violence Intervention Order, made in the Children’s Court at Sunshine on 7 January 2021 in case number [redacted].
(g) He attend the Youth Justice Supervised Bail Support Service, and:
(i) comply with all lawful directions of any officer of Youth Justice;
(ii) attend all appointments as directed by any officer of Youth Justice; and
(iii) participate in any education program as directed by any officer of Youth Justice.
(h) He not contact, directly or indirectly, any witness for the prosecution, except the informant or their nominee.
(i) He not contact, directly or indirectly, EE, FF or any other co-accused.
(j) He not contact, directly or indirectly, his brother, CC, unless in the company of a parent of an officer of Youth Justice.
(k) He not leave the State of Victoria.
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