Re IH
[2020] VSC 325
•27 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0107
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by IH |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2020 |
DATE OF JUDGMENT: | 27 May 2020 |
DATE OF REASONS: | 3 June 2020 |
CASE MAY BE CITED AS: | Re IH |
MEDIUM NEUTRAL CITATION: | [2020] VSC 325 |
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CRIMINAL LAW – Bail – 14 year old Aboriginal offender – Armed robbery, aggravated home invasion and other serious offending – Whilst on bail and subject to youth supervision orders – Absconding from residential address and contravention of curfew – Youth Justice still supportive – Family reunification order in place – Supervised accommodation and supports available – Whether period on remand would exceed likely sentence – Asserted change in attitude by the applicant – COVID-19 considerations – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Anderson | Camerons Lawyers |
| For the Defendant | Mr S Payne | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
The applicant applied for bail in respect of a large number of charges he faces including aggravated home invasion and armed robbery. Because of the facts of this case, he was in the position of having to prove the existence of exceptional circumstances before I could bail him. In spite of the fact that the applicant is only 14 years old and of Aboriginal heritage, and the resultant powerful considerations in favour of a grant of bail, I considered that he had failed to discharge that onus. Furthermore, I indicated that I would have been satisfied of the existence of an unacceptable risk under s 4E of the Bail Act 1977 (‘the Act’) had the first step of the bail process been determined in favour of the applicant. I therefore refused bail. I indicated at the time that I would publish my reasons at a later time. These are those reasons.
Procedural history
The applicant has been in custody since his arrest on 3 March 2020. A bail application was held in the Children’s Court on 30 April 2020. Bail was refused as the applicant had failed to establish exceptional circumstances, and it was further found that he would pose an unacceptable risk of re-offending and endangering the safety of the public.
The matter is next listed for mention in the Children’s Court on 1 June 2020.
Background to the offending
On 16 December 2019, the applicant was placed on a youth supervision order (YSO) for ten months on charges including unlawful assault, theft of a motor vehicle, reckless conduct endangering life, failing to stop a vehicle on police directions, dangerous driving, and committing an indictable offence whilst on bail.[1] He was placed on a second YSO for six months on 7 February 2020 on charges including intentionally causing injury, recklessly causing injury, affray, and committing an indictable offence whilst on bail. Both orders contained conditions requiring the applicant to engage in support services to address drug and alcohol and mental health issues. A core condition of any YSO is that the offender must not re-offend during the period of the order.[2]
[1]On appeal to the County Court, the length of this YSO was reduced so as to have the order end on 6 August 2020, in line with the end date of the second YSO.
[2]Children, Youth and Families Act 2005, s 389(1)(c).
In addition to being subject to the above YSOs at the time of the current alleged offending, the applicant was also facing charges of assault in company, unlawful assault and assault by kicking. He was charged by summons by Senior Constable Nguyen on 14 January 2020 in respect of offending alleged on 31 October 2019 at Parkville Youth Justice Centre (‘Parkville’) (‘the Nguyen charges’).
At the time of the current alleged offending, the applicant was residing at a residential care unit in Shepparton.
The alleged offending
The charges were laid by three separate police informants, Senior Constable Schroeter, Detective Senior Constable Van Emmerik, and Senior Constable Hanks. The offending occurred between 21 February 2020 and 27 February 2020. The charges are as follows:
SCHROETER
Affray, recklessly causing injury, unlawful assault
VAN EMMERIK
Attempted robbery, intentionally causing injury, recklessly causing injury, assault in company, assault with a weapon, criminal damage, committing an indictable offence whilst on bail (four charges), theft (four charges), aggravated burglary (two charges), burglary, theft of motor car (three charges)
HANKS
Theft of motor car (four charges), theft (three charges), aggravated burglary (two charges), reckless conduct endangering life, dangerous driving (two charges), robbery, armed robbery, home invasion, committing an indictable offence whilst on bail (three charges), further dishonesty, violence and driving offences.
SCHROETER CHARGES
On 21 February 2020 at about 1.00 am, the applicant attended at an address in Mooroopna with several other young males including LW. The victim DW, who lived at the address, came outside. He was punched to the ground by LW. On the prosecution case, the others, including the applicant, rushed at him and proceeded to kick and punch him repeatedly to the head and body while he curled up in the foetal position to try to protect himself. He feared for his life. During the course of the attack, an unknown member of the attacking group stabbed him three times to the inner part of his right thigh. After a time, DW managed to break free and escape inside. He was later treated for an incised wound to his leg.
The applicant was charged and bailed by police to appear at the Children’s Court on 27 April 2020. Conditions of bail included a static address in Shepparton as directed by DHHS and a curfew requiring him to be at the address between 8.00pm and 7.00am each day.
VAN EMMERIK CHARGES
At 7.23 pm on 23 February 2020, the applicant and co-accused attended at a bottle shop in Shepparton. They selected two slabs of Jack Daniel’s cans and left the store without paying. In the early hours of the next morning, the offenders returned to the bottle shop with shirts over their faces. They used pieces of concrete to smash the front window and gain access to the store. They stole some cans of Jim Beam and Jack Daniel’s before decamping on foot. On the evening of 25 February 2020, the applicant and the others returned to the store and stole further cans of alcoholic drinks.
At about 12.20 am on 26 February 2020, David Burgess, a security guard in position in a vehicle outside the store as a result of the recent spate of thefts, was seen by the applicant and his co-offenders who had again come to the store. Mr Burgess was wearing a dark polo top and fluoro vest and was mistaken by the offenders for a member of the police force. One of them punched and kicked the vehicle and then the applicant threw a large rock at Mr Burgess, smashing the driver’s side window and hitting and breaking the nose of Mr Burgess. Mr Burgess then tried to call the police on his phone before a demand was made for his phone. He was then struck repeatedly by a further 12 to 15 rocks[3] thrown at him by the offenders. During the course of the attack, the offenders tried to gain access to Mr Burgess’ vehicle. He was able to prevent this from occurring. He was then able to drive from the scene. As he did so, the offenders fled the scene, one of them heard gloating on the way that they had ‘just bashed a copper’.
[3]The rocks were from nearby railway tracks.
Mr Burgess was located by police and taken by ambulance to the Goulburn Valley Base Hospital for treatment. As well as lacerations to the head and a broken nose, he had sustained bleeding to the membranes surrounding the brain. He was highly traumatised and unable to work for ten days.
Sometime between 1.00am and 7.50am on 26 February 2020, the applicant and co-accused attended at an address in Bradford Road, Shepparton. They entered through the unlocked front door and stole the keys to a Mitsubishi Triton utility and an iPad. The homeowner was asleep in the house at the time. They then stole the vehicle.
At 1.35 am on 27 February 2020, the applicant and co-offenders travelled to a residential address in Aurina Drive, Wallan. They entered the premises while the male and female householders slept inside. They located the keys to a Ford Mustang sedan and a VW Golf hatch. They accessed the garage via an internal door and stole both vehicles.
HANKS CHARGES
Between 7.00 pm on 27 February and 7.00 am on 28 February 2020, the applicant and co-offenders stole a VW Tiguan from where it was parked in the street outside the owner’s home in Preston.
Between 10.00 pm on 28 February and 3.50 am on 29 February 2020, the applicant and co-offenders entered a residential address in Falconer Street, Fitzroy North while the homeowners slept inside. They stole a number of items from the address including a BMW 330i station wagon.
An attempted theft of a further BMW vehicle was carried out by the offenders in Coleman Street, Fitzroy North at 2.06 am, and the theft of some petrol at a service station in Thornbury at 6.39 am. CCTV footage indicates that the applicant was driving one of the stolen vehicles at this time.
At 7.45 am on 29 February 2020, the applicant and co-offenders, travelling in two of the previously stolen vehicles, attended at a residential address in Bennett Street, Alphington. The applicant entered the address but was seen by a householder. He ran from the scene and the offenders drove away.
On 1 March 2020 at 12.30 am, the applicant was present in and allegedly driving a stolen vehicle travelling in Camp Road, Broadmeadows when the front seat passenger kicked open the front door causing it to strike a cyclist travelling on the road in the same direction. The cyclist fell from his bike and the vehicle drove away. The cyclist was taken by ambulance to Royal Melbourne Hospital where he was treated for concussion and remained overnight.
On 1 March 2020 at 3.40 am, the applicant was present with co-offenders in the stolen VW Tiguan in Roseneath Street, Clifton Hill, when the vehicle was approached by members of Victoria Police including Sergeant Daniel Oldman. The applicant jumped into the driver’s seat and Sergeant Oldman reached into the driver’s door in an attempt to remove him. The applicant took hold of his arm and suddenly reversed backwards, causing Sergeant Oldman to fall heavily to the ground. The vehicle decamped along Roseneath Street.
On 2 March 2020 at about 5.30 pm, the applicant and co-offenders entered a restaurant in Wantirna South before stealing a red Nissan Qashqai parked outside the address.
On 2 March 2020 at 9.15 pm, the applicant and co-offenders robbed a male in Edinburgh Gardens, Fitzroy North, of his iPhone. It is alleged the applicant punched the male to the jaw after gaining possession of the phone.
On 3 March 2020 at 12.40 am, it is alleged that the applicant and two co-offenders attended at residential premises in Beaver Street, Aberfeldie. The applicant confronted the householder Craig Leury at the front door of the premises.[4] He was in possession of a weapon described by the victim as a large butcher’s knife. The applicant raised the knife and said, ‘Give me the fucking keys’. Mr Leury went inside and obtained the keys to his Range Rover and a black Mercedes Benz. He threw the keys outside. The applicant and the co-offenders stole the Range Rover but were unable to steal the Mercedes as the key battery was flat. The applicant and the two co-offenders were seen driving away from the location in two vehicles in convoy, one being the stolen Range Rover and the other one the earlier stolen Nissan Qashqai.
[4]Also present at the address were his wife, son and two daughters.
On 3 March 2020 at about 4.15 am, the stolen Range Rover was driven into a laneway near Pigdon Street in Princes Hill and three males got out of the vehicle. CCTV footage captured a person alleged to be the applicant in possession of a meat cleaver[5] and another male in possession of a long arm with an under/over configuration. Audio from the CCTV footage indicated that a noise consistent with the rifle being cocked was emitted from the weapon while it was being held in the laneway. The three offenders proceeded to an address in Pigdon Street where the householder Shaun Bell was in his study doing some work. The sensor light in the driveway operated and Mr Bell observed a person walk past his window. He went to the front door and opened the door. He saw a person holding a long arm rifle which was raised and pointed towards him. It is alleged, on the basis of a description given by Mr Bell, that this offender was the applicant. The offender demanded to be given the keys to the two Audi vehicles which were parked at the premises. Mr Bell observed a further three males approaching the doorway. He retreated inside the house, calling out to his wife to ring the police. She opened the bedroom door and observed the man with the gun standing inside the house. Mr Bell obtained the keys to one of the vehicles and threw it to the males. They then left the house. Two of them got into the Audi in the driveway but they did not succeed in starting it. They then returned to the laneway and drove away from the scene in the stolen Range Rover.
[5]On the prosecution case, this weapon was the same weapon observed in the possession of the applicant during the armed robbery in Aberfeldie.
Later on 3 March 2020, the applicant and one co-offender were arrested in a house in Preston. The keys to the stolen Range Rover and other stolen items were found in the house. The applicant was taken to Richmond Police Station where he was interviewed by police.
Personal background of the applicant
The applicant is 14 years of age and the youngest of four siblings. He is Aboriginal and has a borderline level of cognitive functioning, although he has not been diagnosed as suffering from an intellectual disability. Child Protection has had an involvement with him since 2009. His father died of cancer in 2016. Since early 2019, when his mother in effect relinquished care of him due to his poor behaviour, he has resided either in residential care, secure welfare or has been on remand at Parkville. He has significant issues with alcohol use and to a lesser extent, illicit drug use.
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.
The parties agreed that in this case, bail was required to be refused unless the applicant had demonstrated exceptional circumstances that justified his release on bail. This is because he is accused of committing a Schedule 2 offence within the meaning of the Act, including trafficking in a drug of dependence.[6]
[6]The Act, ss 3, 4AA(3), 4C(1A), 4C(2) and sch 2, item 24(b).
The applicant bore the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances existed, the Court was required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
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 requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
i.endanger the safety or 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.
The respondent bore the burden of proof in respect of the unacceptable risk test if that test arises for consideration. In considering the test, again, the Court is 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.
Exceptional circumstances
The meaning of exceptional circumstances has been considered in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[7] stated the relevant principles as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[8]
[7][2004] VSC 17.
[8]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
In the context of an application for a bail by a child, Forrest J in Re JO[9] noted:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. 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.[10]
[9][2018] VSC 438 (‘Re JO’).
[10]Ibid [14].
This passage has been cited with approval in a number of the decisions of this Court.
Children’s Court Clinic Report
Exhibited to the affidavit in support of bail was the Children’s Court Clinic Report of a consultant psychiatrist Dr David Thomas dated 13 November 2019. This report was seemingly prepared at the request of the Children’s Court prior to the first disposition of the applicant in that court. It was a detailed report based on an assessment of the applicant and a consideration of a plethora of reports in existence at that time. The report makes somewhat depressing reading. As well as noting the relatively low cognitive level of the applicant and the problematic behaviour exhibited by him for quite some time, Dr Thomas noted:
The applicant presents with a constellation of behaviours of concern characterised by a pattern of repetitive and persistent engagement in antisocial, aggressive and defiant conduct. These behaviours are severe and extreme, lie significantly outwith (sic) the bounds of what can be considered age-appropriate social expectations and have responded very poorly to adverse personal experiences and societal sanctions.
Dr Thomas noted that in discussing his ongoing offending behaviour, the applicant:
expressed the view that ‘it’s (crime) now a habit. It’s fun to do. I do it for the rush’. He was very ambivalent about the need to change his behaviour – ‘I would like to change but I won’t because it is too hard’. He admitted ‘I don’t care about people generally, unless it is an old person.
Dr Thomas went on to state:
Unfortunately, [the applicant’s] motivation to change is low and he already appears to have developed a liking for secure, custodial settings and regimes. He has also demonstrated a level of resistance to learning from punishment and adverse consequences of his actions.
He is very unlikely to participate voluntarily in treatment programs and while he may attend such sessions at the court’s direction, his engagement with psychological treatment is likely to be poor, leading to generally poor treatment outcomes.
The evidence
Senior Constable Cassandra Hanks gave evidence during the application. She was cross examined by Mr Anderson on matters largely concerning the strength of the case against the applicant on a number of the more serious charges.
Peta Briggs, a Youth Justice Team Leader who has been the case manager of the applicant since March, gave evidence about the applicant’s previous involvement with Youth Justice. Over the last six months, the applicant has been supervised by Youth Justice whether on bail or under a youth supervision order. His behaviour has been problematic as he has absconded and committed offences. In periods of time when he has not absconded, however, he has been willing to attend appointments and engage in the requisite services. Since being in Parkville from 21 April 2020, his behaviour has been quite good and he has engaged in a number of courses.
Ms Briggs informed the Court of the differences between the therapeutic residential unit now proposed for the applicant in Shepparton and his previous residential unit, and of the services which would be available to him. There is also the proposal that he return to the care of his mother in Yarrawonga three nights a week.
Ms Briggs acknowledged that the applicant has continued to have access to courses while in Parkville in spite of the COVID-19 issues. The supports and supervision available to him should he now be granted bail are essentially equal to those previously on offer under the youth supervision orders. So, too, in respect of the educational opportunities.
Kirsty Pearce, an Intensive Case Manager with Berry Street, gave evidence that the applicant, having been deemed to be a high risk young person, had had his case contracted to her to manage. She has worked with him for ten months when she was at Child Protection and in her present role at Berry Street. Ms Pearce gave evidence about staffing levels and supports at the proposed residential unit for the applicant. She made it clear that if he left the unit, that would immediately be reported to police. The behaviour of the applicant within residential units is actually quite compliant. The trouble with him is managing his risk of absconding and offending.
Ms Pearce informed the Court of the family reunification order which was made in the Children’s Court pursuant to which he would return to the care of his mother three nights a week. None of his criminal associates live in Yarrawonga. It is considered that there may be a therapeutic benefit to the applicant in being reunited with his mother.
Ms Pearce’s attention was drawn to some comments attributed to the applicant in the Clinic Report prepared last year in which he spoke of his attitude to offending and his lack of drive to change his behaviour. Ms Pearce stated that the current mindset of the applicant as she had observed it was different. He wants to stop offending, to be able to leave custody, and to return home. He would therefore be happy to comply with conditions of bail.
In cross examination, Ms Pearce acknowledged that the aim of family reunification had always been the ultimate goal since the mother of the applicant relinquished his care last year. That aim had been thwarted so far by his reoffending. Furthermore, his motivation to return home has fluctuated over the last 12 months.
The mother of the applicant also gave evidence before me, attesting to her desire to be reunited with her son, the importance of that to her, and her preparedness to report any breaches of bail by him in future.
The applicant’s contentions
Mr Anderson relied on a combination of the following matters to establish the existence of exceptional circumstances in justification of the grant of bail:
(a) The young age of the applicant. He is only 14 years old, and therefore, considerably younger that most child applicants for bail. All assessments under the Act should be viewed through the prism of that fact.
(b) He is an aboriginal child. This is another important matter given particular status under the Act.
(c) The importance of the aim of reuniting the applicant with his mother. It would be a beneficial thing for him to be able to reside with his mother three nights per week, in an area away from where his co-offenders live. There would be cultural supports and mentoring available to him on release.
(d) The relatively low cognitive level of the applicant.
(e) The relatively limited criminal history of the applicant.
(f) The fact that there are triable issues in respect of a number of the serious charges. Mr Anderson did not submit that the overall case was weak, but pointed out that there would be triable issues as to identity and level of involvement of the applicant in some of the charges, including the stabbing-attack upon DW, the reckless conduct charge in Broadmeadows, the armed robbery in Aberfeldie, and the aggravated home invasion in Princes Hill.
(g) Delay. The applicant has already been on remand for three months. Contested hearings are not currently proceeding in the Children’s Court due to the COVID-19 pandemic. It remains speculative when the business of the court will return to normal. A delay of a further four or five months is likely. The overall delay would be unacceptable in view of the age of the applicant. This is particularly so in view of the requirement of the Charter of Human Rights and Responsibilities for an accused child to be brought to trial as soon as possible.[11]
[11]Section 23(2), Charter of Human Rights and Responsibilities Act 2006.
(h) The prospect that the period of remand would exceed the eventual sentence. In this regard, Mr Anderson initially submitted that the applicant would be subject to a maximum penalty of one years’ detention in a youth residential centre for any individual offence, and a maximum of two years’ detention for a combination of offences. Mr Anderson submitted that the applicant would be likely to spend more time on remand than the sentence he may receive. He persisted in this submission even after Mr Payne correctly pointed out that after he turns 15 in late-July, the applicant would no longer be eligible for detention in a youth residential centre, but rather, would be subject to detention in a youth justice centre, with a maximum period of detention of four years for multiple offences. Indeed, Mr Anderson submitted that this impending change to a more severe jurisdiction would itself be a matter going to proof of exceptional circumstances, and ‘another example of the coercive position that this delay puts him in’.[12] He submitted that it would be grossly unjust for me to have regard to the sentencing regime which would apply after the applicant’s 15th birthday when assessing the matters set out in s 3AAA of the Act.
[12]Transcript 107.
(i) The current onerous conditions of remand due to the COVID-19 pandemic.
(j) The availability of significant supports and a high degree of supervision in the community.
(k) The desirability of fostering the reunification of the applicant with his mother.
(l) The fact that the applicant has demonstrated a change of attitude for the better in recent months.
Mr Anderson also relied on the above matters in seeking to resist the respondent’s contention as to the existence of an unacceptable risk. The risk needed to be viewed through the prism of the applicant’s age, Aboriginality and cognitive level. The appetite of the Court for risk should be so much higher in the case of the applicant than in the case of an adult. Whilst there was a risk that the applicant would again abscond and seriously offend, that risk was met by his change in attitude and by the availability of a high degree of supervision. In the circumstances, there was ‘good reason to think that he won’t abscond’.[13]
[13]Transcript 94.
The respondent’s contentions
In his submissions, Mr Payne acknowledged the importance of the status of the applicant as a child of Aboriginal heritage, and noted also the significance of his relatively low cognitive level. The decision to oppose bail in such a case was not one which would be taken lightly. The consideration of bail, however, needed to be informed by a proper analysis of the circumstances and application of the law. When such an analysis was carried out, it should be clear to the Court that exceptional circumstances had not been shown to exist.
Mr Payne emphasised the importance of the safety of the community as dictated by s 1B of the Act. In this case, the alleged offending is very serious, and was escalating in the period leading up to the applicant’s incarceration. Weapons had been used, and in respect of the aggravated home invasion, it could be concluded that the firearm was real, was loaded, and was ready for use. In that sense, the offending had ‘escalated to almost the top of the tree’.[14]
[14]Transcript 104.
The offending was made all the more serious, it was submitted, by the fact that the applicant was subject to two supervision orders at the time, and for most of the offending, subject also to a grant of bail with a curfew condition which was repeatedly breached.
In respect of the strength of the case, Mr Payne submitted that the overall case was strong.
The criminal history of the applicant was not lengthy, but included matters of violence, and in three separate appearances since his first one on 16 December 2019, he had been found guilty of 33 offences. Furthermore, he has been found guilty of committing an indictable offence whilst on bail on seven occasions.
In respect of the residential arrangements and supervision and support proposed for the applicant should he be released on bail, these were not markedly different from those which applied when the spree of offending occurred. The conditions were not sufficient to ensure the applicant did not re-offend then. There was no reason to suppose anything would be different now. This was particularly so in light of the disturbing attitudes expressed by the applicant in the report of Dr Thomas.
Dealing with the considerations in s 3AAA(1)(k) and (l), Mr Payne pointed out that after his 15th birthday in July, the maximum penalty applicable would be four years detention in a youth justice centre rather than two years in a youth residential centre. Notwithstanding the age and other circumstances of the applicant, it would be well open to a court in sentencing him to impose a period of detention which would exceed any period on remand.
The COVID-19 implications were relevant to the application, but should be considered to be merely one of the many surrounding circumstances to be taken into account. Those implications did not render the circumstances exceptional, and nor did they render the risk posed by the applicant acceptable.
In summary, Mr Payne submitted that it was not open to the Court to find that the applicant had demonstrated exceptional circumstances.
On the question of risk, Mr Payne submitted that there was no proper basis upon which to conclude that the disturbing attitudes held by the applicant to his previous offending as indicated in the report of Dr Thomas would suddenly have dissipated. Nor was there any reason to consider that the modest changes proposed for the housing, supervision of and control over the applicant would go anywhere close to rendering the risk he poses of endangering the community and reoffending an acceptable one.
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, 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.[15]
[15]Re JO ( n 9) [14].
Giving full force to the special status of children, 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.
In this case, the applicant, for reasons relating to the seriousness of his alleged offending and his status as someone subject to youth supervision orders and bail at the time, is in the position of having to establish the existence of exceptional circumstances that would justify the grant of bail. Whilst it has been said that any assessment of exceptional circumstances must be viewed through the prism of s 3B, that does not change the fact that such assessment must be a legitimate one based on a proper analysis of the surrounding circumstances.
The offending alleged against the applicant is exceptionally serious, and was seemingly escalating at the time of his apprehension. The brief recitation of the facts contained earlier in this decision is sufficient to clearly reveal the concerning and increasingly flagrant and dangerous nature of the alleged crimes. The potential for catastrophic consequences is obvious.
As for the strength of the case against the applicant which is the second consideration in s 3AAA,[16] there may well be triable issues, but it would be difficult to consider the case on most charges as being anything less than reasonably strong. As an example, the lack of strong proof that the applicant was the person armed with the long arm at the time of the Princes Hill aggravated home invasion does nothing to reduce the strength of the case against him on that charge. Evidence would suggest he may be identified as the offender observed in the laneway carrying a meat cleaver as the offenders headed towards the house. Whether he came into possession of the rifle before entry into the premises is immaterial to the strength of the case against him.
[16]Which is not to suggest that there is a particular order in which the matters in s 3AAA should be considered.
Mr Anderson described the criminal history as relatively limited. That may be so, but it is none the less troubling. In his few forays into the criminal justice system since he commenced on this path in December 2019, the applicant has busied himself with a stunning array of crimes involving dishonesty, violence, reckless conduct, and serious driving offences by a child who, to state the obvious, is not entitled to drive a motor car, and presents a serious hazard to the community every time he does so. He has committed indictable offences whilst on bail on numerous occasions and has repeatedly thumbed his nose at the courts and Youth Justice in his repeated breaches of youth supervision orders and his total unwillingness to abide by their conditions.
His history where bail is concerned is particularly troubling. As noted, he has been found guilty of repeated instances of committing indictable offences whilst on bail. Furthermore, at the time of the Van Emmerik and Hanks charges, the applicant was on bail with conditions designed to control his behaviour, and protect the community. The offending for which this grant of bail was made was itself serious entailing substantial group violence against a helpless victim. The response by the applicant to his release on bail, on the face of it, was to ignore the strictures of bail, ignore the requirement that he reside at a designated address, ignore the curfew that applied to him, and continue on a path of overtly violent and increasingly dangerous offending which betrayed a complete disregard for the welfare of his victims.
The same can be said for the fact that all of the current offending occurred during the currency of two youth supervision orders. These were orders designed to foster the applicant’s rehabilitation by providing stable accommodation and a high level of support. He completely spurned the opportunities provided to him, and showed complete contempt for the orders of the Children’s Court.
It is difficult to see this recent conduct of the applicant as being anything other than entirely consistent with the sentiments expressed by him as recently as 23 October last year when he was assessed by Dr Thomas for the preparation of the report to which I have referred. As things have turned out thus far, the soberingly pessimistic outlook attested to by Dr Thomas has been borne out by the conduct of the applicant since that time.
Turning to the personal circumstances and family supports available to the applicant, he still has the support of his mother, which, in time, may be an important aid to his rehabilitation. For now, at least, it must be acknowledged that she has been unable to control him, and her support has been insufficient to prevent him from heading down his current path.
Turning to s 3AAA(1)(k) and (l), it is difficult to know precisely when a contested hearing would be able to proceed in this case, although it may be considered that Mr Anderson was overly pessimistic in his assessment of the likely timing. Accepting, for now, that the period on remand may be as much as eight months, whilst that would undoubtedly be a very significant period of time for a young child to be held on remand, I do not believe that it would exceed the period of detention he would be likely to receive should he be found guilty of the serious charges he faces. In making that determination, it seems to me that there is nothing inappropriate in my having regard to the fact that if sentenced after his 15th birthday, the applicant would face a different maximum duration and mode of detention than that which currently would apply. That consideration, however, would not be an essential component of my view that it cannot be concluded in this case that the period on remand would exceed the likely period of incarceration.
One of the things at the heart of Mr Anderson’s submission as to exceptional circumstances, and very important on the question of risk as well, is the contention, largely based on the evidence of Kirsty Pearce, that the applicant’s attitude to his criminal offending has largely changed for the better. It would be good to believe that such a change has come over the applicant in the short period of time since he spoke to Dr Thomas, but for now at least, there is insufficient evidence to give the Court any confidence that that is so.
Taking into account all of the surrounding circumstances of this case, I was not satisfied that the applicant had established the existence of exceptional circumstances that would justify the grant of bail. For that reason alone, it would have been necessary for me to refuse bail.
For completeness, I indicated that even had I been satisfied of the existence of exceptional circumstances, I would have considered the risk posed by the applicant of endangering the community and committing offences while on bail to be unacceptable.
Mr Anderson submitted during the application that the risk with the applicant is the danger that if he absconds, he might offend seriously. He submitted that that risk was met by the asserted change in attitude of the applicant brought about by three months in custody, and the availability of a high degree of supervision upon his release. Mr Anderson went so far as to submit that there were good reasons to think that the applicant would not abscond.
I do not accept that there is any reason to think that the applicant would not abscond. He has a proven history of doing precisely that whenever it has suited him. This has happened in the very recent past, in circumstances where the applicant was well aware of the consequences to him should he do so. The availability of supervision has not prevented this from occurring.
Furthermore, his proven history has also shown that when absent from his accommodation, and able to meet up with his friends, the applicant has been inclined to behave in increasingly violent and dangerous fashion. I considered that there is an entirely unacceptable risk that if released on bail, the applicant would again abscond, and again engage in serious criminality endangering the public. As things currently stand, sad though it is to say it, I believe that the applicant poses a substantial danger to the community.
Conclusion
For the reasons stated above, the application for bail was refused.