Re JB
[2024] VSC 549
•6 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0169
| Between: | |
| JB | Applicant |
| -and- | |
| VICTORIA POLICE | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING & ORDERS: | 1 August 2024 |
DATE OF WRITTEN REASONS: | 6 September 2024 |
CASE MAY BE CITED AS: | Re JB |
MEDIUM NEUTRAL CITATION: | [2024] VSC 549 |
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CRIMINAL LAW — Application for bail — Applicant charged with inter alia car theft, attempted armed robbery, armed robbery, and aggravated burglary — Offences allegedly committed while applicant on bail and summons on numerous other charges — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others — Applicant aged 16 — When applicant previously on bail on three occasions, supported by Youth Justice — No prior convictions or findings of guilt — Applicant on remand in youth justice centre for 45 days — Unlikely to be sentenced to a further period of youth detention — High risk of preventative detention if not bailed — Suitable for Youth Justice Intensive Supervised Bail Program — Other conditions of bail proposed — Particular considerations applicable to bail application by child — Exceptional circumstances established — Asserted risks not unacceptable — Bail granted on own undertaking with conditions— Bail Act 1977 (Vic), ss 3AAA, 3B, 4, 4AA, 4A, 4D & 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms T. Casey | Shanelle Veit Lawyers |
| For the Respondent | Mr J.J. Jassar | Victoria Police |
HIS HONOUR:
Overview
On 1 August 2024, JB, aged 16, made an application for bail in this Court.[1] He was arrested on 17 June 2024 and charged by Senior Constable Cameron Banks with offences including car theft,[2] attempted armed robbery,[3] armed robbery,[4] and knowingly dealing with proceeds of crime.[5] He has been in custody for 45 days in a youth justice centre since that arrest.
[1]The applicant is described by use of the randomly chosen letters JB because he was under the age of 18 at the time of alleged offending.
[2]Contrary to the Crimes Act 1958 (Vic), s 74.
[3]Contrary to the Crimes Act 1958 (Vic), ss 75A and 321M.
[4]Contrary to the Crimes Act 1958 (Vic), s 75A.
[5]Contrary to the Crimes Act 1958 (Vic), s 194(2).
Despite some confusion initially, it became apparent that JB was also on remand on charges laid by Detective Acting Sergeant Marc Callegaro alleging offences of aggravated burglary[6] and theft committed on 9 June 2024.[7] It was therefore agreed at the hearing that the bail application was made in relation to both matters.
[6]Contrary to the Crimes Act 1958 (Vic), s 77(1).
[7]I was informed by the parties that, with respect to this alleged offending, the last order of the relevant Children’s Court indicated that JB was on remand. However, the Children’s Court had told the parties the day before this hearing that this was in error and the matter should be on summons.
After hearing evidence and submissions, I gave brief ex tempore reasons to the effect that I was satisfied that exceptional circumstances exist that justify a grant of bail, and that I was not satisfied that there is an unacceptable risk that, if bailed, JB would endanger the safety or welfare of any person.
Accordingly, I granted the application and ordered that JB be released on bail on his own undertaking, albeit on a number of conditions.
I promised to publish detailed written reasons for my decision and orders at a later time. These are those reasons.
Summary of alleged events
Senior Constable Cameron Banks’s matters
The alleged events giving rise to the charges laid by Senior Constable Banks may be summarised in this way.
Early in the morning on 12 June 2024, an unknown male was heard opening the laundry door to a Surrey Hills home. The occupant observed an intruder in her hallway. The intruder then located car keys in the residence, and used them to steal a Lexus Wagon.
Later that day at 1:15 p.m., it is alleged that JB, a co-accused and an unknown male used this stolen Lexus to attend a ‘Boating Camping Fishing’ store in Mentone. Once inside the store, JB and the males stole five orange and black Gerber machetes and a pair of crocs valued at about $325. This incident is captured on CCTV.
Two days later, on 14 June 2024, at around 6:35 p.m., it is alleged that JB and a group of males, some known and some unknown to police, attended a milk bar in Noble Park North, again arriving in the same stolen Lexus.[8] The males entered the store with orange and black machetes. They ran to the counter area, and one of the males brandished a machete against one of the milk bar owners. However, this owner and another, armed only with a milk crate and a broomstick, eventually fended off the group, causing them to flee without stealing anything. This incident is also captured on CCTV.
[8]The affidavit in response, prepared by Victoria Police, appears to be inconsistent as to whether there are four members of this group or three, sometimes referring to the ‘co-accused’ as being part of the group and other times referring to the co-accused as being separate to the group.
Although JB did not enter the store, it is alleged that, having created a makeshift face cover for himself, he waited by the car. He handed over a machete to the other males and, while wielding a machete himself, joined in the confrontation outside the store with the two owners. Eventually, JB and the group got back into the Lexus and left.
Not to be deterred, it is alleged that JB and this group drove to another milk bar, again in the stolen Lexus, at about 7:15 p.m. in Mulgrave. This same group of males entered the second milk bar, again brandishing machetes and confronting the milk bar owners. On this occasion, the group managed to steal an unknown quantity of cigarettes and around $2,000 in Australian currency. While this was occurring, JB was at the front door of the milk bar, holding it open. The store owners chased JB and his group, who again fled in the Lexus. This incident is also captured on CCTV.
Police recovered the Lexus the following day. Forensic officers identified JB’s fingerprints inside the vehicle. Phone records indicated that his mobile phone was, at the relevant times, in close proximity to the location of the armed robbery, the attempted armed robbery, and where the police recovered the stolen Lexus.
JB was arrested on 17 June 2024 at a residence in Mount Waverley, near where the Lexus was found. A search warrant was executed at this residence, where the police found and seized around $2,000 in Australian currency.
Detective Marc Callegaro’s matters
Turning to Detective Callegaro’s charges, he alleges that, at about 5:00 a.m. on 9 June 2024, JB and a co-accused forced entry into a house at Balwyn North through a window on the lower level. Occupants of the premises were asleep in the bedrooms upstairs. Both intruders went upstairs and stole the keys to a Porsche Cayenne and a CBA credit/debit card. They then stole the Porsche (valued at $90,000) that was parked in the driveway. The stolen credit/debit card was also used for a number of unauthorised transactions.
Police have examined fingerprints at the home and from the Porsche. It is alleged that these prints belong to JB.
Previous bail application
JB made an application for bail in the Children’s Court on 4 July 2024. Bail was refused, and he has been in custody up until the date of this hearing.
Applicable tests for bail
Because JB is charged with committing a Schedule 2 offence (namely, armed robbery[9]) while on bail for a charge of another Schedule 2 offence (namely, aggravated burglary[10]), bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[11]
[9]See item 22(a) of Schedule 2 of the Bail Act 1977 (Vic).
[10]See item 22(b) of Schedule 2 of the Bail Act 1977 (Vic).
[11]See ss 4AA(2)(c)(i) and 4A of the Bail Act 1977 (Vic).
Further, if that test is met, bail still must be refused if the prosecution satisfies the Court that there is an unacceptable risk that, if released on bail, JB would endanger the safety or welfare of any other person.[12] If the Court is not so satisfied, bail must be granted.[13]
[12]See ss 4D(a) and 4E(1)(a)(i) of the Bail Act 1977 (Vic). There is no assertion that any other of the specified risks in s 4E(1)(a)(iii) or (iv) are present.
[13]See s 4 of the Bail Act 1977 (Vic).
In considering each of these statutory tests, the Court must take into account the so-called “surrounding circumstances” listed in s 3AAA of the Bail Act 1977 (Vic), which in this case include at least the following matters:[14]
[14]See ss 3AAA(1), 4C(3) and 4E(3)(a) of the Bail Act 1977 (Vic).
a)whether, if the accused were found guilty of the offences with which he is charged, it is likely that he would be sentenced to a term of imprisonment and, if so, that the time he would spend remanded in custody if bail is refused would exceed that term of imprisonment;
b)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence or offences;
c)the strength of the prosecution case;
d)the accused’s criminal history;
e)the extent to which the accused has complied with the conditions of any earlier grant of bail;
f)whether, at the time of the alleged offending, the accused was on bail for another offence, was subject to a summons to answer to a charge for another offence, was at large awaiting trial for another offence, or was on remand for another offence;
g)the accused’s personal circumstances, associations, home environment and background;
h)any special vulnerability of the accused, including being a child;
i)the length of time the accused is likely to spend in custody if bail is refused; and
j)the likely sentence to be imposed should he be found guilty of the offence or offences charged.
In considering whether a risk of the kind alleged is an unacceptable risk, the Court must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[15]
[15]See s 4E(3)(b) of the Bail Act 1977 (Vic).
Evidence of Youth Justice advanced case manager
In addition to the summary set out earlier, I heard viva voce evidence and received a detailed report from JB’s advanced case manager from Youth Justice, Dalia Bailo.
In her report, Ms Bailo said that, since September 2023, JB has been on remand three times and has been on three periods of Youth Supervised Bail. During that period, he attended 27 of 37 of his scheduled appointments with Youth Justice.
Ms Bailo explained that JB was considered suitable for a Youth Justice Intensive Bail Program, which, as the name suggests, is more intensive than the Youth Supervised Bail that previously applied to him. In particular, and among other things, she explained the following.
First, the intensive program contains more onerous conditions, greater support, and stricter reporting obligations than Youth Justice Supervised Bail.
Second, the program requires that JB engage in education or work or attend a training course (at least 15 hours a week), as well as engage with Youth Justice Community Support Service and Caraniche Forensic Support Service. JB has agreed to participate in the program and accepts there is little room for error in non-compliance.
Third, Ms Bailo and relevant members of the Youth Justice Care Team speak Arabic, and can readily communicate with JB and his family. This is in contrast with JB’s previous Youth Justice case worker who did not speak Arabic.
Fourth, as he was expelled from a secondary school, Youth Justice have organised JB’s enrolment at another school, attending half-days originally. An expression of interest has been submitted to a college that offers the Victorian Pathways Certificate, in case he struggles attending the secondary school.
Fifth, intensive bail involves a non-compliance response plan, which identifies non-compliant behaviour, outlines the responsibilities of each party, and guides how incidents of non-compliance are responded to.
Finally, JB’s family undertook five months of multisystemic therapy, providing the family and the Care Team with a maintenance plan that empowers JB’s family, particularly his mother, to implement boundaries.
Other outstanding charges
JB has no prior criminal convictions or findings of guilt.
However, he is on bail or summons in relation to six outstanding matters, including charges of car theft, theft, false imprisonment, robbery, burglary, aggravated burglary, committing indictable offences on bail, unlawful assault, common law assault, affray, recklessly causing injury, dealing with property suspected of being proceeds of crime, and throwing a missile.
Exceptional circumstances
Submissions
Ms Casey, who appears for JB, relies on a combination of factors as amounting to the necessary exceptional circumstances.
Mr Jassar, who appears for Victoria Police, accepts that it is open for the Court to find exceptional circumstances.
Consideration
In my view, the following matters, in combination, amount to exceptional circumstances justifying a grant of bail.
First, at only 16, JB was, at law, a child at the time of the alleged offending, and he still is now. Section 3B of the Bail Act requires a court to take into account a number of issues when considering whether or not to grant bail to a child. Relevantly, s 3B is in these terms:
Determination in relation to a child
(1) In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act) the following issues—
(a) the child’s age, maturity and stage of development at the time of the alleged offence;
(b) the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
…
(d) the need to preserve and strengthen the child’s relationships with—
(i) the child’s parents, guardian and carers; and
(ii) other significant persons in the child’s life;
(e) the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f) the importance—
(i) of supporting the child to engage in education, or in training or work; and
(ii) of that engagement being subject only to minimal interruption or disturbance;
(g) the need to minimise the stigma to the child resulting from being remanded;
(h) the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
(i) a risk that the child will become further involved in the criminal justice system; and
(ii) a risk of harm;
(i) the need to ensure that the conditions of bail—
(i) are no more onerous than is necessary; and
(ii) do not constitute unfair management of the child;
(j) the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort’s over-representation in the criminal justice system—
…
(iii) children from culturally and linguistically diverse backgrounds;
(k) whether, if the child were found guilty of the offence charged, it is likely—
(i) that the child would be sentenced to a term of imprisonment; and
(ii) if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(l) any of the following issues that arise—
(i) any ill health the child experiences, including mental illness;
(ii) any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
(iii) the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;
(m) any other relevant factor or characteristic.
(1A) The bail decision maker is to take account of an issue set out in subsection (1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time.
(1B) Despite subsection (1A), the bail decision maker is to take account of the issues set out in subsection (1)(b) to (j) whether or not any evidence or information is before the bail decision maker in respect of those issues.
(2) In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3) Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
Many of the factors in s 3B apply to JB’s application. For example, releasing JB on bail would allow the relationship between him and his parents to be strengthened or at least preserved, would promote his education, would minimise the stigma associated with incarceration, and would reduce the criminogenic risks of further incarceration, particularly for a child like JB, who is of Sudanese descent. There is evidence before the Court, which I accept, that JB presents as an impressionable young person, one easily influenced by peers. As a result, in JB’s case, the criminogenic impact of further time in custody is likely to be high. Further, releasing him on bail would give proper weight to the injunction that incarceration is regarded as a last resort for a child.
Second, it is significant that JB has no prior convictions or findings of guilt.[16]
[16]However, JB has a history of matters that were discharged at Children’s Court in March 2024 upon completion of a diversion program, which involved 14 separate matters and 24 charges.
Third, as we have seen, JB has been found suitable for the Youth Justice Intensive Supervised Bail program. This is the first time an intensive bail program has been available to JB. Further, having seen and heard her give sworn viva voce evidence, Ms Bailo convinced me of the suitability of JB for this particular bail program, and of the program’s potential efficacy. The program has a clear structure, is adapted for his purposes, should ensure that his time is largely taken up with pro-social activities, and has a strong mechanism for dealing with non-compliance.
Finally, if JB is found guilty of, or pleads guilty to, the outstanding charges, it is likely he would not be sentenced to a further period of detention. Mr Jassar conceded that, given his age and lack of prior convictions or findings of guilt, a youth supervision order or probation would be a more likely disposition. It follows that refusing bail in the circumstances could very well amount to preventative detention. The law in this State rightly sets its face against preventative detention, and all the more so when the potential detainee is a child.
So, for at least the foregoing reasons, I am satisfied that JB has established exceptional circumstances that justify bail.
Unacceptable risk
Submissions
I turn now to the prosecution assertion that there is an unacceptable risk that, if bailed, JB would endanger the safety or welfare of any other person.
I shall commence with Ms Casey’s submissions. First, Ms Casey submits that, although there is certainly risk of the kind asserted, it must be remembered that JB is a child, and that any risk must be analysed through the prism of s 3B of the Bail Act. Some of the same factors in s 3B that were considered on the question of whether the threshold of exceptional circumstances has been reached also go to the question of whether there is an unacceptable risk. For example, as we have seen, the remand of a child in custody is considered a last resort. At the date of the hearing, JB had spent 45 days on remand in a youth justice centre. His longest period in custody previously was 14 days. I accept that this recent period on remand has been a salutary experience for JB.
Second, Ms Casey submits that the strictures of the Youth Justice Intensive Bail Program will keep JB occupied with pro-social activities, and will give him less opportunity to engage in criminal offending that might endanger others. Further, the program, hopefully, will educate him in a way that reduces his inclination to engage in such behaviour.
Third, another consideration already touched on above is this. If he is not bailed, JB is likely to spend more time remanded in custody than any term of detention in a youth justice centre likely to be imposed were he convicted of the charges. In Ms Casey’s submission, this factor must affect an assessment of whether a risk of the type asserted is unacceptable or not.
Finally, Ms Casey otherwise submits that any risk of the asserted kind can be sufficiently ameliorated by the proposed bail conditions.
In contrast, Mr Jassar submits that there is an unacceptable risk that, if released on bail, JB would endanger the safety or welfare of any other person. He relies on the extent and gravity of the alleged offending, as well as JB’s “escalating” behaviour, which includes incidents while in custody, expulsion from school, and reported aggression at home.
Further, Mr Jassar submits that JB’s history of non-compliance with bail conditions is troubling. While on bail, JB has allegedly offended with several co-accused and has frequently absconded from home.
And, although Mr Jassar acknowledges the importance of preserving JB’s living arrangements and his relationship with his family, he submits that all of JB’s alleged offending occurred while residing at his parents’ home. Further, JB has had a number of supports available to him, and, yet, in spite of these supports, the alleged offending did not appear to abate, let alone cease.
Consideration
I am satisfied that the same factors which establish a finding of exceptional circumstances go to the question of whether there is an unacceptable risk that, if bailed, JB would offend in ways similar to his current alleged offences and thereby endanger the safety or welfare of others.
Of course, there is certainly some risk. Given the extent of the alleged offending, JB’s history of non-compliance with bail conditions, and further evidence of anti-social behaviour, this risk cannot be said to be insignificant. But the law is that the asserted risk must be an unacceptable risk to deny bail.
Here, I am satisfied that the proposed intensive bail program, not previously available to JB, is an important measure in ameliorating that risk. The intensive program offers targeted and co-ordinated support for JB, has a strict timetable that allows for routine and structure, facilitates JB’s learning and education, and contains clear avenues for urgently addressing concerns about bail compliance.
Further, although JB has allegedly offended before while residing at his parents’ home, Ms Bailo’s viva voce evidence demonstrates that his mother now has greater support from the Youth Justice Care Team and, through the five-month program, is empowered to deal with any absconding or behavioural issues, particularly now that JB will have a phone.
Although JB has demonstrated poor bail compliance, and has also done so while being supported by the Youth Justice Supervised Bail Program, it must be remembered that JB is still a child, has no previous convictions or findings of guilt, and has not participated in an intensive bail program before. JB’s expressed willingness to participate in such an onerous program is also important, particularly as not every child consents to do so, as Ms Casey pointed out.
Further, as indicated earlier, I consider that there is a grave risk of preventative detention should I refuse bail. Ms Casey is right to submit that this factor is relevant when assessing unacceptable risk. As Maxwell P and Kaye JA said in HA (a pseudonym) v The Queen:[17]
While each case must be decided according to its own individual facts and by reference to the defined ‘surrounding circumstances’ specified in s 3AAA(1) of the Act, in the present case, the consideration, that it is unlikely that the appellant will be sentenced to a term of detention, was necessarily a most powerful factor in determining whether, if the appellant were granted bail, the risks of him offending, or endangering others, were unacceptable.
[17]Ha (a pseudonym) v The Queen [2021] VSCA 64 at [66].
In addition, the proposed conditions of bail, which I have discussed with counsel, contribute to my conclusion that I am not satisfied that, if bailed, there would be an unacceptable risk of the kind asserted.
JB should therefore be given the opportunity to demonstrate that he can be on bail without endangering the safety or welfare of others, notwithstanding the extent and gravity of the alleged offending.
It follows that I am satisfied that bail must be granted.
Orders
Accordingly, I order that JB be admitted to bail on his own undertaking and on the conditions that he:
(a)is to reside at [redacted] (“the residence”);
(b)is to comply with all lawful directions of the Youth Justice Intensive Bail Program;
(c)is not to leave his residence between 9:00 p.m. and 6:00 a.m. unless in the company of a parent (“the curfew hours”);
(d)is to present himself at the door of the residence during the curfew hours, if requested to do so by a member of Victoria Police;
(e)is not to contact, or associate with, any co-accused, including [redacted], except in so far as such contact or association may arise at Youth Justice appointments or at school;
(f)is not to contact witnesses for the prosecution, save for the informants;
(g)is to attend [a nominated secondary school] or an alternative school program as required or directed by [the nominated secondary school] and/or as directed by Youth Justice; and
(h)is to appear at [redacted] Children’s Court at 9:15 a.m. on 15 August 2024, and thereafter as directed by that court.
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