Re HS
[2018] VSC 410
•3 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0106
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an Application for Bail by HS | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2018 |
DATE OF JUDGMENT: | 3 May 2018 |
CASE MAY BE CITED AS: | Re HS |
MEDIUM NEUTRAL CITATION: | [2018] VSC 410 |
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CRIMINAL LAW – Application for bail – Children’s Court – Charges of armed robbery, obtaining property by deception, attempting to obtain property by deception, robbery, attempted armed robbery, theft, threat to kill, and committing an indictable offence while on bail – Applicant required to show cause – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P McKimmie | Victoria Police |
| For the Accused | Ms J Garner | Victoria Legal Aid |
HIS HONOUR:
Introduction
On 13 April 2018, HS (‘the applicant’) was arrested and charged by police with the offences of armed robbery (three counts), obtaining property by deception (two counts), attempting to obtain property by deception (three counts), robbery, attempted armed robbery, theft, threat to kill, and committing an indictable offence whilst on bail (four counts). The charges relate to events alleged to have occurred between 31 March 2018 and 12 April 2018.
On that day, 13 April 2018, the applicant was also charged with one further offence of armed robbery which relates to an incident alleged to have occurred on 15 March 2018.
At the time of this alleged offending, the applicant was on bail in respect of offences allegedly committed on 10 April 2018, involving charges of possession of methylamphetamine, possession of controlled weapon without lawful excuse, and handling stolen goods.
The applicant is 16 years old and has been in custody since 13 April 2018. He applied for bail before the Melbourne Children’s Court on 17 April 2018, but that application was refused. The charges for which he is currently on remand are next listed on 7 May 2018. The charges for which he was on bail are listed for first mention on 2 May 2018.
By application dated 14 April 2018, the applicant applies to this Court for a grant of bail.
The alleged offending
In summary, the 17 charges that are currently before the Court relate to seven separate events alleged to have occurred between 15 March and 12 April 2018. They are summarised chronologically as follows.
First offence – 15 March 2018
The prosecution case is that at approximately 9.15pm on 15 March 2018, the applicant and a co-accused attended 176 Copernicus Way in Keilor Downs in response to an Apple iPhone X for sale advertisement on Gumtree. The meeting was arranged through a female associate who contacted the complainant and advised him that her brother would attend the complainant’s address to purchase the phone.
It is alleged that on entering the complainant’s house, the applicant and the co-accused went into a bedroom where the applicant touched the complainant on the shoulder and told him to drop the phone. It is alleged the applicant then produced a small axe which he held to the complainant’s neck. The complainant immediately dropped the phone and told them to take it.
The applicant picked up the phone before swinging the axe which hit a stereo in the bedroom. The applicant and the co-accused then ran from the premises, using the axe to break through the security door.
The applicant and the co-accused were identified in the CCTV footage by police.
Second offence – 31 March 2018
It is alleged that at approximately 11.15pm on 31 March 2018, the applicant, the co-accused, and a third offender approached a male and female sitting on a bench in Treasury Gardens. One of the offenders produced a knife and told the complainants to hand over their phones and wallets, saying that if police became involved he would go to their house and kill them. The male complainant handed over his phone, while one of the offenders searched through the female complainant’s handbag, before stealing an iPhone 7 and the male complainant’s wallet, including $200 cash, two credit cards, a driver’s licence and a Medicare card.
Between 12.21am and 12.22am on 1 April 2018, it is alleged that the applicant completed two transactions valued at $81.40 and $86.60 at the Exford Hotel, using the male complainant’s credit card.
Between 3.00am and 3.38am, two attempted transactions took place on the male complainant’s credit card, the first being an online booking at ‘Apartments of Melbourne’ to the value of $506.20, and the second at a 7-Eleven convenience store on Bourke Street, to the value of $31.99. Both transactions were declined.
The applicant and the co-accused have been identified by police in the CCTV footage from the Exford Hotel and the 7-Eleven convenience store.
Third offence – 4 April 2018
On 4 April 2018, the applicant is alleged to have used ‘Gumtree’ to arrange the purchase of an iPhone valued at $1,689 from Xiamomi Mi Max, the complainant. The applicant and a co-accused, who has not yet been identified, allegedly met with the complainant and one of his friends in the foyer of the complainant’s premises on Lonsdale Street, where an altercation took place. During the altercation, the complainant’s phone fell from his pants, at which time the co-accused picked up the phone valued at $335, and left the building. The incident was captured on CCTV and police identified one of the offenders as the applicant.
Fourth offence – 12 April 2018
It is alleged that at approximately 5.50pm on 12 April 2018, the applicant and a co-accused met with the complainant in the foyer of his work building on Spring Street, following an arrangement through Gumtree to purchase his iPhone. The pair asked to see the phone, and once it was produced, the co-accused attempted to snatch it from the complainant.
The complainant attempted to retreat to the elevator, but was followed by the pair who attempted to snatch the phone again from the complainant. At this time, the applicant allegedly demanded that the complainant hand over the phone while producing a knife from his pants.
The complainant called for help and was assisted by the concierge who chased both offenders out of the building. The applicant and the co-accused were identified by police in the CCTV footage.
Fifth offence – 12 April 2018
The prosecution case is that at approximately 7.00pm on 12 April 2018, the applicant and a co-accused approached the complainant outside the State Library of Victoria, who was minding the belongings of two friends.
One of the offenders asked the complainant for a cigarette, which the complainant provided. The offender then demanded that the complainant hand over an iPhone belonging to the complainant’s friend. The complainant initially refused, however complied after the offender lifted up his shirt, revealing a knife in the waistband. The pair also stole a phone charger and a packet of cigarettes from the complainant.
Sixth offence – 12 April 2018
It is alleged that at approximately 7.30pm on 12 April 2018, the applicant and a co-accused approached a student who was walking through Treasury Gardens.
The pair asked the complainant for the time, at which point he took out his mobile phone. The pair then asked to use the complainant’s phone charger to which he complied. They sat on a bench and had a short conversation.
During the conversation, one of the offenders demanded the complainant’s phone but the complainant refused. The offender then produced a knife. One of the offenders then produced a pink Apple iPhone and attempted to swap with the complainant’s phone.
The pair made a further demand for the complainant’s phone, cash and credit cards before grabbing the complainant’s clothing, and stealing his phone charger. The incident was witnessed by two members of the public who intervened. Both offenders then fled the scene.
Seventh offence – 12 April 2018
It is alleged that at approximately 10.00pm on 12 April 2018, the applicant and a co-accused attended an address in South Bank in response to an advertisement on Gumtree to swap phones. The offenders met with the complainant in the foyer of the building.
During the meeting, the complainant handed over her Apple iPhone 8+ to one of the offenders who in return provided her with a phone that did not work.
The pair attempted to run off and the complainant gave chase. The complainant confronted them before being pushed to the ground by one of the offenders. The incident was witnessed by a neighbour who intervened.
The pair then jumped into a vehicle and drove away. The vehicle was photographed by the witness. The applicant and a co-accused were identified in the CCTV footage by police.
The applicable legislation
As a result of being charged with an indictable offence alleged to have been committed while he was on bail for another indictable offence, pursuant to s 4(4)(a) of the Bail Act 1977 (‘the Act’), the applicant is required to show cause why his detention in custody is not justified. The applicant is also in a show cause situation pursuant to s 4(4)(d) of the Act, as he is charged with an offence under 30B of the Act.
As the applicant is a child, pursuant to s 3B of the Act, the Court must take into account the following in making a determination:
·the need to consider all other options before remanding the child in custody; and
·the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
·the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
·the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
·the need to minimise the stigma to the child resulting from being remanded in custody; and
·the likely sentence should the child be found guilty of the offence charged; and
·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.
The applicant
The applicant is a 16 year old male. He is the eldest child of five. The applicant’s parents divorced when he was approximately one year old.
The applicant’s mother came to New Zealand as a refugee from Somalia. The applicant was born in New Zealand and then moved to Australia with his family. The applicant has no contact with his father who does not provide any financial support to the family.
The applicant attended school in North Melbourne until year two. He then went to Somalia for a year to practice his religion. On return, he attended schools in Kensington and Flemington until year nine. The applicant was suspended on a few occasions during his schooling for fighting with other children.
The applicant’s contentions
The applicant’s solicitor, in an affidavit dated 24 April 2018 in support of a grant of bail, submitted that the following matters are established by evidence and, together, showed cause why bail should be granted.
Youth
The applicant is a young male aged 16 years. As observed, he is a child for the purpose of this application.
Suitable accommodation
The applicant has accommodation available to him with his mother, maternal aunty and four younger siblings in North Melbourne.[1] The applicant’s mother is supportive of him returning home and understands the implications if the applicant does not abide by his bail.
[1]Affidavit of Miriana Smolkjo in support of Application for Order Granting Bail, [24] and exhibit MS7.
Youth Justice support
The applicant has been assessed on 18 April 2018 as suitable to engage with Youth Justice for intensive Youth Justice Bail Support Program and supervision.[2]
[2]Ibid [28]–[29] and exhibit MS8.
However, I note that the assessment report of his case manager Trudi Moore, dated 18 April 2018, expresses concerns regarding the applicant’s ‘lack of understanding of the seriousness of the alleged offending, his peer associations and the risk they may pose’, and ‘his lack of genuine empathy or remorse for the victims’. She further states that Youth Justice assess that bail may be premature at this stage, however, will supervise the applicant should the Court grant him bail.
Education
The applicant is currently enrolled to commence a Certificate 2 in Building Construction at Victoria University and attend the course from Monday to Thursday.[3]
[3]Ibid [26]–[27] and exhibit MS7.
Criminal history
This is the first time that the applicant has been remanded in custody and he has no prior criminal history.
The prosecution’s contentions
The prosecution argued that the applicant had not shown cause, and in any event, that there were unacceptable risks. In particular, it was submitted the applicant was likely to re-offend while on bail. The prosecution pointed to the seriousness of the matters that the applicant is alleged to have committed. It was noted the alleged offending involved a degree of planning and organisation, was not merely opportunistic, and involved the use of weapons, in company with another person or persons. The incidents involved violence, and there were losses of personal belongings. In one instance there was a threat to kill a victim.
The prosecution conceded that ultimately the applicant may not receive a custodial sentence.
Conclusions
As outlined above, the allegations against the applicant are very serious. On the other hand, the applicant has pointed to his youthful age, having just turned 16, the fact he has no prior convictions and that he has a number of pro-social supports in place.
In deciding this application, I am bound to consider not only issues to do with the seriousness of the alleged offending and the personal circumstances of the applicant, but also the matters set out in s 3B of the Act.
Having considered these legislative factors and all of the matters put before me, I have concluded that the applicant has shown cause why he should be granted bail. I have also concluded that the prosecution has not demonstrated that the applicant is an unacceptable risk as to why he should not be granted bail.
Non-custodial options
Section 3B(1)(a) of the Act requires me to consider all other options before remanding a child in custody. I have given consideration to that provision by, in particular, considering the availability of Youth Justice support and the imposition of strong bail conditions, which I outline in greater detail below.
Youth Justice support
Youth Justice provided a Supervised Bail Assessment Report in respect of the applicant, but it is now somewhat dated, having been written on 18 April 2018. Since that time the applicant has been in custody, for the first time, for a period of two to three weeks.
As noted above, the author of the report expressed some concern about the applicant’s response to the alleged offending. Overall, the report is not glowing, and Youth Justice’s position about the applicant was described as ‘neutral’. That said, a significant part of Youth Justice’s reservation appears to be that there has not been enough time for them to get to know the applicant. The report also contains some positive aspects, including that the applicant expressed the desire to engage with Youth Justice, felt some shame, and feels some responsibility towards his mother. His shame appears at this point to be focussed towards his and his family’s situation, rather than feeling empathy and concern for alleged victims.
At this early stage, I am not prepared to conclude that the absence of feelings of remorse for those affected by these alleged crimes is a position that the applicant will hold to in the longer term. I intend to order a fresh report be prepared by Youth Justice in respect of the applicant, to take into account the fact that he has spent some time in custody up to this point. One hopes the applicant will have learnt some lessons from that experience.
Relationship between the applicant and his family, and living arrangements
Section 3B(1)(b) of the Act requires me take into account aspects of the applicant’s family circumstances, in particular, the need to strengthen and preserve the relationship between the child and the child’s family. Pursuant to a 3B(1)(c) of the Act, I must also consider the desirability of allowing the living arrangements of the child to continue without interruption or disturbance.
Prior to and at the time of the alleged offending, the applicant lived at home with his mother, maternal aunty and younger siblings.
The applicant’s mother gave evidence before me and I was impressed by the approach she took to her son’s current circumstances, and her willingness to manage him should he be granted bail. She impressed me as a proud woman, and doubtless with five children to bring up on her own, she has faced challenges. The applicant is her oldest child and must realise, for their family to succeed and move forward, his presence and support of his mother is essential.
Education and training
Another important factor is that the applicant is currently enrolled to commence a Certificate 2 in Building Construction at a university and attend the course from Monday to Thursday.[4] I was informed that this course is still available to him, should he be granted bail. In giving weight to this factor, I have had regard to s 3B(1)(d) of the Act, which provides I am required to take into account the desirability of allowing the education and training of the child to continue in determining whether bail should be granted.
[4]Ibid [26]–[27] and exhibit MS7.
Likely sentencing outcome
Pursuant to s 3B(1)(f) of the Act, I am obliged to consider the likely sentencing outcome for the applicant should he be found guilty of the offences charged.
The prosecution case is not said to be weak. Indeed, on the summarised material before me, there are some aspects that appear to be strong. However, as pointed out in cross-examination of the Informant before me, the prosecution case is still in the early stages of its development, and more evidence is required. In my view, it is likely that the applicant will be found to have committed at least some the offending alleged, if not all of it. That said, it was fairly conceded by the prosecution, on the basis of its understanding of the case, that an eventual sentencing outcome might not involve a custodial sentence being imposed on the applicant.
The applicant is due to return to the Children’s Court in May 2018. That hearing will identify the future course of the proceedings against the applicant, and it appears that all of his matters will come before the Court on the occasion.
Whether unacceptable risk ameliorated by conditions
Having come to the conclusion that the applicant has shown cause due to the factors considered above, that is not the end of the matter. There remains the question of whether he represents an unacceptable risk.
The primary risk in the applicant’s case, as submitted by the prosecution, is that he will continue to offend if granted bail. In this regard, I note he does not have an established and longer term criminal history. Nevertheless, it is to be acknowledged that the applicant’s alleged offending is made up of a series of incidents over a period of time. It may be observed that his criminal behaviour does not represent an isolated incident, but rather a course of conduct from which he could have desisted at any point until his arrest.
I am told that the applicant may have come under the influence of older men. The police report before me in the application suggests this possibility, as does the applicant’s mother. Preventing the applicant from associating with those people, and with younger people who may have been involved in the alleged offending, may go some distance to alleviating concerns about further offending whilst on bail.
In my view, the supervisory involvement of the applicant’s mother is important. She has undertaken to inform police if the applicant does not abide with any bail conditions, and I am convinced she will undertake to hold that promise.
The applicant can also be supervised by Youth Justice – a circumstance that has not occurred previously. I have taken into account the Supervised Bail Assessment Report provided, and the viva voce evidence of Mr Taouk, who remained cautious, but approached the applicant’s situation with some optimism. Mr Taouk expressed the willingness for Youth Justice to engage with the applicant should he be prepared to do this.
In addition, conditions may be applied to ensure the applicant resides with his mother, impose a curfew, require the applicant report to police, and prohibit the applicant from attending particular areas.
In my opinion, such strong conditions can attach to a grant of bail to the point where what otherwise might be an unacceptable risk, is reduced to a satisfactory degree. Ultimately, the respondent has not persuaded me that the applicant is an unacceptable risk of further offending should he be granted bail.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Melbourne Children’s Court on the day of his hearing and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody;
(b) He reside at his home address with his mother and not change that address without the leave of the Court;
(c) He remain at those premises between the hours of 8:00pm and 6:00am each day for the duration of the bail period, unless accompanied by his mother;
(d) He present himself at the front door of those premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) He not attend or be within the Melbourne Central Business District, bounded by LaTrobe Street, Spencer Street, Flinders Street and Spring Street, except if accompanied by his mother to attend Court or meet with his lawyer for the duration of the bail period;
(f) He attend university every Monday to Thursday that is a designated teaching day, unless a medical certificate is obtained to indicate a medical reason for not attending, for the duration of the bail period;
(g) He report Monday, Wednesday and Friday to the Officer in charge of the Police station, or his or her nominee between the hours of 6:00am and 8:00pm;
(h) He report to Youth Justice within two working days after this order coming into force;
(i) He comply with all lawful directions of any officer of Youth Justice and attend all appointments as directed by Youth Justice;
(j) He not contact, directly or indirectly, the co-accused for the duration of the bail period;
(k) He not contact, directly or indirectly, any witness for the prosecution, except any of the informants;
(l) He reappear before the Court for judicial monitoring to review his compliance with this order on any further dates this Court appoints during the course of this order;
(m)He not leave the State of Victoria.
In imposing these conditions, I am satisfied they are no more onerous than necessary, pursuant to s 3B(1)(g) of the Act.
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