Re It (No 2)
[2021] VSC 636
•22 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0350
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by IT |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF JUDGMENT: | 22 September 2021 |
CASE MAY BE CITED AS: | Re IT (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 636 |
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CRIMINAL LAW — Application for bail — Charge of murder — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Chernok with Mr T Brown | Ann Valos Criminal Law |
| For the Respondent | Mr E Dober | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
IT has been charged with murder, affray and violent disorder arising out of the death Solomone Taufeulungaki outside the Deer Park Library on 16 June 2020 (‘the D/S/C Kaitlyn Gent matters’). The facts of the case are set out in detail in my reasons for granting the applicant bail on those matters on 4 November 2020.[1] These reasons should be read in conjunction with those reasons.
[1]Re Applications for bail by AP, IT, NT, DP and JR [2020] VSC 730.
On 29 June 2021 I revoked the applicant’s bail on those matters. At that time the applicant was on bail for another set of matters for which he was charged on 11 February 2020 (‘the Elliot matters’) and for which he was on bail at the time he was originally granted bail by me. That bail continues, it was not and could not have been before me at the time of the revocation of bail.
The applicant was arrested on 16 June 2021 and charged by S/C Tamara Olley with affray, robbery, violent disorder, recklessly causing injury and committing an indictable offence whilst on bail (“the Olley matters”). The applicant’s alleged involvement in those matters was part of the material relied upon by the prosecution which lead to the revocation of his bail.
By application dated the 7 September 2021 the applicant makes application for bail in all three sets of matters. The Elliot matters are not before me. The prosecution submitted that the application in the Olley matters should be before the Childrens’ Court but I am satisfied that I can hear the application in the Supreme Court’s original jurisdiction. Such matters are heard every day. It had been further submitted that in accordance with the provisions of s 18AA of the Bail Act 1977 (“the Act”) that the applicant would need to show new facts or circumstances because his original bail had been revoked. I told the parties at the hearing of the application that I regarded the provisions of s 18AH as being in wide enough terms to allow the applicant to make a fresh application. If I am wrong about that I am satisfied that the applicant has shown new facts and circumstances by the provision of a Neuropsychological Assessment Report dated 3 August 2021 prepared by Dr Matt Treery Senior Clinical Neuropsychologist and Clinical Psychologist.
The applicable legislation
The applicant has been charged with murder and is required to show exceptional circumstances which warrant his admission to bail.[2] I found that exceptional circumstances had been made out on the applicant’s earlier application and it has not been put that I should not find differently here. I would in any event find, that the report referred to above, adds to the reasons for finding the existence of exceptional circumstances.
[2]The Bail Act 1977 (‘the Act’) ss 4AA(1), 4A(1A) and 4A(2).
On the hearing of the application the parties accepted that the issue on the application was whether or not the respondent had shown that the applicant was an unacceptable risk that he would, if released on bail, either endanger the safety or welfare of any person or commit an offence while on bail.
Respondent’s submissions
The respondent’s submission was a straight forward one. It was submitted that the applicant’s performance on bail which lead to the revocation of his bail, and his conduct since the revocation of bail, was such that, without significant changes to his attitude and circumstances, he was an unacceptable risk.
In her affidavit opposing the grant of bail the respondent’s solicitor summarises the matters as follows:
History of Applicant’s previous non-compliance with bail conditions and further alleged offending
[25]The affidavit of D/S/C Kallyn Gent dated 10 September 2021 and exhibited as Exhibit KMV1 to this affidavit details the alleged offending and previous breaches of the Applicant at paragraphs 6 to 55.
[26]In summary, the following is alleged against the Applicant:
(a)The applicant was charged with recklessly causing injury, unlawful assault, assault by kicking and assault with a weapon for alleged offending on 28 August 2019 (The Elliott matter). The accused was released on bail on 2 January 2020 and was on bail for the Elliott matter at the time of the alleged offending in this matter.
(b)The Applicant was spoken to by police on 23 March 2021. The Applicant was in breach of 3 of his bail conditions, namely the curfew condition, to not be in a group larger than 5 and not to consume alcohol.
(c)The Applicant is alleged to have been involved in an incident on 12 May 2021 wherein he and a group of males attended another school and approached a male to fight. The group was seen with machetes and knives. This incident involved breaches of 3 conditions of bail.
(d)The Applicant is alleged to have been involved in an incident in the company of a co-accused for the murder charge, [AK], and others on 11 June 2020. It is alleged that [AK] was in possession of a knife. A 17 year-old boy was seriously injured and the Applicant was charged with recklessly causing serious injury and other charges. His presence breached 3 conditions of his bail. This is the Olley matter for which he has been remanded by the Children’s Court. He was on bail for this matter at the time of this alleged offending and remains on remand in the Children’s Court.
Conduct of Applicant whilst in custody
[27]It is alleged that on 10 July 2021 the Applicant was involved in a physical altercation with another young person. This incident is described at paragraph 59 of the Affidavit of D/S/C Kallyn Gent exhibited to this affidavit at KMV1.
[28]In the report of Dr Matt Treeby, Senior Clinical Neuropsychologist and Clinical Psychologist, exhibited to the Affidavit of Mr. Ben McGrath at Exhibit BM-4, Dr Treeby states at page 3, that at one stage during his interview with the Applicant on 29 July 2021, “became markedly angry and made obviously futile attempts to kick down a door to engage in conflict with another young person who passed the assessment room”.
There is no doubt that those matters must be taken seriously and indicate that the applicant is a risk of re-offending and in that sense, of endangering the safety and welfare of others.
There are, however, a number of considerations which have to be born in mind when considering the application from the applicant’s position.
i.He is still young, born [redacted] 2005, now 16 (14 at date of alleged offending).
ii.I am obliged to have regard to s 3B of the Act.
iii.He has been assessed by Dr Treeby. On assessment his overall level of intellectual function fell in the borderline range. Although he would not meet the criteria for a diagnosis of intellectual disability or other diagnosable neurodevelopement disorder.
Dr Treeby reported:
With that said [IT] does have some long-standing cognitive limitations and he has a Borderline level of overall intellectual function (FSIQ =75, 5th percentile). It follows that he is likely to experience greater day-to-day functional difficulties across life domains relative to many other young people of his age.[3]
[3]Report of Dr Matt Treeby, Senior Neuropsychologist and Clinical Psychologist, ARBIAS Neuropsychological Report, dated 3 August 2021, page 5.
Dr Treeby further noted that IT has particular difficulties with verbal comprehension and communication.
iv.He has strong family support in a new home.
v.He has a part time job available.
vi.He has continued his education whilst in custody and there are plans in place for that to be continued on release. His future education will take into account Dr Treeby’s report.
vii.He has the positive support of Miracle Papa through Charis Mentoring (Pasifika Cultural Support).
viii.He has been accepted for further sessions with to Drug Health Services Adolescent Community Programs Western Health.
ix.He has written a letter to me indicating that he does have at least some understanding of the seriousness of his position.
x.He has now been in custody for more than 3 months.
xi.He has continued to have the support of the Youth Justice Bail Service.
Youth Justice Bail Service have prepared a comprehensive draft plan for the applicant if he is to be released on bail. That plan addresses a number of the difficulties he has had in the past.
I am satisfied that he does now have a better understanding of what is required of him. It also seems clear that those dealing with the IT have a more clear understanding of him following Dr Treeby’s report. That is particularly so relating to his intellectual functioning and his difficulties with communication.
I am satisfied that with the imposition of appropriate conditions IT would not constitute an un-acceptable risk if released on bail.
I indicate that I received an undertaking from Mr JT at the time of the original application for bail on 4 November 2020 that he would report to the court any breach of bail. Solicitors for the applicant have confirmed that Mr JT is still prepared to report any breach of bail or bail condition to Youth Justice and the police. I will arrange for him to be provided with a copy of this bail order.
IT be admitted to bail on his own undertaking and on the following special conditions:
With respect to the matter before this Court
a) He attend the Supreme Court of Victoria at Melbourne on 11 October 2021 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 [redacted] in Victoria, and not change that address without the leave of the Court.
c) He remain at those premises between the hours of 7:00pm and 7:00am each day for the duration of bail, unless in the company of a parent or nominee of Youth Justice.
d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
e) He own or possess one mobile phone and provide that phone number to the Informant and that, if requested to do so by a member of Victoria Police, he provide any password to enable the search of that phone.
f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
h) He engage with Youth Justice and obey any lawful directions of Youth Justice and undertake any treatment directed by them, attend any appointment arranged by them and engage in any school based program or training as arranged or directed by them.
i) He not contact, directly or indirectly, the co-accused, being VN, AK, DP, NT, CN, JR, AP, ST, Taataa Tafa and Soreysa JIBRAEL for the duration of the bail period.
j) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
k) He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program or when attending his church youth group with his brother and/or sister.
l) He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
m) He not access or use any form of social media.
n) He not leave the State of Victoria.
o) He reappear before the Court for judicial monitoring to review his compliance with this order at 10:15am on 11 October 2021, and any further dates this Court appoints during the course of this order.
With respect to the Olley matter:
a) He attend the Children’s Court of Victoria in Melbourne on 28 September 2021 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.
And otherwise, on the same conditions except Condition ‘i’
b) He reside at [redacted] in Victoria, and not change that address without the leave of the Court.
c) He remain at those premises between the hours of 7:00pm and 7:00am each day for the duration of bail, unless in the company of a parent or nominee of Youth Justice.
d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
e) He own or possess one mobile phone and provide that phone number to the Informant and that, if requested to do so by a member of Victoria Police, he provide any password to enable the search of that phone.
f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
h) He engage with Youth Justice and obey any lawful directions of Youth Justice and undertake any treatment directed by them, attend any appointment arranged by them and engage in any school based program or training as arranged or directed by them.
i) He not contact, directly or indirectly, the co-accused, being AK, BP, KL, NC, MP, LK and VC for the duration of the bail period.
j) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
k) He not be present in any group of greater than 5, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program or when attending his church youth group with his brother and/or sister.
l) He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.
m) He not access or use any form of social media.
n) He not leave the State of Victoria.
o) He reappear before the Court for judicial monitoring to review his compliance with this order at 10:15am on 11 October 2021, and any further dates this Court appoints during the course of this order.
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