Re Ha (a pseudonym)
[2021] VSC 443
•27 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0196
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by HA |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2021 |
DATE OF JUDGMENT: | 27 July 2021 |
DATE OF REASONS: | 28 July 2021 |
CASE MAY BE CITED AS: | Re HA (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 443 |
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CRIMINAL LAW – Bail – Fifteen-year-old, intellectually disabled Indigenous applicant for bail – History of multiple breaches of bail despite intensive and long-term Youth Justice involvement – Increasing danger to himself and community – Exceptional circumstances conceded by respondent – Unacceptable risk made out by respondent – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D, 4E - Re HA (a pseudonym) [2021] VSCA 64 – Re HA (a pseudonym) [2021] VSC 96.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Radzaj | Kurnai Legal Practice |
| For the Respondent | Ms A Buzo | Victoria Police |
HIS HONOUR:
INTRODUCTION
The applicant in this bail application is a 15-year-old intellectually disabled Indigenous boy. He has been granted supervised bail on numerous occasions and repeatedly breached his bail.
On 10 March 2021, the Court of Appeal granted him bail in relation to 18 alleged offences including attempted armed robbery, assault with a weapon, burglary, motor vehicle theft, driving offences and multiple counts of committing an indictable offence whilst on bail.[1] Despite the considerable risk of the applicant reoffending if released on bail, the Court found that the applicant was not an unacceptable risk.[2] Central to that conclusion was that it was unlikely that he would receive a sentence of detention from the Children’s Court if found guilty of the alleged offences.[3] The Court indicated, however, that bail is not automatic in such circumstances, saying:
The [Bail] Act does not direct that bail must be granted in a case in which the length of time that an accused is likely to spend in custody if bail is refused would exceed the likely sentence that would be imposed should the accused be found guilty. Rather, s 3AAA(1)(k) and (l) specify that as a consideration which must be taken into account as part of the ‘surrounding circumstances’.[4]
[1]Re HA (a pseudonym) [2021] VSCA 64.
[2]Or more precisely that it was not reasonably open to Tinney J, who had refused bail (Re HA [2021] VSC 96), to find that the applicant was an unacceptable risk.
[3]Having regard to a number of matters, including the seriousness of the alleged offences, his limited antecedents, his difficult childhood and his intellectual disability.
[4]Re HA (a pseudonym) [2021] VSCA 64 [62].
On 13 July 2021 the applicant was again arrested and remanded in custody in respect of 14 alleged offences committed between 28 June 2021 and 13 July 2021, including an attempted carjacking (informant Whelan) and two counts of reckless conduct endangering serious injury (informant Muratovic). At the time of his arrest, the applicant was on bail and summons for various matters (see below).
A Children’s Court Magistrate heard a bail application by him on 14 July and an application by the police to revoke his bails and adjourned the applications part heard to 30 July 2021 pending a report by Youth Justice. The Magistrate remanded the applicant in custody. On 21 July 2021, the applicant lodged an application for bail with the Supreme Court. That application was supported by a Youth Justice Bail Service Report by Erin McGarva (Aboriginal Intensive Support Practitioner), also dated 21 July 2021. I heard the application for bail on 27 July 2021. Ms McGarva gave evidence for the applicant indicating that Youth Justice would provide a one-on-one carer for him but she did not know when exactly the carer would be appointed and how many hours he or she would work with the applicant.
Central to the applicant’s submissions at the bail hearing was the likelihood that he would not receive a sentence of detention if found guilty of the new alleged offences, a matter which was conceded by the respondent, who nonetheless submitted that the applicant was an unacceptable risk.
I gave brief oral reasons on 27 July 2021 for finding that exceptional circumstances were made out but that the applicant was an unacceptable risk to commit further offences and endanger members of the community if released on bail. In coming to those conclusions, I had regard to relevant sections of the Bail Act 1977 (Vic), namely, ss 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D and 4E. In refusing bail, I highlighted the danger posed by the applicant to himself and the community if released on bail and the uncertainty surrounding the appointment by Youth Justice of a one-on-one carer for the applicant. I said I would provide more detailed reasons later and do so now.
ALLEGED OFFENDING
As mentioned above, the applicant was on bail and summons for various matters when he was arrested and charged on 13 July 2021 by Whelan and Muratovic. I will not refer to all outstanding charges against the applicant, just ones that have arisen since the Court of Appeal granted him bail on 10 March 2021.
April
The informant Johnston alleges that between 11 and 23 April 2021 the applicant committed the offences of burglary (two counts), theft (two counts) and attempted burglary. The Johnston matters, which are proceeding by summons, are listed for further mention at the Korumburra Children’s Court on 16 August 2021.
The informant Stewart alleges that on 25 April 2021 the applicant committed the offences of burglary (three counts), attempted burglary and theft. The applicant was charged by Stewart on 3 June 2021[5] and granted bail on 4 June 2021.
[5]The charge sheets for this matter are dated 5 May 2021, however, the charges appear to have been laid on 3 June 2021.
The informant Lordanic alleges that on 28 April 2021 the applicant committed the offences of burglary and theft. He was charged on 3 June 2021[6] and granted bail on 4 June 2021.
May
[6]The charge sheets for this matter are dated 4 May 2021, however, the charges appear to have been laid on 3 June 2021.
The informant Houlahan alleges that between 31 May and 3 June 2021 the applicant committed the offences of criminal damage, theft of a motor vehicle, unlicensed driving, making a threat to kill (two counts) and making a threat to destroy property. He was charged on 3 June 2021 and granted bail on 4 June 2021.
June
The informant Whelan alleges that between 28 June and 13 July 2021 the applicant committed the offences of burglary, attempted carjacking, criminal damage, two counts of committing an indictable offence whilst on bail and stating a false name when requested.
July
The informant Muratovic alleges that on 2 July 2021 the applicant committed the offences of theft of a motor vehicle, theft, unlicensed driving, reckless conduct endangering serious injury (two counts), reversing a vehicle when unsafe, failing to stop after an accident and committing an indictable offence whilst on bail.
It was not submitted that the prosecution case on any of these matters is weak.
I will not summarise the alleged facts in relation to all these matters which postdate the Court of Appeal’s grant of bail, just the last three as they are most relevant to the danger the applicant poses to the community and himself. It is convenient to adopt the summaries from informant Whelan’s report. Also, for ease of reference I have kept Whelan’s paragraph numbering, although, to the extent possible, I have rearranged the matters in chronological order. I have underlined those parts where the applicant allegedly put persons in danger, including himself.
Informant Houlahan’s matters
82. On the 31st of May 2021, the applicant was present at the address of [CARER 1] and [CARER 2] as he wanted to remove himself from the care of [CARER 1] and [CARER 2].
83. The applicant confronted [CARER 1] whilst [CARER 2] was returning home, approaching [CARER 1] with a clenched fist whilst repeatedly banging his fist into his other hand. Whilst doing this the applicant has threatened to stab [CARER 1].
84. The applicant then gained access to a jerry can of fuel from the side of the house and poured it over the veranda whilst saying to [CARER 1] "I told you I would kill you, you thought I was joking didn't you". [CARER 1] slammed the door shut and told the applicant to stay outside, at which point the applicant shouted, "I'm going to kill you".
85. [CARER 1] made a phone call to [CARER 2] whilst this was occurring who overheard what was happening. [CARER 2] heard the applicant say, ''I'm going to stab you through the eye and kill you, then I'm going to take Rooster away".] heard [CARER 1] say to the applicant "What are you going to do when [CARER 2] comes home to which the applicant replied, ''I'm going to kill the cunt, like my father told me to". [CARER 2] also heard the applicant state "I'm now going to burn you, you cunt".
86. [CARER 2] returned home to find the applicant at the address with a black coloured BIC lighter in his hand. [CARER 2] confronted the applicant and wrestled the lighter from his hand as he was fearful the applicant would set the house alight. Shortly after the applicant became compliant and apologised.
87. On the 1st of June 2021, the applicant was in temporary foster care at [PLACEMENT ADDRESS 1] where he left the address at approximately 7:00pm on foot.
88. The applicant located and stole vehicle YBZ728 a red coloured Nissan Pulsar which had been parked in the carpark of IGA, Leongatha.
89. At approximately 10:00pm the applicant was observed by Leading Senior Constable's MICHEAL and GOUGH driving vehicle YBZ728 around a roundabout at Walkerville Road, Tarwin Lower with no other occupants in the vehicle.
90. The applicant drove away from Tarwin Lower to avoid being intercepted by Police who had activated their lights on the Police Divisional Van.
91. The applicant returned to Leongatha and parked vehicle YBZ728 at 43 McCartin Street which is a vacant property.
92. On the 2nd of June 2021, at approximately 11:45am Leading Senior Constable BAlDO and Senior Constable PATTERSON attended the property where vehicle YBZ728 was parked. Present at the address was the applicant, [ASSOCIATE 1] and [ASSOCIATE 2].
93. The applicant was arrested for Theft of Motor Vehicle and Burglary and was conveyed back to Wonthaggi Police Station. Whilst in custody the applicant told Police where vehicle YBZ728 was located.
94. The applicant was released into the care of DHHS at an address in [PLACEMENT ADDRESS 2].
95. On the 3rd of June 2021, at approximately 3:15pm Police were called to attend [PLACEMENT ADDRESS 2] where the applicant was currently residing due to reports of the applicant holding a screwdriver and damaging property.
96. Police made an application to remand the applicant who was held overnight for a direct present at the Wonthaggi Children's Court on the 4th of June 2021.
97. On the 4th of June 2021, the applicant applied for bail in the Wonthaggi Children's Court. His Honour Magistrate RALEIGH granted bail for the applicant to appear before the Korumburra Children's Court on the 21st of June 2021, with the following conditions:
a. Not to drive motor vehicles,
b. Not to use drugs,
c. Curfew Period 8pm and 6am,
d. Curfew Exemption Person: An employee or nominee of DHHS,
e. Reside as directed by DHHS,
f. Comply with Intervention Order made in case number M11162670 dated 04/06/2021,[7]
g. Not to enter the shire or South Gippsland or the Bass Coast shire other than to attend court.
[7]This is an intervention order for the benefit of the applicant’s former foster carers [CARER 1] and [CARER 2] whom it is alleged the applicant threatened to kill.
Informant WHELAN’s matters
14. On the 28th of June 2021 , the applicant attended Harrier Manor located at 128 Princes Highway, Dandenong and attended [CO-ACCUSED 1] room number 10.
15. CCTV depicts the applicant leaving room 10 and attending room 14 where victim Edward FISHER resides. Shortly after CCTV depicts the applicant riding a bike out of room 14. This bike was later located in the reception area of Harrier Manor.
16. CCTV depicts the applicant re-enter room 14, this is also observed by another resident who reports it to staff members. Staff members attended room 14, attempting to open the door however it was locked.
17. Staff members returned to room 14 with a key and opened to the door. Upon opening the door staff members observed the rear window open and a television missing with no one located inside of the room . This television was later located in the reception area of Harrier Manor covered with a blanket from [CO-ACCUSED 1] room.
18. CCTV depicts the applicant wearing a black coloured 'Nike' branded hooded jumper.
19. On the 17th of June 2021 , prior to the Burglary (as outlined in paragraphs 14 to 18 above) occurring the applicant was located after a Safe Custody Warrant had been issued. A photograph was taken by the applicant which depicted him at the time wearing a black coloured 'Nike' hooded jumper believed to be the same one as depicted in the CCTV footage from Harrier Manor.
20. On the 10th of July 2021 at approximately 7:05pm the applicant and [CO-ACCUSED 2] attended 7Eleven located on the corner of Clow Street and Stud Road, Dandenong. Victim Said ABUKHADER and Witness Tony KRASNIQI were present at the 7Eleven having arrived in vehicle 1RX5FZ being a silver coloured Holden Astra.
21. At approximately 7:20pm ABUKHADER and KRASNIQI attempted to leave the 7Eleven utilising the Stud Road exit to leave. CCTV depicts the applicant and co-accused walking behind the vehicle as it reverses out of the carpark with the co-accused pulling down a black coloured balaclava to conceal his face. The applicant and co-accused run after the vehicle as it is driving out.
22. Whilst ABUKHADER is stationary giving way to oncoming traffic the applicant and co-accused run up to vehicle 1RX5FZ and pull the door open. Whilst the door was open the co-accused yells at ABUKHADER. ABUKHADER couldn't make out what was being said and pulled the door shut. The co-accused attempts to re-open the driver's door again and the applicant kicks the rear drivers quarter panel.
23. ABUKHADER drives off almost colliding with traffic travelling North along Stud Road. The applicant and co-accused then run North along Stud Road, stopping approximately 15 metres North of the 7Eleven.
24. On the 13th of July 2021, the applicant was stopped by Senior Constable Hannah RICHARDS. The applicant stated to Senior Constable RICHARDS that his name was Matt HODSON (23/12/2008) and provided his residential address as being 14 Westport Road, Hastings.
25. Senior Constable RICHARDS sent a photograph of the applicant to Detective Senior Constable Sally SPALDING who confirmed the details the applicant gave were incorrect.
26. At the time of his arrest the applicant was wearing a black coloured 'Kathmandu' puffer jacket, black coloured 'Nike' track pants, black coloured 'Nike' cap and black coloured 'Nike' shoes.
27. These clothes are the same clothes CCTV depicts the applicant wearing at 7Eleven on the 10th of July 2021. The black 'Nike' cap is the same cap which CCTV depicts the applicant wearing at Coles Express and Eastland Shopping Centre.
28. Police made an application to remand the applicant who was held overnight for a direct present at the Dandenong Children's Court on the 14th of July 2021.
29. On the 14th of July 2021, an application for bail was made by the applicant at the Dandenong Children's Court before Her Honour Magistrate DOOTJES. This application was part heard, with the matter being adjourned and applicant further remanded.
30. The matter is next listed on the 30th of July 2021, at Dandenong Children's Court for further mention.
Informant MURATOVIC
4. On the 2nd of July 2021 , at approximately 1:30pm vehicle RIJ962, being a white Toyota Camry, was stolen from 84 Jones Road, Dandenong. Offender(s) entered the residence via an unlocked rear door and stole the keys for the vehicle which was parked in the garage with the garage door open. Victim Francesca CARDAMONE was home at the time and witnessed her vehicle being reversed out of the driveway by a male described as being between 16-18 years old. The male offender managed to collide with the side of her house and then the left-hand side boundary fence and gate post before driving the vehicle away.
5. At approximately 2:14pm, CCTV obtained from Coles Express located on Police Road, Mulgrave depicts the applicant driving stolen vehicle RIJ962 to petrol bowser 7. The applicant exits the driver's seat and fills the vehicle with $75.99 worth of unleaded petrol. The applicant returns to the driver's seat and drives away, making no attempt to pay for the petrol.
6. At approximately 6:00pm the applicant has driven vehicle RIJ962 to Eastland Shopping Centre located at 175 Maroondah Highway, Ringwood. At this time the applicant has an unidentified male seated in the front passenger seat.
7. At this time Eastland Security Manager, Fadi NISSAN heard screeching of tyres in the Valet part of the Carpark of the shopping centre and attended to investigate. As NISSAN walked to the carpark, he observed vehicle RIJ962 driven by the applicant do a U-Turn in the valet section. As the applicant conducted the U-Turn, he has caused the vehicle to lose traction, driving the vehicle sideways towards NISSAN. The applicant then changed direction and drove towards exit gate 6 of the carpark.
8. As the applicant was waiting for the boom gate to lift at the exit, NISSAN walked over to confront him whilst he had his window down. NISSAN observed the applicant, describing him as wearing a black baseball cap and black coloured hooded jumper. NISSAN asked the applicant why he was doing burnouts in the carpark as there were kids around to which the applicant told him to "fuck off' before driving out of the carpark onto Warrandyte Road.
9. The applicant re-entered the carpark to Eastland Shopping Centre via entry gate 8 and was observed by NISSAN who advised other members of Security. Vehicle RIJ962 was located by Security who were viewing CCTV parked in a parking bay. Security further observed via CCTV, the applicant and unknown male enter the shopping centre and walk into the Woolworths store. The applicant is still observed wearing the black baseball cap and black jumper whilst he is on the escalators.
10. NISSAN contacted 000 to report the incidents, whilst on the phone he has heard the car doors to vehicle RIJ962 slam and observed the applicant and unknown male return to the vehicle. NISSAN observed the applicant reverse the vehicle at a fast rate of speed, colliding with vehicle ANE908 causing damage to the drivers' side door of the vehicle. At the time of the applicant reversing vehicle RIJ962, a female shopper was approximately 5 - 1 0 metres away from the collision, walking towards the area in which the applicant reversed.
11. The applicant drove vehicle RIJ962 erratically at a fast rate of speed towards the exit, narrowly avoiding other vehicles and pedestrians who had to move out of the way of the applicant, with the applicant exiting the carpark through exit 8.
12. Vehicle RIJ962 was located by Police abandoned in Gladstone Road, Dandenong on the evening of the 2nd of July 2021 with extensive damage.
13. A check of the applicants' previous custody photographs on the 17th of June 2021, shows him wearing the same jumper which is depicted in the Eastland Shopping Centre and Coles Express CCTV.
It will be readily apparent from these summaries that members of the community were placed in grave danger.
ANALYSIS
At the bail hearing on the 27 July 2021, the applicant’s counsel acknowledged that there were only two things that were different about the proposed bail regime to previous failed bail regimes. These were the proposal for a one-on-one carer and a referral to a Koori Youth Justice Program.
As mentioned above, Erin McGarva, who gave evidence on behalf of the applicant at the bail hearing, was not able to say when the one-on-one carer would be appointed and how many hours a week he or she would work with the applicant. Hopefully, when the applicant goes before the Magistrate on 30 July 2021, the proposal for a one-on-one carer will be much more advanced.
As regards the Koori service, the applicant’s counsel, when asked how it might address the risk of the applicant reoffending if released on bail, could not take matters further than to say it would ‘explore his culture and … develop those links and ties to culture’.[8] In the long term that might be of real benefit to the applicant and the community, but in the short term it does not address the risk of him reoffending.
[8]Transcript, 27 July 2021, p 13.
The applicant’s personal circumstances are set out in detail in the Court of Appeal’s judgment to which I have referred above. I do not intend to repeat them here. They are tragic. Suffice to say he suffers PTSD as a result of childhood abuse, has spent much of his life in the care of the Department of Human Services going from one failed placement to another and has a moderate intellectual disability.
These personal circumstances are, of course, heavily relied upon by the applicant for the submission that if found guilty of the alleged offending the applicant is unlikely to receive a sentence of detention. In my view, the alleged offending in respect of the applicant’s former foster carers (Houlahan’s matters), the attempted carjacking (Whelan’s matters) and the dangerous driving in the Eastland car park (Muratovic’s matters) could, if proven, justify a sentence of detention in a Youth Justice Centre, although a community-based disposition may be reasonably open to a Children’s Court Magistrate if, for example, Youth Justice bolstered the supports for the applicant by the provision of a one-on-one carer long term (and for a substantial number of hours each day).
I am mindful of what the Court of Appeal said in respect of the applicant’s March bail application about the evils of preventative detention and the risk that remanding the applicant in custody may force him to plead guilty to charges which he might otherwise contest. But the issue remains whether the risk to the community of releasing the applicant on bail is acceptable. Given what has transpired since the Court of Appeal released him on strict bail in March, I am driven to the conclusion that, on the current state of the evidence, it is not.
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