Re Haj
[2021] VSC 61
•16 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0017
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by HAJ |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2021 |
DATE OF ORDER: | 12 February 2021 |
DATE OF REASONS: | 16 February 2021 |
CASE MAY BE CITED AS: | Re HAJ |
MEDIUM NEUTRAL CITATION: | [2021] VSC 61 |
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CRIMINAL LAW – Application for bail – Child applicant – Intentionally cause serious injury in circumstances of gross violence – Compelling reasons established – No unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Rofe | Chester Metcalfe & Co |
| For the Respondent | Ms S Borg | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
HAJ, who is 17 years of age, makes application to this Court for bail. He has been on remand since 19 November 2020 when he was charged with intentionally causing serious injury in circumstances of gross violence and a number of cascading alternatives to that offence including affray, common law assault, unlawful assault, assault with a weapon and assault in company. The charges arise from an incident on 10 November 2020, involving a violent attack against another youth in St Kilda. There are two co-accused. Namely AB and AEH, who are both 17 years of age. They are both presently on remand.
At the time of the alleged offending, the applicant was on summons for charges of intentionally causing injury, recklessly causing injury, affray and unlawful assault. Those charges arose as a result of an incident on 19 February 2020 involving an assault against another youth in company at the South Morang train station. The applicant has made a number of applications for bail. He has been refused bail in the Melbourne Children’s Court on 1 December 2020 and 19 January 2021. He had also made application to this Court, but during the hearing of that application on 15 December 2020, it was withdrawn.
These matters are next listed for committal mention on 22 February 2021 and it is anticipated that a committal hearing could commence as early as May of this year.
The alleged offending
Background
On 27 April 2020, JT (‘the alleged victim’) and his brother attended a park in Lalor. It was pre-arranged that AEH would meet them at this location to purchase a watch. Upon arrival, the alleged victim and his brother were assaulted and robbed by a group of males, including AEH. While not charged, it is believed that both HAJ and AB were also involved in the incident. The following events are alleged to have occurred in the context of retaliation against the alleged victim for reporting that incident.
Alleged offending
At 9.45 pm on 10 November 2020, the alleged victim was set upon by a group of males whilst at the St Kilda foreshore with friends. It is the prosecution case that the assault was initiated when AEH hit the alleged victim across the head with a bottle, causing him to fall to the ground, as others joined in by punching and kicking the alleged victim.
While the assault was underway, it is alleged by the prosecution that AB approached the alleged victim and drove a small knife into his left side. AB then ran away, at which time it is alleged that HAJ approached the alleged victim and thrust a small knife into his sides multiple times while yelling and swearing at the alleged victim. HAJ then walked away.
Police who subsequently attended the scene found a small knife in the vicinity of where the assault had taken place. The knife was seized.
Following the incident, the alleged victim was transported to Alfred Hospital with puncture wounds to both sides of his ribs, piercing into his chest cavity, and a fracture and puncture wound to his left arm.
Investigation, arrests and interviews
The incident was filmed by a witness and circulated on Snapchat. The video, in which the alleged victim can be heard yelling, ‘I’ve been stabbed!’, and someone – alleged to be HAJ – yelling, ‘Pussy!’, came to the attention of staff at Lalor Secondary College. The staff recognised AB and HAJ (former students of Lalor Secondary College), and AEH (existing student at that time) and provided a copy of the footage to police.[1]
[1]See video dated 11 November 2020, filed by the respondent.
On 19 November 2020, police executed a search warrant at HAJ’s residence in Mernda, where they located a grey fold out knife and clothes alleged to have been worn by HAJ during the incident. Subsequent analysis of the knife revealed HAJ’s DNA as a likely contributor to the handle of the knife.[2]
[2]Affidavit in Opposition, Exhibit NMB-5, 3.
That same day, HAJ, AB and AEH were each arrested and remanded in custody. During a record of interview, HAJ was asked whether the knife seized from his residence was used during the incident, and responded, ‘No, I didn’t have a knife in my hand’. When asked to clarify what he meant, while being presented with a still imagine from the CCTV,[3] HAJ responded, ‘I never said that was me’. He otherwise answered ‘no comment’ to questions put to him.
[3]It is not clear whether ‘CCTV’ is a reference to the mobile phone footage circulated on Snapchat, or whether there is in fact CCTV of the incident separate to the mobile phone footage.
After examining HAJ’s mobile phone, police noticed an absence of data from social media applications and messages from and around 10 November 2020. However, the following video and text message exchange were retrieved:
(a) A video timestamped 7.18 pm on 30 October 2020, depicting the alleged victim sitting on a couch as someone – alleged to be HAJ – can be heard repeatedly taunting, ‘You’re a pussy’, and, ‘You’re a bitch’. The alleged victim is then punched to the face before someone – again, alleged to be HAJ – says, ‘You’re a bitch’. [4]
[4]See video dated 30 October 2020, filed by the respondent.
(b) A text message exchange between HAJ and an associate, Issiah Soliman (‘IS’), as follows:
IS: ‘Give him the meaning of snitches get stitches… fkn dog’.
HAJ: ‘There’s another vid of the whole thing’.
IS: ‘Is that the one on that girls [sic] story? Of you hammering his life when his [sic] on the sand’.
HAJ: ‘Yeah probably lmfao (four laughing emojis)… the caption was “how dey just gon stab him like that”’.
IS: ‘The cunt was fkn doing some wiggle on the floor (two laughing emojis)’.
HAJ: ‘He was break dancing lmfao’.
Call charge records from HAJ’s phone place him in the vicinity of the St Kilda Esplanade at the time of the alleged offending. Further, these records show communications between all three co-accused immediately prior to and following the alleged offending.
On 21 November 2020, the alleged victim was released from hospital. He refused to make a statement, expressing, ‘It will only make it worse.’ The alleged victim then sought assurances from police that persons involved in the incident knew he had not reported the matter or made any formal statement to police.
The applicant
HAJ is a 17 year old child with no criminal history. He has an older brother and a younger sister, both of whom reside in the family home in Mernda. HAJ was raised in Iraq up until the age of six, at which time he and his family fled to Australia as refugees. They initially settled in New South Wales before moving to Victoria in 2017. In Year 9, HAJ was expelled from Lalor Secondary College due to fighting whilst in detention. He then moved to Thomastown Secondary College, where he remained up until the time of his arrest on the present charges. On all accounts, HAJ is a diligent and well-performing student, an ethic which appears to have continued whilst on remand.
Psychological report
In a report dated 2 February 2021, psychologist Ms Gina Cidoni assessed HAJ’s risk of future violence by administering the Structured Assessment of Violence Risk in Youth (‘SAVRY’). She noted that HAJ’s stress and coping skills may require some development, and that some of his past activities demonstrate a level of risk-taking and impulsivity.
However, against this, Ms Cidoni noted a number of protective factors, including HAJ’s stable home environment, strong familial bonds, commitment to schooling, and positive attitudes towards intervention and authority to date. Further, she noted that HAJ does not present with any personality disturbances, diagnosable psychological illnesses, or substance abuse history, and, the present matters aside, has no history of offending or engaging in violence.
The outcome of the SAVRY was that HAJ’s risk of future violence is low. In Ms Cidoni’s opinion, HAJ’s more recent behaviours may be viewed as adolescent risk taking and seeking peer influence and approval. Ms Cidoni expressed the view that any future violence, if it were to occur, would likely take place in the context of peer influence. She opined that HAJ’s chances of rehabilitation would be maximised through intensive Youth Justice support and regular psychotherapy to promote emotional regulation and positive decision making.
The applicable legislation
Preliminary question – new facts and circumstances
Although at one stage a question was raised about whether new facts and circumstances existed in this case, that is not a relevant consideration because of the special jurisdiction of the Supreme Court pursuant to s 18AA of the Bail Act 1977 (‘the Act’).
Guiding principles
When interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B.[5] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.
[5]The Act, s 1B(2).
Determination in relation to a child
Given that HAJ is a child, the Court must take into account the following matters prescribed in s 3B(1):
(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.
In making a determination in relation to a child, the Court may also take into account any recommendation or information contained in a report by a bail support service.[6] In the present case, the Court has received two reports from Youth Justice, dated 1 December 2020 and 11 February 2021 respectively.
[6]Ibid, s 3B(2).
Step 1 – show compelling reason test
Because HAJ is charged with a Schedule 2 offence within the meaning of s 3 of the Act,[7] bail must be refused unless he satisfies the Court of a ‘compelling reason’ justifying the grant of bail.[8] In considering whether a compelling reason exists, the Court must take into account all of the relevant ‘surrounding circumstances’, including those set out in s 3AAA of the Act.[9]
[7]Causing serious injury intentionally in circumstances of gross violence is a Schedule 2 offence. See Bail Act, sch 2, item 4.
[8]The Act ss 4AA(3), 4C(1)-(2).
[9]Ibid s 4C(3).
Meaning of compelling reason
Compelling reason is not defined in the Act. Its meaning was considered by the Court of Appeal in in Rodgers v The Queen.[10] Their Honours summarised the principles to be applied as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is difficult to resist.[11]
[10][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[11]Ibid [43] (footnotes omitted).
Step 2 – unacceptable risk test
If satisfied of the existence of a compelling reason, the Court must apply the unacceptable risk test.[12] That is, the Court must consider whether, again having regard to the surrounding circumstances, the respondent has established that HAJ poses an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[13] The Court must further consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[14]
[12]Ibid ss 4C(4) and 4D(1)(a).
[13]Ibid s 4E.
[14]Ibid s 4A(3).
Family violence risks
If considering releasing HAJ on bail, the Court must make inquiries of the prosecutor as to whether there is in force a family violence intervention order, family violence safety notice or recognised DVO against HAJ.[15] The respondent in this case has confirmed that no such orders exist against HAJ, however noted that HAJ is currently subject to an interim personal safety intervention order (‘PSIO’) naming the alleged victim in this matter as the protected person.[16]
[15]Ibid s 5AAAA(1).
[16]The PSIO was made in the Melbourne Children’s Court on 18 November 2020 and includes full no-contact conditions. See Affidavit in Opposition, affirmed by Nico Baarlink on 10 February 2021, Exhibit NMB-8 (‘Affidavit in Opposition’).
Analysis
I am satisfied in the present case that because of the delays that are likely to take place in relation to a child that has no prior convictions, I would regard a compelling reason as having been made out. I am therefore compelled, pursuant to the Act, to consider the unacceptable risk test. I must consider whether, having regard to the surrounding circumstances as set out in s 3AAA, the respondent has established that the applicant poses an unacceptable risk of any of the matters set out in s 41A of the Act.
In reaction to that, I am also obliged to consider whether there are any conditions of bail that may be imposed to mitigate the risk such that it is not unacceptable. I note that in relation to this matter, the applicant is subject to an interim personal violence safety intervention order, naming the alleged victim in this matter as the protected person. There is some suggestion that the current offending arises from a grievance that the alleged victim reported to police previous incidents involving the co-accused AEH.
In relation to the incident on 10 November 2020, it is alleged by the prosecution that the co-accused, AB, approached the alleged victim and drove a small knife into his left side. AB then ran away, at which time it is alleged the applicant approached the alleged victim and thrust a small knife into his side multiple times, whilst yelling and swearing at the alleged victim. The applicant then walked away. The basic evidence of the incident is contained in a video, which was circulated on Snapchat. A number of things can be heard on the video. Which of those things might or might not be attributed to the applicant is moot. However, because of that video, it is clear enough that there that there will be no difficulty identifying the applicant as being involved in the incident and one assumes that as a result of the principles involving joint criminal behaviour, that there will be an argument that the applicant is responsible for not only what he did, but also what was done by AB. It is clear, it seems to me, that the nature of the incident, the place in which it occurred and the fact that it occurred in the presence of a number of young people, that it is quite a serious piece of offending. Whether or not it ultimately leads to the most serious charge or at least to some of the lesser charges it is nonetheless serious – and for instance, even if it reached the point of it being dealt with as an affray; it would be a quite serious example of offending of that kind.
For present purposes, it is significant as to whether or not the serious injury charge can be maintained. That has an effect on the applicable test for the granting of bail but also, probably more importantly, in relation to the future conduct of these matters relating to whether or not the matter proceeds on indictment or proceeds in the Children’s Court. I have not directly taken those matters into account but they are for the future.
Part of the background material in relation to this matter included a video, timestamped 7.18pm on 30 October 2020, depicting the alleged victim sitting on a couch. Someone – and it is alleged at this stage to be the applicant – can be heard repeatedly taunting the alleged victim. It is suggested that has some relationship to the matters that happened later on. Now the extent to which the applicant’s voice can be identified and what it means is not entirely clear to me at the moment but it does not matter for these purposes.
One of the problems in this case that the prosecution face and for reasons which are unfortunate, the alleged victim has refused to make a statement and he has said that in terms, ‘It will only make it worse’. Now, if the general basis of the prosecution allegation is that he was attacked on this occasion because he had made a complaint on an earlier occasion, then it is easy to see why he is quite reluctant to take this matter further and he is yet to make any formal statement to the police.
Whether he can ever be compelled to give evidence in the matter will create some difficulty. I suspect in the Children’s Court, if it remains in that jurisdiction, there will be no provision by which he can be compelled. That will complicate the extent to which the prosecution will be able to obtain detailed evidence of his injuries and what his future prospects are; although it is not impossible, it is just difficult.
The applicant is 17 years old as I have already observed and he has no criminal history. He has an older brother and a younger sister, both whom reside with the family in Mernda. The applicant had been attending Thomastown Secondary College, where he remained until the time of his arrest. From the material, he appears to have been a diligent, well-performing student and he appears to have continued that attitude while he has been on remand.
There were a number of matters put forward on behalf of the applicant that I will not repeat here in detail. In summary, they may be expressed as follows.
(a) That there are arguments about the nature and seriousness of the alleged offending and the strength of the prosecution case.
(b) The applicant has no criminal history.
(c) That the interest of the alleged victim in the present matter are at least in part taken care of by the intervention order being in place.
(d) That the applicant has suitable accommodation and family support and the applicant’s father submitted both an affidavit setting out the support that he would give his son and gave evidence before me today confirming those matters.
In a way, I suspect that the applicant’s father is slightly embarrassed by what has occurred and his own inability to have prevented at least the most recent offending. But he does have, and has expressed, a determination to impose proper and detailed supervision of his son in a way that should keep him out of trouble of this kind, and keep him away from the peers under whose influence he has become engaged in this sort of behaviour.
I was impressed by his determination and he gave an undertaking to me that he would report any breach of bail condition or bail to the informant and I am satisfied that he would do so. I am also satisfied otherwise that the support at home is satisfactory. It is always a matter in cases of this kind that a person goes back basically into the milieu in which they were immersed at the time they committed the offending. But the family are now more aware of what has been happening and the risks involved in proper supervision will be in place.
The applicant has completed his first year VCE at Thomastown Secondary College. In a letter dated 25 November 2020, the VCE co-ordinator noted that the applicant had strong academic performance and described him as generally well behaved. At the time of his arrest the applicant was enrolled to commence his final year of VCE and when released on bail he will be able to do that. He has been involved in a number of courses since he has been in custody, particularly courses related to personal development and anger management. He has completed courses titled, ‘Stay Connected Relationship Strategies’, ‘Healthy Relationships’, ‘Stay Chilled’, ‘Managing Anger’, ‘Understanding Anger’ and ‘Cool Heads’.
HAJ has been involved in some disruptive activity whilst he has been in custody. This seems largely to be as a result of matters in relation to which his co-accused was involved and as I observed in discussion it is slightly unfortunate the two of them were placed together, but the authorities simply do their best in these matters. Apart from the matters that have arisen, his conduct has otherwise been regarded as being quite good.
HAJ comes before the Court with the special vulnerability that he is a child, and has the benefit of s 3B of the Act. He has available to him bail support service which I have taken into account and it seems a practical and sensible plan has been devised which will centre largely on ensuring that the applicant engages in his education. There will be a specific supervision program and pursuant to that, if granted bail, it is proposed that Youth Justice will conduct weekly appointments with the applicant. They will alternate between in person and virtual contact. It is proposed that the applicant engage in weekly counselling with a private psychologist, Christine Hardy, to address his issues with anger management and emotional regulation. And, of course, that he resume his education.
It was further submitted on his behalf that there will be significant delay and I think we accept within the system that that must be so. That will have to be weighed against the possibility of any sentence he might receive. The later matter is particularly difficult to assess in the context of what the charges ultimately will be and what jurisdiction the matter proceeds in, but I know that it is of some importance that he has now served three months in custody.
The question of parity was mentioned in submissions made on behalf of the applicant. Parity will rarely be of any great significant in relation to the question of bail, but more importantly it cannot be a feature for saying that because others have not yet got bail, the applicant should not get bail. It was also submitted that any unacceptable risk may be suitably ameliorated by the implication of stringent conditions of bail. The respondent contended that it would be open to the Court to find that compelling reasons had been made out, but pressed very strongly the opposition to bail based on an unacceptable risk of endangering the safety and welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice. When going to the material of what has occurred in the past, it is possible to see the strength of those submissions.
In relation to the matters that operate pursuant to s 3AAA of the Act, it was submitted by the respondent that the charges are inherently serious and that in general, once the identity of the applicant can be established, there is a relatively strong prosecution case. I have made my observations about that. Further, that at the time of the alleged offending, the applicant was on summons for offending which has a number of similarities with this offending, particularly in the sense that it involved gang-type activity. It was further noted that although the stable accommodation and family support could be provided, they were the very same circumstances in which the applicant was at the time of this alleged offending, and raise the question of whether bail support can be provided which will be sufficient to prevent HAJ further offending.
A separate argument was developed as to the particular unacceptable risks which have already been set out; that is, there is the particular potent feature of the present alleged offending which tries to deter somebody who has been involved in reporting other criminal activity, and that in turns raises the risk of committing an offence whilst on bail and interfering with witnesses. As I have said, I understand the way those matters are put.
I have come to the conclusion that I can impose conditions which will render what might otherwise be an unacceptable risk an acceptable risk and the applicant will be admitted to bail on special conditions that I have previously announced.
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