Re HAH
[2019] VSC 776
•26 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0251
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| - and - | |
| IN THE MATTER of an Application for Bail by HAH (a child) | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2019 |
DATE OF JUDGMENT: | 26 November 2019 |
CASE MAY BE CITED AS: | Re HAH |
MEDIUM NEUTRAL CITATION: | [2019] VSC 776 |
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CRIMINAL LAW — Bail —Charges of theft and committing indictable offence whilst on bail — Schedule 2 offences — Applicant vulnerable child with intellectual disabilities — Application unopposed — Exceptional circumstances conceded — Risk of release not unacceptable — Bail granted with legal guardian entering undertaking on applicant’s behalf — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4, 4AA, 4C, 4D, 4E, 16B.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D McGlone | Kurnai Legal Practice |
| For the Respondent | Mr P Murphy | Victoria Police |
HIS HONOUR:
This is an application for bail by HAH (‘the applicant’), who is a 13-year-old child.
The applicant seeks bail on two charges being theft and committing an indictable offence whilst on bail. These offences are alleged to have been commissioned on 18 November 2019, when the applicant approached a man in Noble Park, asked to borrow his mobile telephone and then refused to return the phone to its owner.
It is common ground between the parties that the applicant must demonstrate the existence of exceptional circumstances that justify the grant of bail. This is because he is charged with a Schedule 2 offence under the Bail Act 1977 (‘the Act’) – namely, committing an indictable offence whilst on bail – alleged to have been committed while he was on bail for the same offence, charged in another matter.[1]
[1]Bail Act 1977 (Vic) ss 4A, 4AA(2)(c)(i), 30B and sch 2 item 30 (‘Bail Act’).
The respondent in this matter concedes that it is open to the Court find the existence of exceptional circumstances that would justify the grant of bail.
Procedural history
The applicant has been in custody since his arrest on 18 November 2019. He was refused bail in the Dandenong Children’s Court the following day on the basis that he posed an unacceptable risk of committing an offence while on bail.
The Magistrate remanded the applicant to appear at the Frankston Children’s Court by video link on 3 December 2019 for mention and ordered that the next ‘substantive’ hearing of the matter be listed on 17 December 2019. The applicant has been on remand at Parkville Youth Justice Centre.
The present application for bail was filed on 22 November 2019.
It is important to note that, at the time of the alleged offending, the applicant was already on bail in relation to two outstanding matters and charged on summons in respect of two others. The majority of these matters involve incidents relating to the applicant’s conduct at the therapeutic residential unit where he resided.
The matters for which he was granted bail and remains on bail are as follows.
In the first matter, where the informant is Leading Senior Constable Caldwell, the applicant faces charges of criminal damage, unlawful assault and committing an indictable offence whilst on bail. Those offences are alleged to have occurred on 4 August 2019.
In the second matter, where the informant is Constable Harris, he is charged with unlawful assault, recklessly causing injury and committing an indictable offence whilst on bail. Those offences are alleged to have occurred on 14 September 2019.
In both matters, the applicant was granted police bail on his own undertaking with the only condition being that he surrender to the court at the next hearing date.
The matters in which the applicant is charged on summons are as follows.
Firstly, where the informant is Constable Benson, the applicant is charged on summons with unlawful assault, alleged to have occurred on 17 September 2019.
Secondly, where the informant is Constable Hoganbirk, he is charged on summons with making a threat to kill and unlawful assault, alleged to have occurred on 24 September 2019.
The informant Caldwell, Harris and Benson matters are each listed for contest mention or mention in the Frankston Children’s Court on 21 January 2020. The informant Hoganbirk matter is listed for mention on 17 December 2019.
The alleged offending
It is the prosecution case that, on 18 November 2019 at approximately 8 pm, the applicant approached the complainant as he was making his way home from the Noble Park Railway Station. The applicant allegedly asked the complainant if he could borrow his mobile telephone and the complainant agreed.
Once in possession of the phone, the applicant is alleged to have made a phone call and then proceeded to walk away from the complainant and towards two females who were standing nearby. This prompted the complainant to follow the applicant and request that his phone be returned. The applicant is alleged to have said, ‘You’re not getting it back. More people are coming; you better go away.’ The applicant then joined the two females.
The applicant continued to refuse to return the phone, and the complainant went to Noble Park Railway Station, where he reported the theft to Protective Services Officers. In the course of his reporting, the complainant described the offender as being a short, Caucasian male, aged around 14 years, dressed in a dark hoodie and a beanie.
The applicant was arrested by police shortly thereafter, having matched the description provided by the complainant. Upon arrest, he is said to have made full admissions. The complainant’s phone was also located near some rubbish bins in the area of the incident.
The applicant
The applicant is 13 years old and has a significant intellectual disability and diagnosis of post-traumatic stress disorder (‘PTSD’) and attention deficit hyperactivity disorder (‘ADHD’).
Throughout his infancy and early childhood, he was exposed to significant trauma in the home, including family violence, physical abuse, neglect and sexual abuse. His parents are said to have suffered from untreated mental health issues that impacted their ability to care for the applicant and his siblings. He has not had contact with his father since 2012 and has occasional phone contact with his mother, although there are no plans for reunification.
He has been in the care of the Department of Health and Human Services (‘DHHS’) under a Care by Secretary Order since the age of eight. Prior to his remand, he resided a therapeutic residential unit in Baxter, operated by MacKillop Family Services, where he had been placed since 31 March 2019.
The applicant is also supported by Child Protection, Berry Street and the National Disability Insurance Scheme.
The application legislation
In order to demonstrate ‘exceptional circumstances’, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.’[2]
[2]Re CT [2018] VSC 559 [64] (‘Re CT’).
As has been stated in previous decisions of this Court, the influence of s 3B is such that the assessment of ‘exceptional circumstances’ is different in the case of a child than it is for an adult. This means that a child may meet the requisite threshold through a combination of circumstances, including the considerations set out in s 3B, whereas an adult with the same combination of circumstances may fall short.[3]
[3]See Re JO [2018] VSC 438 [14]. See also Application for Bail by LT [2019] VSC 143 [37]; Re CT [65].
In considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’ set out in s 3AAA of the Act, as well as the matters set out in s 3B of the Act, which apply to a determination relating to a child.[4]
[4]Bail Act s 4A(3).
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must then apply the ‘unacceptable risk’ test.[5] Pursuant to s 4E of the Act, that the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety and welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[5]Ibid s 4D(1)(a).
In considering whether any risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’, and consider whether there are any conditions of bail that may mitigate the risk so that it is not an unacceptable risk.[6]
[6]Bail Act s 4E(3).
Given the applicant’s age and intellectual disability, the question arises as to whether the applicant has the capacity to enter into an undertaking with conditions in the event that he is granted bail arises. Sections 16B of the Act provides that if the Court is of the opinion that the child applicant does not have the capacity or understanding to enter into an undertaking, the child may be released on bail if some other person enters into an undertaking to produce that child for the next court appearance. I propose to follow that course.
Finally, when interpreting the Act, the Court is required by s 1B to take into account the following ‘guiding principles’:
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
The submissions of the applicant
The applicant submitted that a number of factors are established by the evidence and, in combination, demonstrate exceptional circumstances that justify a grant of bail. In brief, the relevant matters are as follows.
In addition to his very young age, it was submitted that the applicant is particularly vulnerable in custody due to his significant intellectual disability. According to the report of psychologist Carolyn May, dated 2 May 2018, the applicant has a full-scale IQ of 47, which places him in the extremely low range (the bottom 0.1 percent) of cognitive functioning compared to children of the same age. Ms May also states that the applicant was previously diagnosed with ADHD and prescribed medication.
In another report prepared by Dr Aaron Cunningham, dated 10 May 2018, the applicant has a confirmed diagnosis of PTSD stemming from his traumatic childhood. While the affidavit filed on behalf of the applicant does not appear to place reliance on this diagnosis, it is nonetheless relevant to the determination of this application.
The applicant will contest the charges on the basis that he is doli incapax, a challenge with some prospect of success. It was submitted that the matter will not therefore resolve for at least six to eight months. This is based on the informant Caldwell and Harris matters being listed for contest mention on 21 January 2020, with a hearing estimated to take place six months later.
Additionally, the applicant has no criminal history and his remand at Parkville is his first time in custody.
The applicant further submits that, given his lack of criminal history, there is no likelihood of him receiving a custodial sentence in circumstances where other sentencing options are open to the court, including a diversion or good behaviour bond. That submission is indisputable.
Notwithstanding that the majority of the applicant’s outstanding matters involve allegations of aggressive conduct toward staff at his therapeutic residential unit, his placement at that unit remains available to him if granted bail. The applicant submitted that he has established relationships with others in that unit, including a therapeutic practitioner. It was submitted on his behalf that this is a suitable, stable living arrangement and that the refusal of bail would go against the preservation of his current relationships.
Youth Justice is willing to support the applicant on supervised bail, if granted. However, it is noted that he was previously not recommended for Supervised Bail on the basis that it was unnecessary given his current supports including supervision by MacKillop Family Services at his unit, as well as his age, lack of criminal history and likely sentence if found guilty.
The applicant attends the Peninsula Specialist College four days per week for half a day and he has done so for around eight months. He also has access to an education support worker through the Berry Street Child in Residential Care Program.
The applicant conceded that he has breached bail by further alleged offending and that the prosecution allege that he is a risk of committing further offences while on bail.
The submissions of the respondent
The respondent does not oppose a grant of bail. As already stated, it is conceded that the applicant has demonstrated the existence of exceptional circumstances. The respondent submits that, if granted bail, the applicant is a risk of endangering the safety or welfare of any person and of committing an offence while on bail, but concedes that any risk could be reduced to an acceptable level through the imposition of appropriate conditions.
Analysis
I am satisfied in the circumstances that the respondent’s concessions, both as to exceptional circumstances and to the acceptability of the risk of releasing the applicant are appropriately made. There could be no question that the combination of the circumstances described, coupled with the relatively minor nature of the offending, means that the applicant has established exceptional circumstances. I am also satisfied that the risk of releasing him on bail is utterly acceptable in the present circumstances.
The applicant will be returning to the therapeutic residential unit at Baxter and will be under the supervision by the staff there as well as by Youth Justice workers. Therefore, I see no point in imposing conditions which, in my opinion, he will not understand, and which will simply formalise existing supports.
Conclusion
I therefore propose that the applicant be admitted to bail on an undertaking entered into on his behalf by Jane McDonald with DHHS, who is effectively his legal guardian, that she will produce him at the Frankston Children's Court on 3 December 2019, and thereafter as directed by that Court.
Before leaving this matter, I wish to refer to and highlight the incongruity of a boy of 13, charged with theft of a phone in a most infantile way, finding himself applying for bail in the intimidating majesty of the fourth Supreme Court — a place where the most serious criminal trials are normally held. It is the second time in a week that an application for bail made by a young child has occurred in this Court; this is no place for a child. I strongly recommend that an alternative, more welcoming forum be established for applications of this kind.