Re GS
[2024] VSC 439
•26 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0157
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by GS |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATES OF HEARINGS: | 16, 19, 23 and 26 July 2024 |
DATES OF RULINGS: | 19 and 26 July 2024 |
CASE MAY BE CITED AS: | Re GS |
MEDIUM NEUTRAL CITATION: | [2024] VSC 439 |
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CRIMINAL LAW – Bail – 16 year old child – Schedule 2 offences alleged to have been committed whilst subject to a summons for another Schedule 2 offence – Applicant required to show exceptional circumstances – Nature and seriousness of alleged offending – Strength of prosecution case – Whether time spent on remand likely to exceed any term of imprisonment – Criminal history – Personal circumstances – Special vulnerability – Availability of bail support services – Exceptional circumstances established – Risk not shown to be unacceptable if bail granted for 1 week on strict conditions – Bail granted for 1 week – Compliance with all conditions during 1 week period of bail – Further application – Further application not opposed by the respondent – Further application granted – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | B Proud | Claudia Grimberg Lawyers |
| For the respondent | N Moran (solicitor) P McKimmie (solicitor) | Victoria Police |
HIS HONOUR:
A. Introduction
On 3 July 2024, the applicant, GS,[1] was arrested and charged in relation to:
(1)12 offences he is alleged to have committed on 28 June 2024 (being charges 1 to 12).
(2)4 offences he is alleged to have committed on 2 July 2024 (being charges 13 to 16).
[1]The pseudonym “GS” 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).
At the first hearing of this application on 16 July 2024, the prosecution provided the court with an updated preliminary brief containing an additional 5 charges GS is alleged to have committed on 28 June 2024 (being charges 17 to 21).
The 17 offences alleged to have been committed on 28 June 2024 comprise:
(1)Four charges of aggravated burglary, contrary to section 77(1) of the Crimes Act 1958 (Vic) (charges 1, 2, 8 and 21).
(2)Two charges of theft of a motor vehicle, contrary to section 74(1) of the Crimes Act (charges 3 and 5).
(3)Armed robbery, contrary to section 75A(1) of the Crimes Act (charge 4).
(4)Two charges of attempting to commit an indictable offence, namely burglary, contrary to section 321M of the Crimes Act (charges 6 and 7).
(5)Two charges of theft, contrary to section 74(1) of the Crimes Act (charges 9 and 18).
(6)Three charges of robbery, contrary to section 75(1) of the Crimes Act (charges 10, 11, 12).
(7)Three charges of attempting to commit an indictable offence, namely aggravated burglary, contrary to section 321M of the Crimes Act (charges 17, 19 and 20).
The offences alleged to have been committed on 2 July 2024 comprise:
(1)Aggravated burglary, contrary to section 77(1) of the Crimes Act (charge 13).
(2)Theft, contrary to section 74(1) of the Crimes Act (charge 14).
(3)Robbery, contrary to section 75(1) of the Crimes Act (charge 15).
(4)Theft of a motor vehicle, contrary to section 74(1) of the Crimes Act (charge 16).
At the time of the alleged offending on 28 June 2024 and 2 July 2024, GS was subject to a summons to answer a number of charges for offences alleged to have been committed on 17 October 2023, namely:
(1)Aggravated burglary, contrary to section 77(1) of the Crimes Act.
(2)Committing an indictable offence whilst on bail, contrary to section 30B of the Bail Act 1977 (Vic).[2]
(3)Theft, contrary to section 74(1) of the Crimes Act.
(4)Two charges of theft of a motor vehicle, contrary to section 74(1) of the Crimes Act.
[2]The provision establishing this offence has since been repealed.
On 4 July 2024, GS applied for bail in the Children’s Court in respect to the charges the subject of this application. That application was refused on the basis that GS had failed to establish the existence of exceptional circumstances to justify the grant of bail and that, regardless, he posed an unacceptable risk of endangering the safety or welfare of any other person.
In support of GS’ application for bail before this court, he relied on a number of factors said in combination to establish the existence of exceptional circumstances. These included triable issues in relation to the prosecution case, his personal circumstances and special vulnerabilities, including being a child, the availability of a bail support service, namely Youth Justice, the availability of education and casual employment, his limited criminal history, compliance with the conditions of an earlier grant of bail, anticipated delay in the proceeding and that the time spent on remand would likely exceed any term of imprisonment ultimately imposed.
The application was opposed by the prosecution on the basis that exceptional circumstances had not been established, but that in any event, if GS were to be released on bail, he would present an unacceptable risk of:
(1)Endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means.
(2)Interfering with a witness or otherwise obstructing the course of justice in any matter.
(3)Failing to surrender into custody in accordance with the conditions of bail.
A.1 Initial application on 16 July 2024
After hearing the evidence on 16 July 2024, I expressed my preliminary view that I could not be satisfied that the unacceptable risk GS posed could be ameliorated to an acceptable level. While not a criticism of GS’ legal representatives or relevant support services, as they then stood, the programs and services proposed (including in relation to the Youth Justice supervised bail program, and GS’ education and employment) were unclear or too uncertain. At that time, what was proposed had either not yet been confirmed by the hearing date, or if it had been confirmed, did not appear to provide a level of support or supervision that could ameliorate the risk to an acceptable level.
Counsel for GS was given the choice between proceeding with her submissions or seeking an adjournment to enable the issues to be addressed. The latter course was adopted.
The hearing of the application was therefore adjourned part-heard and GS was further remanded in custody until 19 July 2024.
A.2 Further hearing on 19 July 2024
In advance of and during the hearing on 19 July 2024, GS provided further evidence in relation to his proposed schooling arrangements, engagement with Youth Justice and involvement in other community outreach programs. At the conclusion of that hearing, GS was granted bail for 1 week subject to strict conditions, with judicial monitoring to take place on 23 July 2024. I was satisfied that GS had established the existence of exceptional circumstances that justified the grant of bail and that the prosecution had not established that GS posed an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.
In arriving at this conclusion, I placed reliance on the combined weight of several factors, including the availability of a revised and more intensive Youth Justice supervised bail program, GS’ proposed enrolment at a learning centre dedicated to assisting children at risk (“the Learning Centre”), the limited duration of the grant of bail and the imposition of strict conditions of bail that would ameliorate any risk posed by GS to a level that was not unacceptable.[3]
[3]See further pars 148-152 below.
A.3 Judicial monitoring on 23 July 2024
Promisingly, at the judicial monitoring hearing held on 23 July 2024, no concerns were raised in relation to GS’ compliance with his conditions of bail. GS reported that he had attended all appointments he was required to attend in accordance with his Youth Justice supervised bail program, and that he had started at his new school. The prosecution indicated to the court that assuming GS continued to comply with his conditions of bail for the remainder of that week, it was unlikely that there would be any opposition to a further grant of bail after 26 July 2024.
A.4 Further application on 26 July 2024
A further application for bail was made today. This application was not opposed by the prosecution.
For the reasons that follow, the further application for bail is granted.
B. Background
B.1 Alleged offending
The following accounts of alleged offending by GS are set out in chronological order. They are based on the prosecution case and comprise allegations only.
B.1.1 Alleged offending on 17 October 2023
On 17 October 2023, at approximately 6.30am, 5 young people, 1 of whom is believed to have been GS, allegedly gained access to a residence in Glen Waverley while the occupants were asleep. The young people allegedly stole, amongst other things, a handbag, a PlayStation 5 and keys to 2 vehicles.
The group was allegedly captured on closed circuit television leaving the address, stealing a blue Mazda CX9 and a silver Mercedes and then driving off in those vehicles in convoy with a white Volkswagen Golf.
At approximately 7.17am, the silver Mercedes was shown on the owner’s Mercedes tracking application to be parked outside a residential address near the residential address of 1 of GS’ co-accused.
The silver Mercedes was allegedly captured on neighbouring closed circuit television arriving outside the residential address in convoy with the white Volkswagen Golf and a black Mercedes. At the time, the white Volkswagen Golf was an outstanding stolen vehicle, having allegedly been stolen during an aggravated burglary in Caulfield South on 11 October 2023.
Later, at approximately 10.45am, GS and his co-accused were arrested at a fast food restaurant in Pakenham. The keys to the white Volkswagen Golf were found in the possession of 1 of GS’ co-accused. Minutes later, police located the white Volkswagen Golf parked behind the fast food restaurant.
At the time of his arrest, GS’ mobile phone was seized and later analysed. The analysis revealed, amongst other things, that between 7.06am and 7.14am, the phone had been utilised in the vicinity where the silver Mercedes was recovered.
Following his arrest, GS was issued with a summons to answer charges in relation to the alleged offending.
B.1.2 Alleged offending on 28 June 2024
B.1.2.1 Charge 17 – Attempted aggravated burglary – Residential address in Hawthorn East
It is alleged that on 28 June 2024, at approximately 12.30am, 6 young people, including GS, attended a residential address in Hawthorn East in an allegedly stolen white Kia Sportage.[4]
[4]It is alleged that the white Kia Sportage was stolen during an aggravated burglary on 14 June 2024 in Narre Warren. The vehicle was recovered by police on 30 June 2024.
The vehicle was allegedly captured on closed circuit television stopping outside the residential address in Hawthorn East. Five young people exited the vehicle and the driver remained inside the vehicle.
The young people were allegedly captured on closed circuit television entering the front yard by jumping the front fence. It is alleged that the footage depicted GS jumping the fence last and walking towards the premises behind his co-accused, and that he was captured wearing a black hooded jumper, a white glove on his right hand, a black glove on his left hand, grey tracksuit pants with distinctive red, black and white markings down the side of the left leg and black Nike runners (“the First Set of Clothing”).
One of the young people then allegedly unsuccessfully attempted to open the driver’s door of a white Volkswagen Golf vehicle that was parked in the driveway.
It is then alleged that the 5 young people attempted to open the front door of the residence which was locked and proceeded through a side gate to the rear of the residence before leaving a short time later empty handed.
Telecommunication-event-based-monitoring location data obtained by police in respect to GS’ mobile phone (“Phone Monitoring Data”) suggests that he was in the vicinity of this location at the time the attempted aggravated burglary was allegedly committed.
B.1.2.2 Charge 1 – Aggravated burglary – Residential address in Eltham
It is alleged that at approximately 2.09am, 6 young people, including GS, attended a residential address in Eltham in the white Kia Sportage.
The vehicle was captured on closed circuit television arriving at the residence and a group of young people could be seen allegedly attempting to gain access to a Volkswagen Amarok utility vehicle parked in the driveway.
The young people then allegedly gained access to the residence through an internal door accessible from the garage. The resident woke to noises and called out, causing the group to flee empty handed.
It is alleged that Phone Monitoring Data suggests that GS was in the direct vicinity of this residence at the time the aggravated burglary was allegedly committed.
B.1.2.3 Charge 18 – Theft – Residential address in Chirnside Park
It is alleged that at approximately 3.00am, an unknown number of young people, said to include GS among them, attended a residential address in Chirnside Park in the white Kia Sportage. The group allegedly gained access by unknown means to the resident’s Holden Commodore vehicle that was parked in the driveway. It is alleged that the young people stole the resident’s wallet from the centre console of the vehicle, which contained the resident’s bank cards and Medicare card.
Phone Monitoring Data placed GS in the direct vicinity of the residence at the time that the theft was allegedly committed.
Later at approximately 3.58am, in Mulgrave, a witness allegedly observed individuals wearing hooded jumpers swap the registration plates on a white vehicle (which police believe to be the white Kia Sportage) before leaving the area. The witness then inspected the area where the vehicle had been and located a bank card and screws that he assumed were from registration plates. The witness later handed in the bank card at a nearby police station.
The white Kia Sportage was captured on closed circuit television stopped on the road. A group of young people were allegedly captured walking around the vehicle with torches.
Again, Phone Monitoring Data placed GS in the direct vicinity of the area at the time.
B.1.2.4 Charges 2 and 3 – Aggravated burglary and theft of a motor vehicle – Second residential address in Chirnside Park
It is alleged that at approximately 3.05am, at least 2 young people, 1 of them being GS, attended a residential address in Chirnside Park in the white Kia Sportage. The group allegedly entered the premises through an unlocked rear door and stole car keys from the address.
The resident woke to noises and went to investigate, allegedly observing the 2 young people inside the house near the front door. After the resident confronted the pair, they fled the property, stealing the resident’s grey Ford Territory vehicle.
The resident observed his vehicle being driven away in convoy with what they described as a white sport utility vehicle. Police believe this vehicle to be the stolen white Kia Sportage. It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the second residential address in Chirnside Park at the time these offences were allegedly committed.
B.1.2.5 Charge 4 – Armed robbery – McDonalds in Chirnside Park
It is alleged that at approximately 3.15am, at least 4 young people, 1 of whom is believed to have been GS, attended a McDonalds restaurant on the Maroondah Highway in Chirnside Park in the white Kia Sportage.
Two young people allegedly entered the restaurant and made their way to the back office area. It is alleged that the restaurant manager then yelled at the pair, causing them to initially retreat outside and back to the white Kia Sportage.
Three young people allegedly returned, 1 being armed with a hammer. They allegedly approached the restaurant manager and demanded she open the safe. It is alleged the restaurant manager opened a cash till and the trio subsequently stole an unknown amount of cash. One of the young people then allegedly used the hammer he was carrying to smash a register screen before leaving the restaurant.
One of GS’ co-accused was allegedly captured on closed circuit television at the McDonalds restaurant. It is also alleged that Phone Monitoring Data suggests that GS was in the direct vicinity of the McDonalds at the time the alleged offending was committed.
B.1.2.6 Charge 19 – Attempted aggravated burglary – Residential address in Glen Iris
Later, between 4.00am and 4.40am, GS allegedly attended a residential address in Glen Iris. GS was allegedly captured on closed circuit television attempting to open the rear door of the residence whilst the resident was present and sleeping at the time.
A short time later, GS was allegedly captured on closed circuit television walking down the southern side of the residence, using a mobile phone as a torch. GS was allegedly wearing the First Set of Clothing at that time.
After an unsuccessful attempt to gain entry to the residence, GS allegedly retreated back through the rear yard and out of view.
It is alleged that Phone Monitoring Data suggests that GS was in the direct vicinity of the Glen Iris residence at the time of the alleged offending.
B.1.2.7 Charge 20 – Attempted aggravated burglary – Second residential address in Glen Iris
It is also alleged that between 4.00am and 4.40am, at least 4 young people, including GS, attended a second neighbouring residential address in Glen Iris.
The group were allegedly captured on closed circuit television jumping over the front fence, and the fence on the northern side of the residence. They then appeared to walk down the southern side of the property whilst the resident was present and sleeping at the time.
GS was also allegedly captured on closed circuit television walking down the southern side of the property using a mobile phone as a torch. It is alleged that GS was wearing the First Set of Clothing.
After a security light was switched on, GS was allegedly captured on closed circuit television walking back the way he came. He then allegedly fled the scene, stepping over a shared partition fence with a neighbouring property.
The white Kia Sportage was also allegedly captured on closed circuit television outside the residence. The driver remained inside the vehicle for the duration of the attendance.
It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the second residential address in Glen Iris at the time of the alleged offending.
B.1.2.8 Charge 21 – Aggravated burglary – Third residential address in Glen Iris
It is also alleged that between 4.00am and 4.40am, at least 3 young people, including GS, attended a third neighbouring residential address in Glen Iris. It is alleged that the group jumped a side gate and attempted to gain entry into the residence through several doors until they successfully gained entry through a side door.
GS was allegedly captured on closed circuit television wearing the First Set of Clothing and attempting to open a rear sliding door while using a mobile phone as a torch. He was also allegedly captured on closed circuit television attempting to gain entry through a window and fly screen which he damaged. A co-accused allegedly attempted to assist GS to gain entry through the window. That co-accused’s face was visible in the closed circuit television footage.
Once inside the residence, the group allegedly stole the keys from the kitchen to 2 vehicles which were parked in the carport; being a grey Volkswagen sedan and a silver Volkswagen Passat station wagon.[5] It is alleged the group then stole the 2 vehicles unbeknown to the owner who was asleep inside the residence at the time.
[5]It is alleged that the silver Volkswagen Passat allegedly stolen during the aggravated burglary at the third residential address in Glen Iris was the stolen vehicle used in the alleged offending on 2 July 2024.
It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the third residential address in Glen Iris at the time of the alleged offending.
B.1.2.9 Charges 5 and 6 – Theft of a motor vehicle and attempted burglary – Milk bar in Brighton East
Later at approximately 5.40am, at least 2 young people, 1 of them being GS, allegedly attended a milk bar in Brighton East in the white Kia Sportage.
One member of the group was allegedly armed with a large sledgehammer and attempted to smash the glass front sliding doors of the milk bar. However, the doors were reinforced with steel bars and could not be opened.
The owner of the milk bar, who resides in the second storey apartment above the shop, was woken up by the sound. He allegedly observed 2 young people trying to break down the front door with what he has described as a “big hammer”. He yelled out to ask them what they were doing. He then allegedly observed the group get into a vehicle he described as a “white SUV”[6] and leave the area. Police believe the white SUV referred to by the milk bar owner was the white Kia Sportage.
[6]That is, a sport utility vehicle.
Another witness who was walking his dog in the area allegedly heard the sound of smashing glass just before 6.00am. He initially believed the noise was being made by workers at a building site. However, as he approached the milk bar, he allegedly observed 2 or 3 young people attempting to smash the glass doors and gain entry to the store. He yelled out to them several times. One of the young people, who was waiting by what the witness described as a “white SUV”, then allegedly called out to the others stating “we gotta go”. The group then allegedly left the scene in the white Kia Sportage. The witness described the young people as “skinny” and said they were wearing hooded jumpers.
It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the milk bar in Brighton East at the time of the alleged offending.
B.1.2.10 Charge 7 – Attempted burglary – Coles Express service station in Hampton
It is alleged that at approximately 5.44am, 4 young people, including GS, attended a Coles Express service station in Hampton in the white Kia Sportage.
One of the young people, allegedly armed with an axe with a long wooden handle, allegedly struck the front glass doors of the store several times, attempting to force entry. It is also alleged that another young person, allegedly armed with a hammer, attempted to break the glass doors. Several of the young people allegedly swapped these weapons between themselves and took turns at attempting to break the glass, as well as attempting to use physical force by pushing and kicking the doors. After approximately 6 minutes of attempting to break into the store without success, the group allegedly left the location in the white Kia Sportage.
At approximately 6.10am, an employee arrived at the store to commence her shift. She observed damage to the front glass entry doors to the store and reported the incident to police.
GS was allegedly captured on closed circuit television at the store wearing the First Set of Clothing. It is also alleged that Phone Monitoring Data suggests that GS was in the direct vicinity of the Coles Express in Hampton at the time the attempted burglary was allegedly committed.
B.1.2.11 Charges 8 and 9 – Aggravated burglary and theft – Ampol service station in Cheltenham
It is alleged that at approximately 6.00am, at least 5 young people, including GS, attended an Ampol service station in Cheltenham in the white Kia Sportage.
Four young people allegedly entered the service station, whilst 1 remained in the white Kia Sportage. Upon entering the service station, the 4 young people allegedly jumped the counter and attempted to open the cigarette cabinets. One of them allegedly grabbed the cash register, whilst 2 others allegedly entered the rear office and stole cigarettes from the open safe.
The young people allegedly then repeatedly demanded that a staff member open the safe and cigarette cabinets behind the counter. The staff member allegedly overheard the young people discussing returning to the store with a knife. She then locked herself in the back office, pressed the duress alarm and reported the incident to police.
During the incident, a customer allegedly had his pockets searched by a member of the group. That customer observed the young people arrive and leave the store in the white Kia Sportage.
It is alleged the young people made multiple trips to and from the white Kia Sportage, stealing cigarettes and 2 cash registers and placing them in the boot of the vehicle. Before leaving the service station, the young people also allegedly stole various drinks and snacks.
GS was allegedly captured on closed circuit television at the service station wearing the First Set of Clothing.
Later at approximately 7.28am, investigators from the Moorabbin crime investigation unit attended the Clayton Bowls Club carpark in relation to property suspected of being stolen during the alleged aggravated burglary and theft at the Ampol service station.
An anonymous witness had called triple-0 after observing 2 or 3 young people in the carpark attempting to open a cash register. The young people allegedly told the witness to mind their own business after the witness approached the group, and then subsequently left the area in a vehicle described as a “white hatch” (which police believe to be the white Kia Sportage). Police subsequently attended the location and seized $48.75 in assorted coins, 7 cigarette trays, 2 black plastic register trays, 2 black steel cash register trays, a black beanie and a medical diabetes kit.
Phone Monitoring Data placed GS in the direct vicinity of the Ampol service station in Cheltenham at the time the aggravated burglary and theft were allegedly committed.
B.1.2.12 Charge 10 – Robbery – Shell service station in Heatherton
It is alleged that at approximately 6.09am, at least 5 young people, including GS, attended a Shell service station in Heatherton in the white Kia Sportage.
An employee was in the process of opening the service station at the time the group arrived. Four young people allegedly entered the store. Three of them ran behind the counter and 1 jumped over it. The group allegedly yelled at the service station employee words to the effect of “where are the cigarettes” and “where’s the money”. The employee subsequently handed over cigarettes and the cash register to the group.
The group allegedly stole approximately $300 from the cash register, before turning their attention to the cigarette drawers. They allegedly stole an unknown number of cigarettes, which were still contained within trays and transferred to the waiting white Kia Sportage.
On their way out of the service station, 1 of the young people allegedly stole a pair of sunglasses from the stand next to the entry and exit doors.
Whilst the alleged offending was occurring, another young person allegedly stood next to the white Kia Sportage holding an axe.
A number of sets of car keys were also allegedly stolen from the service station and the carpark adjacent to the service station was searched by the group of young people. One member of the group allegedly yelled at the service station employee asking “where’s the beema” and “where the fuck are these cars”. After allegedly searching the next door carpark, the group left the service station in the white Kia Sportage.
GS was allegedly captured on closed circuit television at the service station wearing the First Set of Clothing. It is also alleged that Phone Monitoring Data placed GS in the direct vicinity of the Shell service station in Heatherton at the time the robbery was allegedly committed.
B.1.2.13 Charge 11 – Robbery – BP service station in Mount Waverley
At approximately 6.34am, at least 5 young people, including GS, allegedly attended a BP service station in Mount Waverley in the white Kia Sportage.
It is alleged that 4 of the young people entered the store and attempted to make their way behind the counter. The store manager attempted to thwart their attempts to climb over the counter and enter through the staff door.
As the store manager was attempting to prevent 1 of the young people from coming through the staff door, 2 other young people allegedly jumped the counter and stole a cash register containing approximately $200 in cash. The group then allegedly left the service station. The store manager later told police the young people were wearing hooded jumpers and masks.
A customer who was refuelling his vehicle allegedly witnessed the robbery. He told police that the group left the service station in a “white SUV”.
GS was allegedly captured on closed circuit television at the service station wearing the First Set of Clothing. It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the BP service station in Mount Waverly at the time the robbery was allegedly committed.
B.1.2.14 Charge 12 – Robbery – Ampol service station in Forest Hill
At approximately 7.14am, at least 5 young people, including GS, allegedly attended an Ampol service station in Forest Hill in the white Kia Sportage.
Four of the young people allegedly entered the service station, while another young person remained inside the white Kia Sportage. Once inside the store, the 4 young people allegedly ran towards the counter, jumped over it and demanded the service station employee hand over money and cigarettes.
The service station employee opened the cash register and 1 of the young people allegedly stole approximately $370 in cash. The same young person then allegedly demanded that the employee open the safe. The employee handed over the key and another approximately $320 in cash was stolen from the safe.
A customer was refuelling his vehicle at the service station and witnessed the alleged robbery. He described the vehicle used by the group of young people as a “smaller size white SUV”. He allegedly observed the group place a number of stolen items in the boot of the vehicle. The customer called triple-0 to report the incident to police. The group of young people allegedly left the service station in the white Kia Sportage before police arrived at the scene.
GS was allegedly captured on closed circuit television at the service station wearing the First Set of Clothing. It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the Ampol service station in Forest Hill at the time the robbery was allegedly committed.
Later on 28 June 2024, a co-accused of GS was arrested and charged for his involvement in the alleged offending earlier that day. Analysis of the co-accused’s mobile phone revealed a series of messages on the “Snapchat” instant messaging application in which police allege GS’ involvement in the alleged offending was discussed.
B.1.3 Alleged offending on 2 July 2024
B.1.3.1 Charges 13 and 14 – Aggravated burglary and theft – Shell service station in Greensborough
On 2 July 2024, at approximately 5.11am, 6 young people, including GS, allegedly attended a Shell service station in Greensborough in the silver Volkswagen Passat vehicle allegedly stolen in Glen Iris on 28 June 2024.[7]
[7]See par 59 above.
It is alleged that 5 of the young people, including GS, exited the vehicle, entered the store and approached the counter. The sixth member of the group allegedly remained inside the vehicle. The 5 young people allegedly climbed over the counter and opened the security door, proceeding to steal approximately $250 cash from 2 cash registers, as well as 3 drawers of cigarettes. They then allegedly placed these stolen items into the boot of the vehicle, leaving behind 2 empty trays of cigarettes.
An employee was outside by the fuel pumps when the young people allegedly entered the store. When she returned inside the store and realised what was occurring, she immediately locked herself in a back room and activated the duress alarm. The young people allegedly left the store in the silver Volkswagen Passat before police arrived at the scene.
GS was allegedly captured on closed circuit television at the service station wearing black Nike tracksuit pants with a grey vertical stripe down the side of each leg from the waist band to the knee and black Nike runners (“the Second Set of Clothing”). It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the Shell service station in Greensborough at the time of the alleged offending.
B.1.3.2 Charges 15 and 16 – Robbery and theft of a motor vehicle – Ampol service station in Monbulk.
Later at approximately 6.40am, it is alleged that at least 5 young people, including GS, attended an Ampol service station in Monbulk in the silver Volkswagen Passat.
The group of young people allegedly approached the store manager at the counter and threatened to stab him with a knife. One young person allegedly jumped the counter and slid through the metal security wires to access the cigarette cabinet and cash registers, whilst the other young people entered the back area through the side security door.
The group allegedly stole a cash register containing an unknown quantity of cash and a set of keys belonging to the store manager.
During the incident, a customer drove into the service station to purchase fuel for his vehicle. Once he realised a robbery was taking place, he allegedly took a photograph of the silver Volkswagen Passat and retrieved a concrete rake from his own vehicle, using it to smash the windscreen of the offending vehicle which was stationary and waiting near the vicinity of the entry door.
As the young people exited the service station, 1 of them allegedly grabbed a bottle of “Ad blue” fuel, cut the top off the bottle using what the customer described as a “box cutter” and threw the bottle at the customer and his vehicle before the group entered the silver Volkswagen Passat and fled the scene.
GS was allegedly captured on closed circuit television at the service station wearing the Second Set of Clothing. It is alleged that Phone Monitoring Data placed GS in the direct vicinity of the Ampol service station in Monbulk at the time of the alleged offending.
B.2 GS’ arrest
The next day, at approximately 10.02am, GS was arrested during the execution of a search warrant at his family home.
GS’ mobile phone was seized by police, together with a pair of black Nike runners believed to have been worn by him during the alleged offending on 28 June 2024 and 2 July 2024. A pair of black Nike tracksuit pants believed to have been worn by GS during the alleged offending on 2 July 2024 was also seized.
Following his arrest, GS was transferred to his local police station and was remanded to appear at the Children’s Court the following day.[8]
[8]See par 6 above.
B.3 Criminal history
GS’ criminal history is not insignificant and includes prior findings of guilt in relation to violence based offending and motor vehicle theft.
On 17 May 2024, GS was released without conviction on a good behaviour bond until 9 May 2025 in relation to charges of aggravated burglary and attempted aggravated burglary in respect to offending that was committed on 12 and 13 February 2024.
On 12 January 2024, GS was released without conviction on a good behaviour bond until 13 September 2024 in relation to 2 incidents culminating in charges of home invasion where a person was present, committing an indictable offence whilst on bail,[9] and 4 charges of theft of a motor vehicle. The first incident occurred on 17 October 2023,[10] during which GS and other young people arrived at a residential address in Hawthorn East in a stolen vehicle. The group then broke into the residence and stole another vehicle. The second incident occurred on 13 November 2023, in which GS and other young people broke into a residence in Bentleigh East and stole 2 vehicles.
[9]See fn 2 above.
[10]This offending is separate to the offending that was alleged to have been committed in Glen Waverley on the same date (being the alleged offending to which GS was subject to a summons at the time of the alleged offending on 28 June 2024 and 2 July 2024): see par 5 above.
While not forming part of his criminal record, GS was placed on a diversion program in relation to a series of offences which were alleged to have been committed between 18 April 2023 and 14 July 2023.[11]
[11]If a child completes a diversion program, the court must discharge the child without any finding of guilt (subject to limited exceptions, of which none apply to the circumstances of GS’ offending): see s 356I of the Children, Youth and Families Act. Consequently, it was agreed between the parties that it was not appropriate to publish specific details of the offending in any judgment or ruling in relation to this matter.
The circumstances underlying the findings of guilty, together with remaining allegations, have been set out in some detail to demonstrate the seriousness of the offending and alleged offending.[12] In short, it must be acknowledged that this type and scale of offending is extremely disruptive, and causes a great deal of anxiety and, in some cases, psychological harm to the victims and to persons in our community more generally.[13]
[12]A summary table of GS’ prior criminal history and alleged offending to date is set out as annexure A to these reasons.
[13]See further par 143 below.
B.4 GS’ personal circumstances
GS is currently 16 years of age. His parents came to Australia from South Sudan approximately 20 years ago. He is the fourth of 7 children.
Prior to his remand, GS lived in his family home with his mother and siblings. His father returned to South Sudan in 2023. It is not currently known when GS’ father will be returning to Australia. GS has reportedly had contact with his father 2 or 3 times since his departure from Australia.
GS and his family have a history of involvement with the child protection system. Reports prepared by the Department of Families, Fairness and Housing have cited concerns about GS’ siblings not attending school, unsupervised time, engagement in criminal behaviours and alleged family violence being perpetrated by GS’ father.
GS previously had an educational placement where he was enrolled in year 11 in a Victorian Certificate of Applied Learning program.
GS started high school in 2020 and was required to participate in remote learning due to state-wide COVID-19 restrictions. While his attendance at school during years 8 and 9 in 2021 and 2022 respectively was normal, in 2023, his attendance at school dropped and there were large periods of time during which GS did not attend school at all. He has similarly not often attended school in 2024. It was ultimately agreed between the parties at the hearings on 16 July 2024 and 19 July 2024 that if GS were to be released on bail, pursuing another educational opportunity, specifically at the Learning Centre, would be more suited to GS’ needs.
Prior to being remanded in custody, GS worked at a local fast food restaurant on a casual basis. While it was initially proposed on GS’ behalf that he could continue with his casual employment if he were released on bail, this proposal was ultimately withdrawn at the hearing on 19 July 2024.
C. Legal principles
Broadly, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of maximising the safety of the community and the presumption of innocence and the right to liberty.[14]
[14]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
As GS 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 is of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the court: see Children, Youth and Families Act, s 3.
[16]Children, Youth and Families Act, s 346(6).
GS has been charged with committing Schedule 2 offences, namely aggravated burglary and armed robbery,[17] whilst subject to a summons for another Schedule 2 offence, namely aggravated burglary.[18] Therefore, he must demonstrate that exceptional circumstances exist to justify the grant of bail.[19]
[17]Bail Act, Schedule 2, items 22(b) and 22(a) respectively.
[18]Ibid, Schedule 2, item 22(b).
[19]Ibid, ss 4AA(2)(c)(ii) and 4A(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances in question must be such as to take the case out of the ordinary or norm so as to justify the grant of bail.[20] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters, even when none of the individual circumstances is properly considered exceptional.[21]
[20]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[21]Ibid.
If the court is satisfied that exceptional circumstances exist, the prosecution may nevertheless demonstrate that an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[22] In assessing whether any risk is an unacceptable risk, the court must consider whether the risk may be mitigated by any conditions of bail.[23]
[22]Bail Act, s 4D(a).
[23]Ibid, s 4E(3)(b). See also s 5AAA.
The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the exceptional circumstances test has been met.[24] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.[25] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[26]
[24]Ibid, s 4E(1).
[25]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[26]Bail Act, s 4E(2).
In considering both whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[27] Such surrounding circumstances include, but are not limited to, the matters listed in section 3AAA(1) of the Bail Act.
[27]Ibid, ss 4A(3) and 4E(3)(a).
If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of the risk that the applicant may endanger the safety or welfare of any person, whether by committing an offence that has that effect or by any other means, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.[28] However, those conditions must be no more onerous than is required to reduce the likelihood of the risk in question, and must be reasonable, having regarding to the nature of the alleged offending and the circumstances of the applicant.[29]
[28]Ibid, s 5AAA(1).
[29]Ibid, s 5AAA(2).
When making a determination in relation to a child, the court is required to have regard to the matters listed in section 3B(1) of the Bail Act, namely:
…
(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;
…
(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—
…
(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—
…
(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.
The significance of section 3B(1) is evident from the fact that it is a standalone provision, as opposed to being incorporated into the broader list of surrounding circumstances under section 3AAA(1).[30] Its significance is also confirmed by the fact that, following the recent reforms to the Bail Act, the considerations in section 3B(1) were expanded and modernised to ensure the provision properly accounts for the special needs and vulnerabilities of children, and the detrimental impact of remand on children.[31] Notably, subsections (b) to (j) must be taken into account whether or not any evidence or information in respect of these issues is put before the court.[32]
[30]Separate and in addition to the surrounding circumstance of special vulnerability of an accused due to being a child: Bail Act, s 3AAA(1)(h)(ii).
[31]Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2023, 2899.8 (Anthony Carbines).
[32]Bail Act, s 3B(1B).
The authorities indicate that an applicant’s status as a child will weigh heavily in favour of establishing exceptional circumstances, as children applying for bail are afforded a special status.[33] That said, this does not mean that the guiding principles under section 1B, including maximising community safety, do not apply in cases concerning children.[34]
[33]Re JO [2018] VSC 438, [14] (T Forrest J). In relation to children seeking bail on the basis of exceptional circumstances, see also: FT v The King [2024] VSCA 90 (Beach, McLeish and Niall JJA); 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).
[34]Re AM [2020] VSC 569, [66] (Tinney J).
In making a determination in relation to a child, the court may also take into account any recommendation or information contained in a report provided by a bail support service.[35] 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.[36]
D. Submissions
[35]Bail Act, s 3B(2).
[36]Ibid, s 12(4)(a).
D.1 GS’ submissions
In support of GS’ application for bail, it was submitted on his behalf at the hearings on 16 and 19 July 2024 that exceptional circumstances were established by the combined weight of several factors, namely:
(1)GS’ status as a child. Although the allegations are undoubtedly serious, consideration of GS’ rehabilitation and redirection away from the criminal justice system remain significant.
(2)The strength of the prosecution case. There are triable issues regarding the evidence said to identify GS as 1 of the accused involved in the alleged offending on 28 June 2024 and 2 July 2024. For example:
(a)The closed circuit television footage obtained in relation to the offending on 28 June 2024 does not positively identify GS at any of the offence locations, but at its highest shows a person the prosecution alleges has a similar appearance to GS;
(b)The only clothing found during GS’ arrest that bears resemblance to the First Set of Clothing was a pair of generic Nike runners;
(c)Heavy reliance is placed on the use of a white Kia Sportage during the offending alleged to have been committed on 28 June 2024, and a silver Volkswagen Passat during the offending alleged to have been committed on 2 July 2024. There does not appear to be any forensic evidence connecting GS to either of these vehicles;
(d)It is not alleged that any eyewitnesses are capable of identifying GS;
(e)Heavy reliance is placed on the Phone Monitoring Data in support of the contention that GS was at locations proximate to where the alleged offending occurred. This does not prove to the requisite standard that GS was physically present at any location, and the evidence relied upon is not currently in an admissible form; and
(f)Whether the messages found on the mobile phone of GS’ co-accused on 28 June 2024 are admissible will be an issue for any contested hearing.
(3)GS was not on bail at the time of the alleged offending. His previous compliance with Youth Justice supervised bail was submitted to be positive and it was noted that whilst on bail, he attended the majority of his appointments with Youth Justice and engaged well with his care team. It was conceded on his behalf however that he was the subject of a summons and 2 good behaviour bonds at the time of the alleged offending.
(4)GS has a special vulnerability, as he is a child from a culturally and linguistically diverse background.
(5)GS has been assessed as suitable for Youth Justice supervised bail and has demonstrated a willingness to engage in a Youth Justice bail program. GS’ initial Youth Justice supervised bail program was revised after the hearing on 16 July 2024 to constitute, in effect, an intensive supervised bail program involving significantly increased supports. Included as part of this proposal was enrolment at the Learning Centre, as well as regular appointments with case workers from the Centre for Multicultural Youth, Youth Justice Community Support Service and a clinician from the Youth Offending Program. It was further submitted that remand must be considered to be an option of last resort.[37]
(6)GS’ personal circumstances, including his age, his upbringing, his mother’s support and the educational and social supports available to him. One of the key new developments between the hearings on 16 July 2024 and 19 July 2024 was that GS had enrolled at the Learning Centre.
(7)GS’ limited criminal history. GS has a limited criminal history and has not before been sentenced to any of the supervisory orders that are available in the Children’s Court sentencing hierarchy. It was submitted that should GS be found guilty of the charges the subject of this application, it would be open to the court to sentence him to a penalty other than that of immediate detention, taking into consideration the therapeutic focus of the Children’s Court and the sentencing principles enshrined in sections 361 and 362 of the Children, Youth and Families Act. It was appropriately conceded on GS’ behalf that he has a relevant criminal history and the relevant offending allegedly occurred in breach of 2 good behaviour bonds. It was also conceded that he was subject to a summons at the time he was charged on 3 July 2024, however, it was submitted that these charges are contested on the basis of identification.
(8)GS’ time on remand would likely exceed any term of imprisonment ultimately imposed. GS was held in custody for 16 days between 3 July 2024 until 19 July 2024. The matter is currently at a preliminary stage and there will likely be further delays in the proceeding. In consideration of, amongst other things, GS’ limited criminal history, that he has never been subject to a supervisory order in the community, and specific deterrence and retribution would not apply to GS as a child as they otherwise might if he were an adult, and that the court would have to be satisfied that no less restrictive sentencing options were suitable before imposing a custodial sentence,[38] it was submitted that the imposition of a custodial sentence would be unlikely.
[37]Ibid, s 3B(1)(b).
[38]See s 361 of the Children, Youth and Families Act.
It was further submitted on GS’ behalf that any assessment of exceptional circumstances must be viewed through the lens of section 3B of the Bail Act, and that the matters outlined in that section make such a determination a different exercise in the case of a child.
It was submitted in this regard that granting bail would:
(1)Preserve and strengthen his relationship with his family by extending him the opportunity to return to the family home.
(2)Avoid further disruption to his living arrangements.
(3)Enable him to engage in education at his new school.
(4)Enable him to work with Youth Justice to obtain age-appropriate specialist support and culturally-safe referrals.
(5)Protect against the stigma and the potentially corrosive effect of an extended period on remand, given his circumstances and limited contact with the criminal justice system.
In relation to the question of unacceptable risk, it was submitted that whether GS posed an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act must also be considered in light of section 3B and the relevant surrounding circumstances. It was submitted that section 3B carried significant weight in this case and that any unacceptable risk could be reduced to an acceptable level if GS were to engage with Youth Justice as proposed, re-engage in education at the Learning Centre, reside at his family home with his mother who has agreed to report any breach of curfew to the informant and any other breach to Youth Justice, and agree to the imposition of strict conditions of bail.
The following conditions of bail were proposed on GS’ behalf, namely that he must:
(1)Reside at his family home.
(2)Abide by a curfew unless in the company of his mother or a nominee of Youth Justice.
(3)Attend and comply with all directives of the Youth Justice supervised bail program.
(4)Not associate with any co-accused.
(5)Not contact directly or indirectly any witness for the prosecution, except for the informant.
(6)Comply with any further conditions the court considers appropriate.
D.2 Prosecution’s submissions
In response, the prosecution submitted at the hearings on 16 and 19 July 2024 that GS had not discharged his burden of satisfying the court of the existence of exceptional circumstances to justify the grant of bail. The prosecution challenged the veracity of a number of the factors raised on GS’ behalf that were said to give rise to such circumstances.
The prosecution rejected the submission that GS’ compliance with the conditions of his previous grant of bail was positive. It was noted that between June 2023 and May 2024, GS accrued 9 charges of committing indictable offences whilst on bail.[39]
[39]See fn 2 above.
It was submitted that compliance with the conditions of any grant of bail was unlikely as the evidence suggests that GS engaged in the offending the subject of this application while being subject to 2 good behaviour bonds. Moreover, it was contended that he appears to come and go from the family home as he pleases, with his whereabouts and activities often unnoticed by his mother and outside of her control.
While the prosecution acknowledged that there are triable issues in this case, it was submitted that there is a “perfect sufficiency” of evidence in relation to proving the matters against GS, and that the case against him cannot be described as weak by any means. The prosecution intends to rely on various items of evidence to prove that GS was involved in the alleged offending the subject of this application. These include, but are not limited to, several witness statements, closed-circuit television footage, crime scene photographs and recovered vehicles, the Phone Monitoring Data and photographs taken as a result of a search warrant executed at GS’ address, including photographs of exhibits seized such as items of clothing alleged to have been worn by GS during the alleged offending.
It was submitted that the evidence identifying GS was strong. The prosecution relied on the Phone Monitoring Data from a number of the offence locations in combination with recovered text messages between GS and his co-accused, in submitting that the likelihood of the alleged offender identified as GS being someone else is reduced to “almost zero”.
Separately, the prosecution submitted that the views of victims are a relevant surrounding circumstance. For instance:
(1)One alleged victim expressed the view that he is worried that his stolen vehicle has not been recovered, that the incident has caused him to now be vigilant when locking doors at his home address, and he is concerned about the safety of his new neighbourhood having only moved to the area 1 week prior to the date of the alleged offending.
(2)Another alleged victim explained that the alleged offending has “put her on edge” particularly while at work, and that she is constantly looking over her shoulder and worried about a similar incident happening again.
(3)A third alleged victim believes that police have to show that they are protecting the community and keeping the public safe by keeping them in custody, and explained that he has been traumatised by the alleged offending and that the alleged offenders are “making a mockery of the system”.
(4)A fourth alleged victim expressed a desire for the alleged offenders to be offered guidance and help, that they have to be stopped and that “if they cannot stop then they should be in custody”.
(5)A fifth alleged victim expressed his fear that if the alleged offenders are granted bail they will “put someone else in harm’s way”.
Even if exceptional circumstances could be established, the prosecution submitted that GS posed a number of unacceptable risks within the meaning of section 4E(1) of the Bail Act and that neither the proposed conditions of bail, nor any other conditions were capable of ameliorating those risks to an acceptable level.
More particularly, it was submitted that GS posed an unacceptable risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means. This submission was made on the following bases:
(1)GS and his co-accused are charged with serious offences that placed members of the community at a substantial risk of harm. These include violent offences involving armed and aggravated robbery and burglary which on at least 1 occasion, included a threat made by the alleged offenders to stab 1 of the victims.
(2)GS has a troubling prior criminal history not dissimilar to the allegations currently before the court.
(3)GS and his co-accused have allegedly stolen numerous vehicles. As GS and his co-accused are young, unlicensed and inexperienced, they have put other road users at serious risk of harm.
(4)GS and his co-accused appear to have largely targeted stores that are open for business with employees and members of the public present. These incidents have had long lasting effects on victims and witnesses, causing ongoing trauma and stresses, financial burdens for employees who have been unable to return to work, as well as financial burdens associated with damage caused and theft of large quantities of items of significant monetary value.
(5)There are no conditions of bail that could mitigate the risks GS poses to the community to an acceptable level. He has demonstrated a complete disregard for court orders and the conditions of an earlier grant of bail. In addition, although GS has previously been on remand on 3 occasions, being between 18 August 2023 and 31 August 2023, between 17 October 2023 and 26 October 2023, and between 13 February and 22 February 2024, these periods of remand do not appear to have had a salutary effect on GS.
It was also submitted that GS posed an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter. If released on bail, it was submitted that GS would continue to associate with at least 2 of his co-accused, and that this presented a heightened risk of reoffending. Both co-accused have a longstanding relationship with GS and are implicated in his prior matters. One of them is GS’ cousin.
Finally, it was submitted that GS would, if released on bail, fail to surrender into custody in accordance with the conditions of bail. This submission was also made on the basis of GS’ disregard for court orders and the conditions of an earlier grant of bail.
E. Consideration as at 19 July 2024
E.1 Exceptional circumstances
A substantial body of further evidence was adduced on 19 July 2024. This included evidence from a senior practice advisor at Youth Justice and the Lead Inclusion officer at the Learning Centre. In contrast to the position 3 days earlier, a more structured and intensive program was proposed for GS. As part of this program, enrolment at the Learning Centre and the availability of a number of other support services was confirmed.
Having considered all the relevant circumstances, including the surrounding circumstances in section 3AAA of the Bail Act and the matters specified in section 3B, I was satisfied that exceptional circumstances existed to justify the grant of bail. Although the nature of the alleged offending is serious and the prosecution case cannot be described as weak, exceptional circumstances were established by the combined weight of several factors including GS’ status as a child, his personal circumstances including his upbringing and background and his ability to return to the family home, his difficulties with education (including those arising from the COVID-19 restrictions), the level of support offered by Youth Justice, the Learning Centre and other services, as well as the fact that GS’ time on remand if bail were refused would likely exceed any term of imprisonment imposed.
E.2 Unacceptable risk
It was also determined that any risk would not be unacceptable if bail were granted for only 1 week on stringent conditions.[40] This was appropriate in the circumstances of this case to allow GS an opportunity to demonstrate compliance with the conditions of bail, notwithstanding the clear risks he posed at that time. The grant of bail for 1 week was also appropriate to allow GS’ care team to demonstrate the efficacy of the proposed bail program and associated support services.
[40]See Re FT [2024] VSC 158, [51], citing Re KA (No 2) [2022] VSC 363, [12] (Beach JA).
The following conditions were agreed to by GS at the hearing on 19 July 2024:
(1)Reside at [his family home] (“the Residence”).
(2)Comply with the Youth Justice supervised bail program annexed to the Youth Justice addendum bail service report dated 18 July 2024, at pages 10 and 11, and marked as “Exhibit C” in this proceeding.
(3)Comply with all lawful directions of Youth Justice.
(4)Remain at the Residence between the hours of 7.00pm and 7.00am each day (“the Curfew Hours”) for the duration of bail.
(5)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.
(6)Not drive a motor vehicle.
(7)Not be present in any stolen motor vehicle.
(8)Not leave the State of Victoria.
(9)Not attend any port, airport or international point of departure.
(10)Not contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant.
(11)Not contact or associate with, either directly or indirectly, any co-accused.
(12)Appear before this court for judicial monitoring by audio-visual link to review his compliance with these orders at 4.30pm on 23 July 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 26 July 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.
In addition, a representative of Youth Justice gave an undertaking to report any non-compliance with bail conditions to the informant. GS’ mother also undertook to report any non-compliance with the curfew condition, as well as to notify Youth Justice each time GS left or returned home for the purpose of attending school or appointments that he would be required to attend in accordance with his Youth Justice supervised bail program.
Both GS’ counsel and GS himself informed the court that GS understood the conditions of bail and would comply with them. Further, GS was warned of the serious consequences if he failed to comply with the conditions of bail.
F. Further hearing on 26 July 2024
Bail was only granted on 19 July 2024 up to 10.00am today. GS 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. Further evidence concerning GS’ compliance and ongoing care
In advance of the hearing today, a further report by Youth Justice was filed with the court on 25 July 2024. The report outlined, amongst other things, that:
(1)Since his release on bail on 19 July 2024, GS had attended both of his scheduled supervision appointments with Youth Justice.
(2)GS had attended all other scheduled appointments with workers from Youth Justice Community Support Service and the Centre for Multicultural Youth.
(3)GS had attended school on 23 and 25 July 2024 for outreach classes with the Learning Centre.
(4)To the knowledge of Youth Justice, GS had complied with his curfew and non-association conditions of bail to date.
(5)GS continues to be supported by his mother and resides at the family home in Cranbourne.
(6)GS has reported that he is very busy and that this is helping him make sure he stays home and follows all his set bail conditions.
H. Further submissions
In circumstances where there has been faultless compliance with the bail conditions for the past week, it was submitted on behalf of GS that both exceptional circumstances had been established and that the prosecution had not shown GS was an unacceptable risk. The undertakings previously provided by GS’ mother and the representative of Youth Justice were again provided on the same terms.
In these circumstances, the prosecution did not oppose the further application for bail.
Consideration of application for further grant of bail
Having considered all the relevant circumstances, including the surrounding circumstances in section 3AAA of the Bail Act and the matters specified in section 3B, I am again satisfied that exceptional circumstances exist substantially for the same reasons as previously found on 19 July 2024.[41]
[41]See pars 148-152 above.
Further, in light of GS’ compliance with his conditions of bail during the 1 week period of bail, his positive and courteous approach with those assisting him since bail has been granted, and the considerable level of support he continues to receive from Youth Justice, the Learning Centre and other services, and his family members, I am again satisfied that if bail were to continue on largely the same conditions, the risk posed would be reduced to an acceptable level.
That said, it is appropriate to continue with judicial monitoring for at least another week. The matter will be listed again next week for that purpose.
J. Conclusion
For the reasons stated, upon the previous undertakings again being given to the court, GS’ further application for bail will be granted on the following conditions, namely that GS must:
(1)Reside at [his family home] (“the Residence”).
(2)Comply with the Youth Justice supervised bail program annexed to the Youth Justice supervised bail progress report dated 25 July 2024, at page 5, and marked as “Exhibit G” in this proceeding.
(3)Comply with all lawful directions of Youth Justice.
(4)Remain at the Residence between the hours of 7.00pm and 7.00am each day (“the Curfew Hours”) for the duration of bail.
(5)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.
(6)Not drive a motor vehicle.
(7)Not be present in any stolen motor vehicle.
(8)Not leave the State of Victoria.
(9)Not attend any port, airport or international point of departure.
(10)Not contact or associate with, either directly or indirectly, any witness for the prosecution other than the Informant.
(11)Not contact or associate with, either directly or indirectly, any co-accused.
(12)Appear before this court for judicial monitoring by audio-visual link to review his compliance with these orders at 3.00pm on 1 August 2024, and any further dates this court appoints during the course of these orders.
(13)Attend the Children’s Court of Victoria at [location] on 8 August 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.
---
Annexure A: Summary table of prior criminal history and alleged offending to date[42]
[42]The information set out in this table is not exhaustive and is only intended as a general summary.
| DATE | LOCATION | EVENT | OTHER MATTERS |
| 18 April 2023 to 14 July 2023 | Various | GS was placed on a diversion program (which he successfully completed) in respect to various offences alleged to have been committed between 18 April 2023 and 14 July 2023.[43] | Informants Harris, Farano, Ballintyne and Sutherland |
| 17 October 2023, approximately 2.54am | Hawthorn East | GS allegedly committed home invasion and theft of a motor vehicle at a residential address. He was later placed on a good behaviour bond on 12 January 2024 in respect to these alleged offences (as detailed below). | Informant Newsome |
| 17 October 2023, approximately 6.30am | Glen Waverley | GS allegedly committed aggravated burglary and theft at a residential address. A handbag, PlayStation 5 and keys to 2 vehicles were reported stolen. He was later issued with a summons to answer in respect to these alleged offences (as detailed below). | Informant Kos |
| 17 October 2023, approximately 10.45am | KFC in Pakenham | GS was arrested and released on a summons to answer charges in relation to offending alleged to have been committed earlier that day. | Informant Kos |
| 13 November 2023 | Bentleigh East | GS allegedly committed 2 counts of theft of a motor vehicle at a residential address. He also allegedly committed an indictable offence while on bail. He was later placed on a good behaviour bond on 12 January 2024 in respect to these alleged offences (as detailed below). | Informant Scalzo |
| 12 January 2024 | Children’s Court | GS was released without conviction on a good behaviour bond until 13 September 2024 in relation to the offending alleged to have occurred in Hawthorn East on 17 October 2023 and Bentleigh East offending alleged to have occurred on 13 November 2023. | Informants Newsome and Scalzo |
| 12 and 13 February 2024 | Bayside suburbs of Melbourne | GS allegedly committed aggravated burglary and attempted aggravated burglary at a residential address. Clothing, car keys and vehicles were reported stolen. He was later placed on a good behaviour bond on 17 May 2024 in respect to these alleged offences (as detailed below). | Informant Newsome |
| 9 May 2024 | Not applicable. | GS was made subject to a summons to answer in relation to offending alleged to have been committed on 17 October 2023. | Informant Kos |
| 17 May 2024 | Children’s Court | GS was released without conviction on a good behaviour bond until 9 May 2025 in relation to offending alleged to have been committed in various bayside suburbs of Melbourne on 12 and 13 February 2024. | Informant Newsome |
| 28 June 2024, approximately 12.30am | Hawthorn East | GS allegedly committed attempted aggravated burglary at a residential address. | Informant Greatorex |
| 28 June 2024, approximately 2.09am | Eltham | GS allegedly committed aggravated burglary at a residential address. No items were reported stolen. | Informant Greatorex charge 1 |
| 28 June 2024, approximately 3.00am | Chirnside Park | GS allegedly committed theft of a wallet from a motor vehicle parked in the driveway of a residential address. | Informant Greatorex charge 18 |
| 28 June 2024, approximately 3.05am | Chirnside Park | GS allegedly committed aggravated burglary at a second residential address in Chirnside Park. A vehicle was stolen. | Informant Greatorex charges 2 and 3 |
| 28 June 2024, approximately 3.15am | McDonalds in Chirnside Park | GS allegedly committed aggravated burglary at a fast food restaurant. Cash was stolen. | Informant Greatorex charge 4 |
| 28 June 2024, between approximately 4.00am and 4.40am | Glen Iris | GS allegedly committed attempted aggravated burglary at a residential address. No items were reported stolen. | Informant Greatorex charge 19 |
| 28 June 2024, between approximately 4.00am and 4.40am | Glen Iris | GS allegedly committed attempted aggravated burglary at a second residential address in Glen Iris. No items were reported stolen. | Informant Greatorex charge 20 |
| 28 June 2024, between approximately 4.00am and 4.40am | Glen Iris | GS allegedly committed aggravated burglary at a third residential address in Glen Iris. A Volkswagen sedan and a Volkswagen Passat station wagon were reported stolen. | Informant Greatorex The Volkswagen Passat that was reported stolen was allegedly used during the alleged offending on 2 July 2024. |
| 28 June 2024, approximately 5.40am | Milk bar in Brighton East | GS allegedly committed attempted burglary. | Informant Greatorex charges 5 and 6 |
| 28 June 2024, approximately 5.44am | Coles Express service station in Hampton | GS allegedly committed attempted burglary at a service station. | Informant Greatorex charge 7 |
| 28 June 2024, approximately 6.00am | Ampol service station in Cheltenham | GS allegedly committed aggravated burglary and theft at a service station. Cash and cigarettes were reported stolen. | Informant Greatorex charges 8 and 9 |
| 28 June 2024, approximately 6.09am | Shell service station in Heatherton | GS allegedly committed robbery at a service station. Cash and cigarettes were reported stolen. | Informant Greatorex charge 10 |
| 28 June 2024, approximately 6.34am | BP service station in Mount Waverley | GS allegedly committed robbery at a service station. Cash was reported stolen. | Informant Greatorex charge 11 |
| 28 June 2024, approximately 7.14am | Ampol service station in Forest Hill | GS allegedly committed robbery at a service station. Cash was reported stolen. | Informant Greatorex charge 12 |
| 2 July 2024, approximately 5.11am | Shell service station in Greensborough | GS allegedly committed aggravated burglary and theft at a service station. Cash and cigarettes were reported stolen. | Informant Greatorex charges 13 and 14 |
| 2 July 2024, approximately 6.40am | Ampol service station in Monbulk | GS allegedly committed robbery at a service station. Cash and a set of car keys were reported stolen. | Informant Greatorex charges 15 and 16 |
| 3 July 2024 | GS’ family home | GS was arrested, charged and remanded in custody. | Informant Greatorex |
[43]I have had regard to s 356I of the Children, Youth and Families Act in considering these matters.
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