Re Jakobsson (Bail Application)
[2015] VSC 585
•20 October 2015
| IN THE SUPREME COURT OF VICTORIA | REDACTED |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0148
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by CALEB JAKOBSSON |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2015 |
DATE OF JUDGMENT: | 20 October 2015 |
CASE MAY BE CITED AS: | Re Jakobsson (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 585 |
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CRIMINAL LAW – Bail – Culpable driving causing death and associated offences –Whether unacceptable risk – Youth – Bail granted on strict conditions – Bail Act 1977 s 4(2)(d)(i).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M J Rochford QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J D Kantor | Theo Magazis & Associates |
HIS HONOUR:
Caleb Jakobsson, the applicant, is aged 18 years. On 23 September 2015, he was involved in an incident which led to him being charged with a number of serious offences. Principally on the basis that the applicant posed an unacceptable risk that he would commit further offences whilst on bail, he was refused bail in the Magistrates’ Court at Melbourne on 30 September 2015. He now seeks bail from this Court.
The applicant has been charged with one charge each of culpable driving causing death;[1] dangerous driving causing death;[2] reckless conduct endangering life;[3] reckless conduct endangering serious injury;[4] failing to stop after an accident whereby a person was killed;[5] failing to render assistance after an accident whereby a person was killed;[6] driving in a manner dangerous;[7] driving at a speed dangerous;[8] unlicensed driving;[9] [*redacted]; and using an unregistered vehicle.[10]
[1]Crimes Act 1958, s 318.
[2]Crimes Act 1958, s 319.
[3]Crimes Act 1958, s 22.
[4]Crimes Act 1958, s 23.
[5]Road Safety Act 1986, s 61(3).
[6]Road Safety Act 1986, s 61(3).
[7]Road Safety Act 1986, s 64(1).
[8]Road Safety Act 1986, s 64(1).
[9]Road Safety Act 1986, s 18(1)(a).
[10]Road Safety Act 1986, s 7(1)(a).
It is alleged that, on 23 September 2015, at about 5.11pm, the applicant, who is unlicensed, was riding an unregistered motorcycle in the Carrum Downs Regional Shopping Centre car park, located in Hall Road, Carrum Downs. He was one of four riders, and was carrying a pillion passenger. At the same time, Ms Andrea Lehane was walking across a marked pedestrian crossing. The applicant overtook a car that had stopped at the crossing on its passenger side and collided with Ms Lehane. She was thrown several metres, and struck her head on the bitumen causing critical head injuries from which she later died. The applicant and his pillion passenger fell to the ground with the motorcycle. He immediately remounted the motorcycle, however, and fled the scene, without attempting to offer any assistance to the critically injured Ms Lehane. A reconstruction of the accident by members of the Major Collision Investigation Unit (‘MCIU’) suggests that the applicant was riding his motor cycle at 30 kilometres per hour in a 10 kilometre per hour speed zone at the time he struck Ms Lehane. When interviewed by police on 25 September 2015, the applicant admitted being the rider of the motorcycle which struck Ms Lehane.
The respondent opposes bail. Relying on s 4(2)(d)(i) of the Bail Act 1977 (‘the Act’), it is submitted that there is an unacceptable risk that if released on bail the applicant would fail to appear to answer his bail; commit an offence whilst on bail; interfere with witnesses; or endanger the safety or welfare of members of the public. [*redacted] There is a high risk, the respondent submitted, that if he is released on bail the applicant will continue to behave in a fashion that will put the public at risk.
[*redacted]
Through his counsel, the applicant submits that any risk might be rendered acceptable by the imposition of strict conditions. The applicant relies on the following:
· the applicant is aged 18 years of age;
· this is the applicant’s first time in custody;
· he has been in protective custody for much of his time on remand;
· [*redacted];
· delay, in that the committal case conference is currently listed for 19 January 2016;
· the applicant handed himself into the police, and co-operated with investigators;
· the applicant will not have access to motor vehicles or motor cycles at the proposed bail residence;
· he will have stable accommodation with family, and he has ties to the community; and
· the applicant will have treatment and support available to him on bail through Youth Justice.
Section 4(2)(d)(i) of the Act provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things spelled out in the subsection. The burden of persuasion as to unacceptable risk does not lie with the applicant, so that he is not required to show an absence of unacceptable risk. Whether the applicant does (or does not) pose an unacceptable risk requires an evaluation of the suggested risk (or risks), consistently with the requirements of s 4(3) of the Act.[11] As has been observed many times before, any grant of bail must carry some risk.[12] Section s 4(2)(d)(i) contemplates, however, that there are some risks which are acceptable; and that, in some cases, what might at first be thought to be an unacceptable risk may be rendered acceptable by, for example, the imposition of strict conditions of bail.
[11]Robinson v The Queen [2015] VSCA 161, [62]–[65] (Priest JA); Re Guirgis [2015] VSC 242, [40]–[43] (Priest JA).
[12]Ibid.
Mr Stephen Riordan, who is well-known to the Court, gave evidence before me. He is Senior Court Advice Officer for Youth Justice. He interviewed the applicant on 29 September 2015 in the cells of the Melbourne Custody Centre. The applicant was clearly very distressed and crying. Mr Riordan thought the applicant to be ‘vulnerable’ (and, as I was informed by counsel, the applicant has allegedly been assaulted in custody and has been held in protection). Mr Riordan also explained the Youth Justice Bail Program to the applicant, and the consequences of any breach. He recommended that the applicant, if released on bail, be required to attend the offices of Youth Justice [*redacted] tomorrow at 11.00am.
The applicant’s great aunt, Ms [*redacted], also gave evidence. I was impressed by her commitment and sincerity. She is prepared to have the applicant live with her at her three bedroom home, and she gave an undertaking to report the applicant to police if he breached any curfew or other condition imposed on a grant of bail. She made it clear that there is no public transport within 10 kilometres or so of where she resides [*redacted]. Further, although she has a motor vehicle, she and her circle employ a strict protocol to ensure that keys are kept within the possession of adults. Ms [*redacted] has assumed a great burden, and, were it not for her preparedness to take the applicant under her wing, I might not have granted him bail.
Based on all of the material, I have come to the view that the risks posited by the respondent can be rendered acceptable by the imposition of strict conditions.
Order
Bail will be granted to the applicant on his own undertaking with conditions that the applicant:
1. appear at the Magistrates’ Court at Melbourne on 19 January 2016;
2.reside [*redacted], and not to change residence without prior permission of a court;
3.not leave the residence [*redacted], any day between the hours of 10.00pm and 9.00am;
4. not enter the suburbs of Frankston or Carrum Downs;
5.not contact directly or indirectly, whether personally, by telephone, email, social media or other means, Lucas Frings, Luke Bate, Brayden Gates or Texas Bloomfield;
6. not drive a motor vehicle or ride a motorcycle;
7.report to [*redacted] Youth Justice [*redacted], at 11.00am on 21 October 2015;
8.be under the supervision of Youth Justice, and comply with all lawful directions of Ms Jacqueline Douch or her nominee, including submitting to such lawful medical, psychiatric or psychological treatment or counselling as directed;
9.except as prescribed by a lawful medical practitioner, not consume alcohol or drug of dependence;
10.report every Monday, Wednesday and Friday to the Officer-in-Charge of the police station [*redacted] between the hours of 10.00am and 9.00pm;
11.forthwith surrender all valid passports (if any) to the Informant and not apply for or possess any other passport or travel document;
12. not attend any point of international departure;
13. not leave the State of Victoria;
14.not contact or approach any witness for the prosecution other than the Informant.
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