Re Ha
[2021] VSC 96
•26 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0025
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by HA |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2021 |
DATE OF JUDGMENT: | 26 February 2021 |
DATE OF REASONS | 4 March 2021 |
CASE MAY BE CITED AS: | Re HA |
MEDIUM NEUTRAL CITATION: | [2021] VSC 96 |
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CRIMINAL LAW – Bail – 15 year old, intellectually disabled Aboriginal offender – Wide array of alleged offending – Successive grants of bail on strict conditions – Disregard for strictures of bail – Absconding from care and in breach of curfew condition – Youth Justice still supportive of bail – Attempts to reunite applicant with father – Same conditions of housing and supervision proposed as existed previously – Custodial sentence unlikely – Exceptional circumstances established – Unacceptable risk made out by respondent – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood | Kurani Legal Practice |
| For the Respondent | Ms A Buzo | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
The applicant, a 15 year old child of indigenous heritage, applied for bail in respect of a large number of charges arising from four separate bouts of alleged criminality laid by four different informants. I will turn to the charges shortly.
It was agreed between the parties that because the applicant was accused of Schedule 2 offences under the Bail Act 1977 (‘the Act’) committed while he was on bail for a Schedule 2 offence, bail was required to be refused unless the applicant satisfied the Court that exceptional circumstances existed that justified the grant of bail. If the applicant was able to overcome the hurdle constituted by that first step in the bail process, I would be required to refuse bail if satisfied by the respondent that there would be an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any person or commit an offence while on bail.
Having heard the application, I was satisfied that the applicant had established the existence of exceptional circumstances that would justify the grant of bail. However, I was further satisfied of the existence of an unacceptable risk. I therefore refused bail. I indicated at the time that I would publish detailed reasons for my decision in future. These are those reasons.
Procedural background
Between July and December 2020, the applicant was charged and released on bail on three succeeding occasions in respect of the first three groups of charges. When bailed on 17 July 2020, and on the last occasion on 29 December 2020, the conditions included a curfew between the hours of 8.00pm and 7.00am. On 8 January 2021, the applicant was arrested and charged with the final group of charges laid by the informant Constable Kyle Spiliopoulos. Bail was refused in the Children’s Court on those matters and bail was revoked in respect of the three other groups of charges, and numerous other charges to which I will later refer. A further unsuccessful application for bail was brought in the Children’s Court on 20 January 2021. Bail was refused on each occasion because the learned Magistrate was not satisfied that the applicant had shown exceptional circumstances, and was satisfied that he posed an unacceptable risk.
At the time of the hearing before me on 26 February 2021, the applicant had been in custody for a period of 50 days including the day of the hearing. The charges were next listed for hearing in the Children’s Court on 2 March 2021 for contest mention, that is, only a few days following the hearing.
There are two co-accused in the Spiliopoulos matters. At the time of the hearing, both co-accused were still on remand.
Background to current offending
At the time of the alleged offending, the applicant had no previous convictions, but was subject to 18 active grants of bail and a further summons to appear. The bulk of these matters were resolved in a consolidated plea in the Children’s Court on 4 February 2021. On that day, the applicant pleaded guilty to 9 charges including theft, committing an indictable offence whilst on bail (2 charges) and assaulting a police officer. These charges were found proven and dismissed, taking into account the 27 days spent on remand. On the same date, the applicant was placed on diversion for numerous other matters arising from 14 separate briefs. Again on the same date, charges arising from four separate briefs were struck out on the basis of a finding of doli incapax.
There remain a number of outstanding charges where the applicant is on summons. These charges were laid by two separate informants, Senior Constable Eustace (‘the Eustace matters’) and Constable Harding. The charges comprise six charges of criminal damage, one of burglary, one of theft, and two of committing an indictable offence whilst on bail with offence dates in August and October 2020. The Eustace matters are particularly serious, involving the applicant destroying three vehicles by fire having absconded from his residential unit, or from the care of supervisors, during the hours of his curfew.
The alleged offending
Informant Detective Senior Constable James Pett matters
It is alleged that at approximately 9.45pm on 16 July 2020, the applicant followed the female complainant through a carpark in Vickery Street, Bentleigh, while in possession of a metal pole with a scissor blade attached to it. While wielding the pole, he allegedly told the complainant that he needed money. At this time, the applicant’s carer AB intervened as the applicant attempted to strike the complainant with the pole. AB ushered the applicant away towards Centre Road as the complainant left the area and contacted the police.
The police attended a short time later and arrested the applicant. AB provided the scissor blade to police and the metal pole was recovered nearby. The applicant was transported to the Moorabbin Police Station where he was held in custody overnight and charged the following day. He was on bail in a number of matters at the time of the alleged offending in this matter that have since resolved.
The applicant was remanded in custody and granted bail in the Children’s Court on 21 July 2020.
Informant Senior Constable Anthony Hermans matters
At approximately 7.00pm on 9 October 2020, the applicant allegedly attended a Domino’s restaurant located on Centre Road, Bentleigh. It is alleged that he attempted to gain access to two vehicles parked at the rear of the premises before forcing entry to the second floor of the building by smashing a window. Once inside, he allegedly walked around the second floor of the premises for a short time and opened a front window before leaving.
The Domino’s store manager discovered the damage at approximately 7.45pm. He reviewed CCTV footage and observed a male entering the property. He contacted the police, who attended a short time later.
The applicant entered the restaurant again at approximately 9.56pm and attempted to purchase food. The manager recognised him from the CCTV footage and contacted the police. The applicant was arrested and conveyed to the Moorabbin Police Station. During his police interview, the applicant admitted to smashing a window at the rear of the Domino’s store to find a toilet. He denied entering the property. He informed police that he had attempted to open the doors to two cars parked behind the store so he could tell the vehicle owners that their cars were unlocked.
He was remanded in custody and granted bail in the Children’s Court on 12 October 2020.
It is worth noting that in the informant’s report exhibited to the affidavit in opposition to bail, Senior Constable Stephens stated the following in connection with the applicant’s conduct towards police in the Hermans matters:
Whilst in attendance at the station, the applicant demonstrated a poor attitude towards police and his offending stating to police that they were wasting their time as none of the charges would stick. When asked why he thought this, the applicant stated it was due to his doli incapax, that because of his age he doesn’t know right from wrong.[1]
[1]At [20].
Informant Senior Constable Emily Stephens matters
At around 6.45pm on 25 December 2020, the applicant allegedly attended an address at 4/37 Potter Street, Dandenong, located approximately 750 metres from his residence. He allegedly gained access to the property via an unlocked door before removing a set of keys from inside the house. It is alleged that the applicant used the keys to gain access to a Toyota Hilux parked in the driveway of the property and drove the car away before losing control and hitting a Nissan Navarra parked across the road, causing damage to both vehicles. A witness filmed the applicant walking away from the scene with her mobile phone and provided the footage to police.
The applicant was arrested at his Dandenong residence at approximately 7.35pm and taken to the Dandenong Police Station. He was wearing the same red shorts depicted in the footage captured by the witness and the runners he was wearing in the video were located in his bedroom. During his police interview, he said that an individual he had met during the evening was responsible for breaking into the Potter Street property and stealing the vehicle. The applicant stated that he was a passenger in the stolen car.
The applicant was charged on 26 December 2020 and remanded in custody. He was granted bail in the Dandenong Children’s Court on 29 December 2020.
Informant Constable Kyle Spiliopoulos matters
It is alleged that two days after this most recent grant of bail the applicant stole a black Dodge vehicle from the driveway of an Eaglehawk residence between 9.30pm on 31 December 2020 and 12.00am on 1 January 2021. The Dodge was reportedly involved in a number of incidents after this time and was recovered on a Bentleigh Street on the evening of 1 January 2021, having been destroyed by fire. On the same day, the applicant allegedly stole a Toyota Camry from Moorabbin containing credit cards belonging to the vehicle’s owner. While in the company of two co-offenders, the applicant allegedly used those credit cards to make purchases on 1 and 2 January 2021 totalling $566.90. The group were captured on CCTV at the locations of the relevant purchases travelling in the stolen Camry.
At approximately 12.30pm on 2 January 2021, the applicant was captured on CCTV attending a Mentone Bunnings store in the company of two co-offenders. The group left the store in a stolen Hyundai ix35. The stolen Toyota Camry was left behind in the Bunnings carpark.
At approximately 8.30pm on 2 January 2021, the applicant and his two co-offenders allegedly attended a property in Mornington in the stolen Hyundai ix35. It is alleged that the applicant and one of his associates exited the car and attempted to gain entry to three other vehicles before being disturbed by a witness. The group fled the scene in the Hyundai ix35. The applicant and a co-offender then drove to an address in Mount Martha, where the pair were captured on CCTV gaining entry to a Mitsubishi Outlander parked in the driveway of the address. They allegedly removed remote controls to the garage and gate of the property from that car.
At approximately 9.10pm, police observed the stolen Hyundai in Mornington and attempted to pull the car over. The car took off at speed and was next observed attending a residence in Carrum Downs at 4.45am on 3 January 2021. It is alleged that the applicant and a co-offender exited the vehicle and gained access to the property by cutting a window fly screen. Once inside, the pair allegedly removed a set of Mercedes Benz keys before being disturbed by the occupants of the address, causing them to flee in the Hyundai.
The applicant was subsequently arrested in the vicinity of his Dandenong residence and conveyed to the Dandenong Police Station. He made partial admissions to the offending during his record of interview, advising police that he was present when purchases were made using the stolen credit cards, admitting to being present when property was removed from several vehicles and stating that he was a passenger in the Hyundai when it sped away from police. He admitted to being present during the aggravated burglary in Carrum Downs, but stated that he was ‘only standing at the door’. He otherwise denied his involvement in the theft of the three vehicles.
The applicant was charged with these matters on 8 January 2021 and was refused bail in the Dandenong Children’s Court the same day. Bail was revoked in the matters of informants Pett, Hermans and Stephens at the same hearing.
Personal circumstances
The applicant is 15 but was 14 at the time of the informant Pett and Hermans matters. He is Aboriginal.
He is currently subject to a Care by Secretary Order, and prior to his remand, resided in a residential care unit in Dandenong, supported by an extensive care team. He has lived at this unit since August 2020. He has experienced significant instability throughout his childhood and has been subject to numerous protection applications and out of home care placements. He has a brother and half-sister, neither of whom appear to be in the care of his parents. The applicant is currently the respondent to an active final family violence intervention order in which his brother is the affected family member.
The applicant has an intellectual disability, having been assessed as having a full-scale IQ of 57, abstract verbal reasoning skills equivalent to a six year old child, and severe global speech and language disorder. He has a current diagnosis of attention deficit hyperactivity disorder and a previous diagnosis of post-traumatic stress disorder (‘PTSD’). His PTSD relates to his past experiences of emotional, physical, and sexual abuse, as well as exposure to parental substance abuse and neglect. Three psychological assessments and a report detailing his developmental history and mental health diagnoses have been provided in support of his application for bail.[2]
[2]Exhibit JC-10 of Affidavit in Support, Report of Berry Street Take Two, 25 September 2017; Exhibit JC-8 of Affidavit in Support, Report of Carolyn May, 26 April 2018; Exhibit JC-9 of Affidavit in Support, Report of Aaron Cunningham, 10 May 2018; Exhibit JC-11 of Affidavit in Support, Report of Ms Carla Lechner, 24 February 2020.
The applicant was recently enrolled at a special development school in the south eastern suburbs but has not been able to attend due to his remand. He was previously enrolled at a different special development school for approximately 18 months.
The applicant self-reports previous use of cannabis and methamphetamine in the company of other peers.
The law
In applying and interpreting the Act, the Court was required to have regard to the guiding principles set out in s 1B of the Act, which include a recognition by Parliament of the importance of matters including maximising community safety to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty. Section 4 of the Act dictates that a person is entitled to be granted bail ‘unless the bail decision maker is required to refuse bail by this Act’. In a number of situations set out in the Act, the law requires bail to be refused unless the bail decision maker is satisfied of the existence of either exceptional circumstances or a compelling reason that would justify the grant of bail. As already noted, this was a case in which the exceptional circumstances test applied.
If satisfied of the existence of exceptional circumstances, the Court was required to move to step 2 of the analysis, the unacceptable risk test. Section 4E(1) of the Act required the Court to refuse bail if satisfied that there is an unacceptable risk of one of a number of eventualities.
The respondent bore the burden of proof in respect of the unacceptable risk test if that test arose for consideration. In considering the test, the Court was required to take into account the surrounding circumstances pursuant to s 3AAA. The Court would also be required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it would not be an unacceptable one.
Of great importance in my consideration of this application were the following two provisions of the Act:
3A 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.
3B Determination in relation to a child
(1)In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act)—
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
…
Filed material and sworn evidence
The application was supported by the affidavit of James Cameron affirmed on 11 February 2021 and exhibited material including a number of psychiatric assessments of the applicant. The most recent assessment by a clinical psychologist, Ms Carla Lechner established an IQ of 57, placing the applicant in the mildly to moderately intellectually disabled range of intelligence. He was considered to perform well below his age average across all aspects of cognitive functioning. Lechner noted that the applicant’s abstract verbal reasoning skills ‘are commensurate with those of an average six-year-old child’.
A Youth Justice Bail Service Report[3] (‘the bail report’) prepared by Amanda Pennacchia and dated 24 February 2021 was tendered during the hearing through Ms Pennacchia, who has been the applicant’s advanced case manager since June 2020. The report recommended the applicant as suitable for bail services. In the report, Ms Pennacchia stated that the applicant had been assessed as having the equivalent functioning of a 4-6 year old child, based, seemingly, on the report of Lechner. The report indicated that the applicant had been on Youth Justice Supervised Bail since June 2020. It was proposed that he would return to his previous placement in Dandenong through the Keys Therapeutic Residential Program, which was described in the report as being ‘a stable and supporting placement’. It was proposed that if released on bail, the applicant would travel straight to a town in country Victoria for supervised, overnight, weekend contact with his father, ‘to minimise his immediate risk of absconding from placement’. The author of the report acknowledged that whilst the applicant had stated that he would be able to meet the conditions of bail:
given his intellectual disability and overall disability needs, this may be difficult for him and require flexibility from the courts and the wider care team.[4]
[3]Exhibit 1.
[4]Ibid, page 2.
In her report, Ms Pennacchia acknowledged the applicant’s apparent difficulty maintaining compliance with bail conditions, particularly his curfew.
In her sworn evidence before me, Ms Pennacchia indicated that when she first became the applicant’s case manager, she acted on the request of the sitting Magistrate that she take a hands-off approach so as not to overload the applicant, who had an extensive team at the time. Since he had been on remand, she had had more to do with him, endeavouring to meet with him weekly. She gave very detailed evidence about the high level of supervision and care the applicant had received in the past, and would in the future. The one significant change in this was the recent acquisition of support from the National Disability Insurance Scheme (‘NDIS’).
Ms Pennacchia stated her view that the applicant is a young person who is vulnerable to the influence of others, including adults and young people known to Youth Justice, and in particular, would be vulnerable in custody. In the custodial setting, he had in fact isolated himself from other young people, and had gravitated to unit supervisors and managers. He had been the victim of one assault.
Ms Pennacchia put forward a detailed plan to have the applicant, if granted bail on the day of the hearing – a Friday – collected at Parkville by two NDIS workers who would likely be unknown to him, and driven straight to a country Victorian town where he would spend some days having supervised contact with his father, while himself staying in a hotel with the workers. The twin purposes of this trip would be to try to break the cycle of the applicant breaching bail shortly after his release, and to advance the prospect of reunification with his father. She noted that there were no plans on foot, however, for this reunification to proceed to the extent of the applicant living with his father.
After this country visit, the plan would be for the applicant to return to the residential care unit where he was living at the time of most of the present offending.
In cross-examination, Ms Pennacchia acknowledged the difficulties the applicant has had over the years in building relationships with new workers. She noted also his tendency to abscond from placements, frequently over weekends. In the six months he had lived at his current placement in Dandenong, he had been reported missing on 43 occasions, notwithstanding the high level of support and supervision he had received there. She stated that in the supervision sessions she had had with the applicant, she would typically speak to him for about 15 to 30 minutes.
In response to questions from me, Ms Pennacchia acknowledged that if the applicant was released on bail, not only would he return to live at the same placement where he had lived at the time of most of the offending, but that some of the young persons with whom he had absconded and allegedly offended would still be there.
In opposing bail, the respondent relied on the affidavit of Paul Collins affirmed on 23 February 2021. Exhibited to this affidavit was the detailed report of Senior Constable Stephens (‘Stephens’), one of the informants. The report set out the history of the applicant’s alleged offending and grants of bail. The author took issue with the suitability of the proposed living arrangements for the applicant, noting that a prolific young offender who was a co-accused of the applicant in one of the current matters still resides there, that the applicant has absconded on a large number of occasions, and asserting that there is insufficient supervision of the applicant at the facility, as evidenced by the circumstances of the Eustace matters. Stephens stated her view that no conditions of bail would control the applicant, as evidenced by his conduct in the past when he has been subject to Youth Justice Supervised Bail and stringent conditions, all of which have failed to curtail his offending.
In respect of unacceptable risk, Stephens expressed concern that the applicant would endanger the public, in light of the fact that his past offending involved the theft of vehicles which were then driven in a dangerous manner by an underage, unlicensed driver, and the use of a home-made weapon that had the potential to cause significant injury. As for the risk of reoffending, she noted that the Spiliopoulos charges occurred when the applicant was subject to no fewer than 19 separate grants of bail, including Youth Justice Supervised Bail. Furthermore, there are 14 charges of committing an indictable offence whilst on bail before the Court. Also, the bulk of the offending alleged in the Spiliopoulos matters occurred in breach of curfew.
The applicant’s submissions
Mr Smallwood for the applicant relied on most comprehensive and careful oral and written submissions. He relied on a combination of matters in proof of the existence of exceptional circumstances, and in resisting a finding of unacceptable risk. The matters were:
i. the applicant’s special vulnerability arising from his age, his Aboriginality, his intellectual disability, his disadvantaged background, and other diagnoses made in respect of him;
ii. the applicant’s vulnerability to the influence of others;
iii. the high level of support available to the applicant; and
iv. the fact that it is not likely that the applicant would receive a sentence of detention even if found guilty of all of the charges.
Mr Smallwood pointed to the last matter as being a powerful consideration in favour of the application being granted, relying in part on what was stated by Lasry J in R v Chung[5] as follows:
…if a period of pre-trial detention was expected to exceed the sentence likely to be imposed that will of course amount to an exceptional circumstance. If such a conclusion was indisputable there could be no question that bail should be granted.[6]
[5][2015] VSC 487.
[6]Ibid [35].
In fact, Mr Smallwood went as far as to submit that if the Court’s view was that the applicant would not receive a sentence of detention, it followed that he must be released on bail, as exceptional circumstances would be made out, and any risk would, by definition, not be an unacceptable one. Having said that, Mr Smallwood did continue to rely on a combination of factors throughout the application.
As it turned out, in light of the respondent’s position as to exceptional circumstances, and comments from the bench, the application very much centred on the question of unacceptable risk. On that score, Mr Smallwood acknowledged that there would clearly be a risk were the applicant to be released on bail, but pointed to the above four matters in arguing against its characterisation as ‘unacceptable’. As he put it, ‘in combination all of those factors inform the question as to where unacceptability lies’.[7]
[7]Transcript 45.
Mr Smallwood relied on a number of statements of Redlich J in Haidy v DPP,[8] as offering guidance in a consideration of whether a risk is unacceptable. One of the statements was that where an offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient to warrant a finding of unacceptable risk. In drawing attention to this passage, Mr Smallwood may have been responding to a concern expressed by me that, in light of the allegation of the applicant having stolen motor vehicles, and having driven them in a concerning fashion, including having crashed one during the course of the theft, that his conduct might expose someone to the risk of being killed or seriously injured. Mr Smallwood submitted such a concern would be speculative, and that such a risk might exist would not be a conclusion which was open to me.
[8][2004] VSC 247.
In further canvassing the question of unacceptable risk, Mr Smallwood highlighted what he described as matters of principle set out in Re Asmar,[9] Dale v Director of Public Prosecutions[10] and Re LD.[11]
[9][2005] VSC 487.
[10][2009] VSCA 212.
[11][2019] VSC 457.
Mr Smallwood submitted that the applicable principles reflect the flexibility of the unacceptable risk test. He submitted that in the end, the question in this case was whether the clear risk posed by the applicant of endangering the community or committing an offence while on bail ‘should be tolerated’.[12] He submitted that in all of the circumstances, the risk posed by the applicant should not be considered to be unacceptable.
[12]Transcript 61.
I should note that Mr Smallwood made it clear at the outset of the application that he would address no submissions to the Court to suggest that any perceived weakness in the prosecution case would weigh in the balance in relation to either of the two tests for bail in this application.
The respondent’s submissions
Ms Buzo for the respondent relied on comprehensive written submissions, supplement briefly by oral submissions before me.
Ms Buzo emphasised the guiding principles of the Act and conceded the importance of ss 3A and 3B. She conceded that on the available material, the applicant would be able to establish the existence of exceptional circumstances. Her focus, therefore, in the application, was on the question of unacceptable risk. On that score, she relied on the filed material as establishing an unacceptable risk of endangering the safety or welfare of any person, and committing an offence while on bail.
As to the first of these, Ms Buzo relied upon:
i. the serious nature of the offending;
ii. the use of a dangerous hand-made weapon to intimidate a member of the public;
iii. the serious impact that aggravated burglaries have on society;
iv. the dangerous driving in which the applicant is alleged to have engaged in stolen vehicles, placing other road users in danger and with the potential to be catastrophic;
v. the fact that the applicant is alleged to have offended in company with others, consistent with his past history; and
vi. the fact that the applicant continues to commit offences which place the safety and welfare of the community at risk.
In respect of the risk of reoffending, Ms Buzo submitted that he:
i. has shown that being on bail will not deter him from offending;
ii. faces 14 charges of committing an indicatable offence whilst on bail;
iii. has been charged 67 times with committing an indictable offences whilst on bail;
iv. was subject to 19 separate grants of bail including Youth Justice Supervised Bail at the time of the Spiliopoulus matters;
v. is the subject of understandable reservations by Youth Justice as to whether he is capable of meeting his bail obligations;
vi. allegedly offended in much of the Spiliopoulos charges in breach of his curfew; and
vii. will continue to offend despite the available support from Youth Justice Bail Services.
Ms Buzo then addressed a number of the considerations contained in s 3AAA of the Act. In short, she submitted that the offending alleged is serious on a number of scores, that the prosecution case is strong and that the bail history of the applicant is poor. She submitted that the proposed living arrangements for the applicant are not suitable, and would provide an ongoing opportunity for him to continue to offend, especially as he would be exposed to other prolific youthful offenders. He has not received adequate supervision, and this would continue to be the case in future.
Ms Buzo acknowledged the considerable importance of the age and Aboriginality of the applicant, and agreed that he would be unlikely to receive a custodial sentence.
Notwithstanding these and all of the other matters in favour of a grant of bail, the risk posed by the applicant was simply unacceptable.
Analysis
The law makes it very clear that bail applications relating to children are to be decided with the considerations touched on in s 3B of the Act firmly in mind. As Forrest J pointed out in Re JO,[13] children are rightly afforded a special status under the act, and:
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.[14]
[13][2018] VSC 438.
[14]Ibid [14].
So too, in this case, does the law require me to have regard to the Aboriginality of the applicant, albeit that it did not assume much prominence in the hearing of the application.
Giving full force to the special status of children and Aboriginal people, it cannot be forgotten, of course, that the Act is to be applied and interpreted having regard to the guiding principles contained in s 1B. One of these is the recognition by the Parliament of the importance of maximising the safety of the community to the greatest extent possible.
On any sensible view of it, there were very powerful matters pointing to the appropriateness of a grant of bail in this case. No legal officer would comfortably contemplate the prospect of a 15 year old, intellectually disabled, Aboriginal child with the background of the applicant, facing charges for which, upon findings of guilt, a custodial sentence would be unlikely, and who had already spent 50 days in custody, being detained in custody.
In this case, for the reasons advanced by Mr Smallwood, I was of the view that the applicant had passed the first hurdle in the two-step process of bail. I was satisfied of the existence of exceptional circumstances which justified the grant of bail.
That then led to the second step in the process. In deciding whether the respondent had established that the obvious risk posed by the applicant was an unacceptable one, I was required to have regard to the surrounding circumstances, including but not limited to those set out in s 3AAA of the Act.
Looking at some of those, I will commence with the nature and seriousness of the offending. Whilst it is obvious that much more serious offending comes before this Court in applications for bail, it was asserted on behalf of the respondent, and not seriously challenged by the applicant, that the alleged offending in this case is serious. It comprises a large number of separate acts of criminality involving dishonesty, unlawful intrusion into the homes of others, violence, the driving of stolen motor vehicles in problematic fashion, and the commission of indictable offences whilst on bail. It can comfortably be concluded that the offending is serious.
The strength of the prosecution case was not called into question. Ms Buzo submitted that the case was a strong one. There was no reason to doubt that.
As for the criminal history of the applicant, although he has no prior convictions as such, the current offending was but a part of an ongoing spree of offending encompassing a very large number of charges which have now been disposed of in one way or another. The history is a concerning one.
As to the history of the applicant on bail, it has been a very poor one. In short, the applicant has shown himself to have absolutely no regard for the strictures of bail. He has seemingly continued to offend in spite of the existence of numerous grants of bail with stringent conditions, which have wholly failed to curtail his conduct. In particular, he has repeatedly ignored curfew conditions in place designed to control him and to protect the community from his offending. The serious spree of offending constituted by the Spiliopoulos matters commenced within two days of the applicant’s release on bail under stringent conditions, the last of the four grants of bail in respect of the current charges.
Many factors may explain the poor conduct of the applicant where ongoing offending, and disregard for bail are concerned. His background is a very sad one. He is significantly intellectually disabled. He is emotionally and in every sense, immature, according to the assessment of him by Carla Lechner in February 2020. Ms Lechner considered him to have ‘very limited capacity for spontaneous engagement in reflective or consequential thinking’[15] and ‘acute difficulties with emotional regulation’.[16] She was of the view that ‘managing [the applicant] in the community, keeping him and others safe, remains a huge challenge’.[17] This view was perhaps in part due to the worrying conclusion reached by Ms Lechner that the applicant:
…does not really have or adhere to a moral code. There was no recognition of the importance of reciprocal relationships, no expressed fear of external consequences and no evidence at all of an internally developed moral code.[18]
[15]Exhibit JC-11 of Affidavit in Support, Report of Ms Carla Lachner, 24 February 2020, page 6.
[16]Ibid page 7.
[17]Ibid page 7.
[18]Ibid page 5.
I took strongly into account, as I was required to do, the sad personal circumstances of the applicant, and the special vulnerability to which he is subject on account of his young age, his Aboriginality, his intellectual disability, and the other matters advanced on his behalf. These were very weighty matters.
Furthermore, the prospect of steps being taken to reunite the applicant with his father is an important one. That said, little distance has been travelled down that path, and that remains for the future. Nothing about that could have much of an impact on the question of whether the risk posed by the applicant was an unacceptable one.
As for the availability of substantial bail and other supports for the applicant, I took these into account as well. It must be noted, however, that what was proposed in this application was little different from what was promised and offered in the past. There is no doubt at all as to the will of the authorities to do everything possible to assist the applicant. What is far less promising is his capacity or willingness to accept and take advantage of these services. The reality is that his most recent period on bail, during which almost all of the currently-available services were in place, was spectacularly unsuccessful.
Turning to the matters set out in s 3 AAA(1)(k) and (n), namely, the length of time the applicant is likely to spend in custody if bail is refused, and the likely sentence to be imposed should he be found guilty, the applicant had been in custody for 50 days at the time of my determination of the application. There was to be a contest mention in the Children’s Court three days after the hearing, at which, as I understood it, there was the prospect, but by no means the certainty, of resolution of the charges. Should the charges not be resolved, I acted on the basis that resolution of the charges may take two months or so. That would clearly be a significant period of time, especially for one so young as the applicant, but it is at least comforting that it is not a prospective delay of anything like the order seen in other jurisdictions, and there is no doubt that the Children’s Court would continue to carefully monitor the status of the applicant.
Bearing in mind the universal view before the Court that the applicant would be unlikely to receive a custodial sentence, the time he had already spent in custody, and may spend in custody were bail to be refused, was a very significant matter in the mix.
I accepted the submission of Mr Smallwood that the fact of the likely sentence in this case being a non-custodial one was a very powerful matter pointing to a grant of bail. I did not accept that it necessitated a conclusion that bail should be granted.
In my view, there was an air of unreality, perhaps desperation, to the proposal of Youth Justice that if released on bail, the applicant would immediately be taken to the country for several days of supervised contact with his father. The applicant has a well-established history of struggling to warm to new carers and new situations, and an equally well-established history of absconding from care and committing offences. Here, it was proposed that he be removed from custody, go into the care of persons whom he has never met, be taken to a place that would be foreign to him, and in that forced and uncomfortable way, renew contact with a father who has been a stranger to him for most of his life. That sounded to me like a recipe for disaster, bearing in mind that he was due to appear for a contest mention of his charges a few days following the application.
As for the proposal that the applicant be then returned to live in his previous residential care placement, in which placement he had allegedly carried out the bulk of the current offending, and that he live there again with some of his young co-offenders from the past, that did not seem to me to be an appropriate proposal at all.
In my view, the recent history of the applicant, including his very poor history on previous grants of bail, and all of the other circumstances of this case, raise it as a very real, if not almost inevitable, prospect, that the applicant may reoffend if released on bail at this time. Were he to reoffend, there would be a real, and by no means, unrealistic, risk, that members of the community may be endangered by his continued offending. Such a risk could not be described, in the words of Redlich J, as ‘a tenuous suspicion or fear of the worst possibility’. Rather, I saw the risk as a real and concerning one.
Conclusion
In the end, having considered all of the circumstances of this case, I was of the view that the risk posed by the applicant of endangering the safety or welfare of the public or committing an offence while on bail was unacceptable, and was incapable of being mitigated so as not to be unacceptable by the imposition of even the most stringent of conditions.
For the reasons I have stated, this application for bail was refused.
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