Re JB
[2020] VSC 184
•16 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0068
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for Bail by JB |
---
JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 April 2020 |
DATE OF RULING: | 16 April 2020 |
DATE OF REASON: | 17 April 2020 |
CASE MAY BE CITED AS: | Re JB |
MEDIUM NEUTRAL CITATION: | [2020] VSC 184 |
---
CRIMINAL LAW – Bail – Multiple charges including theft, handling stolen goods, reckless conduct endangering serious injury – Committing indictable offence on bail – Whether compelling reason established – Relevance of COVID-19 pandemic – Whether unacceptable risk of re-offending and endangering public safety – Bail Act 1977, ss 1B, 3B, 3AAA, 4AA, 4C,4D, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Richter | Patrick Allen Law |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
The applicant, JB, applies for bail in respect of a number of charges including theft, handling stolen property, reckless conduct endangering serious injury, possession of cannabis, unlicensed driving and committing an indicatable offence while on bail.
The applicant was born on 11 April 2003. At the time of his arrest, on 16 March, he was 16 years of age, and he is now 17 years of age. After his arrest, he was remanded in custody. On 7 April 2020, an application for bail was refused at the Dandenong Children’s Court on the ground that there is an unacceptable risk that he would commit an offence while on bail, endanger the safety or welfare of another, and fail to surrender himself in accordance with the conditions of bail.
There are three separate informants in respect of the charges on which the applicant was remanded, namely Leading Senior Constable Halion, Senior Constable Clarke and Senior Constable Swainson. At the time of his arrest, he was on bail in respect of charges that had been laid on 20 October 2019 by Constable Berryman.
The current charges concern a series of offences in which it is alleged that the applicant was implicated between 6 March and the date of his arrest on 16 March.
For the purpose of this application, it is only necessary to summarise the circumstances of the offending in short compass.
In the early hours of 5 March 2020, five unidentified youths broke and entered into a house in which a young couple was living with their newborn baby. There they stole a number of sets of vehicle keys, and used one of them to access and steal a Mercedes Benz vehicle that was parked in the driveway. On 9 March, the applicant drove the Mercedes Benz to Coles Express in Berwick. There he filled the vehicle with $79.45 worth of petrol, and drove off without paying. The incident was captured on CCTV footage. Three days later, on 12 March, the applicant was observed on CCTV footage driving the Mercedes Benz vehicle during a similar petrol theft that he committed at the same premises, and in which he stole petrol, the cost of which was $37.18. The vehicle was then observed by police travelling at a very high speed. Police attempts to intercept the vehicle by deflating its tyres were unsuccessful.
In the meantime, on 6 March, the applicant committed a further such theft of petrol, worth $60.79, from the same premises. On that occasion he was driving a red Peugeot sedan vehicle that had been stolen from a Cranbourne North address on 2 March.
Between Saturday 14 March and Sunday 15 March, unknown offenders broke into domestic premises in Keysborough in which the victim and her three children were asleep. The offenders stole a set of car keys, which they used to steal the victim’s Toyota Kluger vehicle. Shortly after midnight on Monday 16 March, the Victoria Police Air Wing observed the Toyota Kluger southbound on Evans Road, Cranbourne. It was driving in excess of 150 kph entering numerous intersections against red signals that were applicable to it. The vehicle was kept under surveillance by POLAIR. In the meantime, other police units deployed tyre deflation devices which successfully immobilised the vehicle at an intersection in Hallam. The applicant and the co-offenders were arrested. A search of the applicant’s belongings while in custody located a zip lock bag containing green vegetable matter, which was demonstrated to be cannabis.
On his arrest, the applicant admitted that he was driving the Toyota Kluger in which he was intercepted, and that he had been driving other stolen vehicles, including the stolen Mercedes Benz sedan. He admitted that he had stored the stolen Mercedes Benz at his residential address in Cranbourne. When police executed a warrant at his address, they located the stolen Mercedes Benz, a stolen registration plate, and a key belonging to the stolen Peugeot vehicle.
In respect of those incidents, a number of charges were laid against the applicant. Specifically, Leading Senior Constable Halion has charged the applicant with offences including:
(1)Theft of the Toyota Kluger, alternatively handling stolen goods (namely the Toyota Kluger).
(2)Theft of petrol on 6 March 2020 ($60.79).
(3)Theft of petrol on 12 March 2020 ($37.18).
(4)Unlicensed driving.
In addition, Senior Constable Clarke has charged the applicant with:
(1)Theft of a motor vehicle (Mercedes Benz), alternatively handling stolen goods (Mercedes Benz).
(2)Handling stolen goods (a number plate).
(3)Handling stolen goods (the key of the Peugeot vehicle that was stolen from a residential address on 2 March 2020).
(4)Theft of petrol on 9 March 2020 ($79.45).
(5)Reckless conduct endangering serious injury for driving at excessive speeds on 12 March 2020.
(6)Possession of cannabis.
(7)Unlicensed driving.
(8)Committing an indictable offence while on bail.
At the time of his arrest, the applicant was on bail. On Sunday 20 October 2019, he was in custody at the Cranbourne Police Station for an unrelated family violence matter. While he was seated in an interview room, he began to scream profanities towards police members. He then stood up and repeatedly kicked the table causing damage to it. The applicant was charged by Senior Constable Berryman with criminal damage while being held in a police station, and was bailed to appear at Frankston Children’s Court on 7 April 2020.
In addition, in August 2019, the applicant was charged by Senior Constable Swainson with offences of theft, attempted theft from motor vehicles, and criminal damage, that were alleged to have been committed by him on 2 July 2019. On that date, the applicant, in company with three co-offenders, attended at the Bunnings store. One of the co-offenders took an Auto Centre Punch from a shelf, and exited the premises without paying for it. The applicant himself also took such an item off the shelf, concealed it down the front of his jacket, and left without paying. Each device was worth $18.98. After leaving the store, the applicant and his colleagues made their way to a reserve in Cranbourne, where they broke into a Nissan Pulsar vehicle that was parked there. They were disturbed before they were able to steal any items from the vehicle. At the time of the applicant’s arrest on 16 March, there was an outstanding warrant in respect of those matters, which, on his arrest, was executed on him.
The applicant has a substantial criminal history.
On 20 April 2018, the applicant came before the Dandenong Children’s Court on a number of charges of theft, theft of a motor vehicle, aggravated home invasion, aggravated burglary and robbery, and committing an indictable offence while on bail. He was placed on probation for a period of ten months. On 20 July 2018, he came before the same Court for a breach of the probation order, and for other charges including criminal damage, reckless conduct endangering serious injury through the use of an unregistered motor vehicle on the highway, and committing an indictable offence while on bail. He was placed on a further period of probation for seventeen months. Five months later, on 7 December 2018, he was again before the same Court, on one charge of common law assault. The charge was adjourned without conviction for a period of six months.
Finally, on 24 January 2020, the applicant came before the Dandenong Children’s Court on a number of charges including stalking, breach of probation order, theft, two charges of theft of a motor vehicle, theft from a motor vehicle, aggravated home invasion, aggravated burglary, robbery and committing an indictable offence while on bail. The applicant was placed on a period of probation on the theft and allied charges for a period of ten months, which was back-dated to a period before the current offending. On the stalking charge, the matter was adjourned without conviction to 27 January 2021 upon the applicant entering into a good behaviour bond.
The intervention order
The applicant has had previous involvement with Child Protection due to family violence incidents that occurred between him and his adoptive mother. There is an intervention order in place until May 2020, which prohibits the applicant from committing further family violence against his adoptive mother. As a result of that order, the applicant initially was not permitted to return to the family home. However, subsequently the order was varied at the request of his mother to enable him to do so, subject to certain conditions. The intervention order is due to expire on 25 May 2020.
The applicant has had a difficult upbringing, with his mother and sister both passing away when he was young. He was adopted by his aunt, who has been recently diagnosed with terminal cancer.
It is proposed that the applicant return to live with his adoptive mother in her premises in Marylyn Place, Cranbourne. Due to her illness, she was initially reluctant to have the applicant return home because she is now compromised during the current COVID-19 crisis. However, she has accepted that if the applicant adheres to social distancing restrictions, she will permit him to return home.
The bail provisions
Section 1B of the Bail Act 1977 sets out the guiding principles of the legislation, which include maximising community safety, and taking into account the presumption of innocence and the right to liberty. Section 4 of the Act provides that a person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the decision-maker is required to refuse bail by the Act.
It is common ground in this case that the applicant, having been charged with committing an indictable offence while on bail, must demonstrate a compelling reason under s 4C and s 4AA(3) of the Act. Section 4D and s 4E provide that if the Court is satisfied of the existence of compelling circumstances, the prosecutor bears the burden of establishing the existence of an unacceptable risk as defined in s 4E(1)(a). In this case, the respondent contends that, if bail were granted, there would be an unacceptable risk that the applicant would endanger the safety or welfare of others, that he would commit an offence while on bail, and that he would fail to surrender himself into custody in accordance with the conditions of his bail.
The applicant, being 17 years of age, is at law a child. Section 3B of the Act provides that, in such a case, the court must take into account a number of considerations, including the need to consider all other options before remanding the applicant in custody, the need to strengthen and preserve the relationship between the applicant and his family, the desirability of allowing living arrangements with the applicant to continue without interruption, and the likely sentence should the applicant be found guilty of the offences charged. Section 3B(2) provides that the Court may take into account any recommendation contained in the report provided by Bail Support Services.
Section 3AAA and s 4C(3) provide that in considering whether a compelling reason exists, and s4E(3) provides that in determining whether there is a relevant unacceptable risk, the Court must take into account surrounding circumstances. Those circumstances are defined to include the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history, the extent to which the applicant has complied with previous grants of bail, whether at the time of the offending the applicant was on bail for another offence, and any special vulnerability of the applicant, including an intellectual disability.
In Re Ceylan,[1] Beach JA defined the phrase ‘compelling reason’ in terms which have been adopted in a number of subsequent decisions. In Rodgers v The Queen,[2] the Court of Appeal endorsed his Honour’s analysis and summarised it in the following terms:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[3]
[1][2018] VSCA 361, [46]–[47].
[2][2019] VSCA 214.
[3]Ibid [43].
The applicant’s contentions
On behalf of the applicant, Mr L. Richter submitted that the following factors and circumstances relevant to the applicant constitute, collectively, such compelling reason, namely:
(1)The applicant does not have an extensive criminal history.
(2)The likely sentence on a finding of guilt would (it is contended) be a supervisory order in the community, and (it is submitted) that it is unlikely that a custodial sentence would be imposed on the applicant.
(3)The applicant has limited experience of being remanded in custody. Previously he has only been remanded in custody for a period of three days.
(4)The applicant has an intellectual disability. It was submitted that that disability is relevant to the applicant’s vulnerability in custody, an assessment of his moral culpability, and his need for rehabilitative support in the community.
(5)The applicant has a stable address and the support of his family.
(6)The applicant is facing the prospect of delay in the proceeding being heard due to the COVID-19 pandemic.
(7)The COVID-19 pandemic will cause the applicant’s experience in custody to be more onerous, because of the suspension of programs, his inability to receive personal visits from family, the fact that he will be subject to a number of lockdowns, and the stress associated with the possible spread of COVID-19 while in custody.
(8) Youth Bail Support is available to the applicant.
(9) The applicant has already been in custody for 21 days.
Mr L Richter submitted that the Court should not be satisfied that, if the applicant were granted bail, there would be an unacceptable risk that he would commit an offence while on bail or that he would endanger the safety and welfare of another person. In support of that contention, counsel relied on a number of circumstances including the following:
(1)The applicant is a child, so that the Court should consider all other options before remanding the applicant in custody on the basis that there is such a risk.
(2)The offending, while concerning, was not particularly serious. In particular it did not involve acts of violence, sexual offending or the like.
(3)The likely disposition in the Children’s Court will not involve a term of immediate custody.
(4)The prosecution cases against the applicant are not particularly strong.
(5)There will be an inevitable delay in the disposition of these matters due to the COVID-19 pandemic.
(6)As already mentioned, the conditions in custody will be more onerous, both because of the COVID-19 pandemic, and because of the applicant’s intellectual impairment and Asperger’s condition.
(7)The applicant has good close family support and stable residence. In support of that submission counsel relied on a letter written by the applicant’s adoptive mother and his sister dated 15 April, indicating that they are each concerned for the applicant’s mental health while in custody, and that they would be prepared to provide appropriate support for him if he were permitted to return home.
(8)Youth Bail Support is available for the applicant.
The applicant’s circumstances
In support of the application, the applicant relied on a number of reports, including a report of Disability Justice dated 28 March 2019, a report by the Department of Health and Human Services (dated 16 April 2018), a report of Ms Kerrie Donovan, a registered psychologist, dated 1 April 2018, and a report of the Youth Justice Bail Service dated 2 April 2020. The applicant also relied on two progress reports in respect of his periods of probation, dated 18 November 2019 and 21 January 2020 respectively. In essence, those reports noted that the applicant’s engagement with Youth Justice, and his attendance at supervision appointments, had been sporadic, but nevertheless had been satisfactory.
The Disability Justice report noted that the applicant has been assessed as having a full scale intellectual quotient of 61, so that he has an intellectual disability. As a consequence, the applicant is likely to be highly dependent on others for day to day tasks, he is likely to struggle with tasks or requests made of him, he may have difficulty thinking ahead to identify likely outcomes from decisions he makes, and he might struggle to organise himself and to plan tasks. The report also noted that the applicant has been assessed as having Asperger’s Syndrome, and that he also has a severe expressive language disorder.
Ms Donovan assessed the applicant on 27 March 2018. In her report she reached similar conclusions. Testing established that the applicant had a full scale IQ of 61, which is in the ‘extremely low’ category. His conceptual skills, social skills, practical skills and general adaptive composite were all in the extremely low level. Ms Donovan noted that the applicant had been previously assessed as falling within the mild to moderate autistic range, and that assessment had been subsequently confirmed by a paediatrician. She also found that the applicant has significant expressive language deficits.
Additionally, counsel relied on two reports of the Youth Justice Bail Service dated 2 April and 15 April respectively. The report recommended that the applicant be considered for a Youth Justice Supervised Bail program. In particular it recommended that a number of conditions be attached to bail to be granted to him, including that he attend and comply with all lawful directions of the Youth Justice Supervised Support Service, that he reside at his adoptive mother’s residence, that he not use a drug of dependence or illicit substances, that he engage in drug and alcohol support, and with mental health support, as directed, and that he be subject to a curfew.
The report envisages that Youth Justice will engage with the applicant in the form of weekly supervision, which will probably take place by way of telephone because of the current COVID-19 pandemic. The applicant has indicated that he would be willing to participate in the program. The reports assess that the applicant has reasonable prospects for rehabilitation, that he appears motivated to re-engage with Employment Services, and that he has consented to participate with Youth Justice in engaging in the community and developing pro-social connections. The report notes that since being remanded in custody, on 16 March last, the applicant has exhibited mostly positive and compliant behaviour. In the course of the hearing, I was assisted by Ms Linard who is a co-author of the reports. She provided relevant information concerning the level of supervision that would be in place if the applicant is granted bail.
Respondent’s contentions
The respondent has accepted that the applicant has established a compelling reason to be granted bail, but it opposes the grant of bail on the grounds that, if the applicant were released, he would be an unacceptable risk of endangering the safety and welfare of others, of committing an offence on bail, and of failing to surrender himself into custody in accordance with his conditions of bail.
In submissions, Mr Collins, counsel for the respondent, focused particularly on the risk that, if the applicant were released, he might endanger the safety and welfare of others. He noted that the applicant has previous convictions for unlicensed driving. On at least one such occasion, he was involved in an accident, and that he failed to render the requisite assistance after the accident occurred. On 12 March, he drove the Mercedes Benz at a high speed, and has been charged with the offence of reckless conduct endangering serious injury. In addition on 16 March he drove the Toyota vehicle at extremely high speeds through red lights, before being intercepted by police. Although he has not yet been charged with any offence arising out of his driving, the police are continuing to investigate all aspects of it, with a view to laying further charges.
For those reasons, the respondent understandably expressed concern that if the applicant were released, he would not only re-offend, but in doing so he might engage in conduct, in particular the driving of stolen vehicles while unlicensed, in a manner which might endanger the safety and welfare of others.
Analysis
As I have noted, s 4A(1A) of the Act requires that I refuse bail, unless I am satisfied that a compelling reason exist that justifies the grant of bail. As mentioned, Mr Richter has relied on a combination of a number of factors, which, he submitted, collectively constitute such a reason. Mr Collins, on behalf of the respondent, has accepted that it is open to the court to conclude that those circumstances constitute a compelling reason.
Considered individually, some of those circumstances are of limited weight. It is contended, on behalf of the applicant, that he does not have an extensive criminal history. However, his previous court appearances demonstrate that, at the age of 17 years, he has repeatedly committed a number of serious criminal offences. For a young person of his age, he has accumulated a substantial and troubling record.
In the present case, it is difficult, and indeed perhaps undesirable, to postulate the likely sentence which might be imposed on the applicant, if he is convicted. Without intruding on the deliberations of the court which must ultimately decide the appropriate sentence, for the purposes of this application, nevertheless, in light of the number of offences committed by the applicant, the nature and seriousness of them, and his previous record, there is some prospect that a Court might impose a further custodial term, but it is more likely that it would impose a disposition by way of Youth Supervision Order or Youth Attendance Order.
For the purposes of the present application, it is also relevant to note that, on the limited materials available, there is a reasonable likelihood that a number of the charges against the applicant will be found to be proven. The applicant has admitted to driving and storing the stolen Mercedes Benz, and it was located at his premises after his arrest. He was arrested while driving the stolen Toyota Kluger vehicle and he admitted to driving it. There is CCTV footage which apparently implicates the applicant in the petrol thefts for. In those circumstances it is likely that the charge of committing indictable offences while on bail will be found proven.
It does appear that the applicant will have some family support if he were released on bail. To some extent, that support may be limited, in light of his adoptive mother’s poor health, her understandable concern to remain at a physical distance from the applicant during the current COVID-19 pandemic, and the circumstance that in the past she does not seem to have been able to restrain the applicant from involvement in repeated offending. The applicant will have some support from the Youth Justice Bail Service and related agencies. However, that support, also, will be of limited effect, particularly as most of the contacts with the Service will be by way of telephone. On a positive note, the applicant has indicated that he is prepared to engage with the Service, and to address his long-standing problem of abuse of prescription drugs and illicit substances.
The relevance of the current COVID-19 pandemic, in a bail application, has been discussed in a number of recent decisions. For the present purposes, it may be accepted that, if the applicant intends to contest any of the charges against him, the hearing of those charges will be delayed for a quite substantial period of time during the currency of the pandemic. In addition, any period of remand would be more onerous for the applicant for a number of reasons. As a result of the pandemic, the applicant will have less access to programs, he will not be able to receive personal visits from family, and he may be subject to lockdowns that are implemented for health reasons. In that way, any period on remand would be more stressful than otherwise.[4] The current pandemic is, necessarily, a part of the background circumstances which are to be taken into account in considering both the steps which must be undertaken in respect of the application which is under consideration.[5]
[4]See, eg, Re Broes [2020] VSC 128, [39]–[46] (Lasry J); Brown v The Queen [2020] VSCA 60, [48].
[5]Re Tong [2020] VSC 141, [33] (Tinney J).
The most important factor, to be taken into account in determining whether there is a compelling reason to grant bail, is the young age of the applicant. As I have discussed, s 3B prescribes a number of matters which I must take into account in a case such as this.
The question whether the applicant has established the existence of compelling reason is not entirely clear-cut. However, ultimately, I am persuaded that such a reason has been made out, particularly in light of the applicant’s young age, his significant intellectual impairment, his Asperger condition, the circumstance that he has not previously had a custodial sentence, and he does have some support if he were granted bail. Additionally, as discussed, the current COVID-19 pandemic would render a further period of remand more onerous for the applicant than otherwise.
The critical question then is whether the respondent has established the existence of an unacceptable risk.
In that respect, the respondent has relied, with some justification, on a number of factors particularly in support of the proposition that if the applicant were released on bail, he would commit an offence while on bail, and would endanger the safety or welfare of others.
As discussed, the applicant has accumulated a substantial record of repeated offending over the last two years. During that time, he has had the advantage of a number of non-custodial sentencing dispositions, which have failed to deter him from continued offending. In particular, he has been released on probation twice, and on each occasion has later been dealt with for breach of probation. At the time of the offending in the present case, he was on bail, and he was also subject to an adjourned undertaking. In those circumstances, it is difficult to have full confidence in the capacity or inclination of the applicant to abide by any conditions of bail which might be set, if he were released.
In addition, as noted in the report of Youth Justice Bail Service, the applicant has had some difficulty in the past engaging with support services and has refused to attend those services in the past. The support that will be available to him, if he were released on bail, would be limited, as contact with the Youth Justice Bail Service and most of the support agencies will be by way of telephone. The applicant has had a somewhat fraught relationship with his adoptive mother in the past, as evidenced by the intervention order which is still current. Finally, the current charges concern a spate of offending over a period of ten days while, as I have mentioned, he was on bail, and subject to an adjourned undertaking.
A particular concern is the circumstance that the applicant has driven stolen vehicles in a very dangerous manner, at extremely high speeds, when under pursuit by Victoria Police members. It is particularly concerning that the applicant has been abusing prescription medication (in particular Xanax) and using cannabis. His conduct, in the pursuit in which he was ultimately apprehended on 16 March, plainly put members of the public in serious danger.
All of those matters clearly establish that there is a risk that if he were released on bail the applicant might re-offend, and in particular that in doing so he might engage in conduct by driving a vehicle in a manner which endangers the safety and welfare of members of the public. The critical question, then, is whether that risk is unacceptable in terms of s 4E of the Bail Act.
In determining that question, it is important to bear in mind that the concept of an unacceptable risk is a relative matter. Section 4E(3) requires that in considering whether a particular risk is unacceptable, the Court must take into account the surrounding circumstances.
In the present case, the principal and most significant surrounding circumstance is the age of the applicant. As I have noted, s 3B describes a number of matters which must be taken into account by reason of the circumstance that the applicant comes before this Court as a child. In essence, a risk which might be unacceptable in the case of an adult offender might, in all the circumstances, be a risk which it is acceptable to undertake in respect of the disposition of an offender who is a child. Section 3B of the Act recognises and gives force to that proposition.
In addition to his age, the applicant suffers a number of disadvantages. He has a low intelligence, and has Asperger’s Syndrome. Those factors are particularly relevant in law. Due to them, it may fairly be anticipated that the applicant will find a period of detention more difficult, and will be at a disadvantage in relation to a number of aspects with it. His capacity to engage in positive interpersonal relations, and to cope with the structured environment of detention, will be less than a person without those disadvantages. In addition, the COVID-19 pandemic will cause the applicant’s experience of detention to be more onerous, because programs which would otherwise be available to him have been suspended, the applicant will be unable to receive personal visits from his family, and he has been and will be subject to a number of lockdowns. In light of the ill-health of his adoptive mother, the lack of personal family visits will bear heavily upon the applicant.
As already discussed, while it is possible that the applicant might receive a further period of youth detention if convicted of the charges, it is more likely that he will have imposed on him a non-custodial sentence, such as by way of a Youth Supervision Order or a Youth Attendance Order. If the applicant continues to contest the charges, then it might be anticipated that the hearing of the charges will be significantly delayed due to the effects of the pandemic. In the end, it is probable that any period of detention that might be imposed on him would be substantially less than the period that the applicant might spend on remand while awaiting the hearing of the charges.
While, as I have noted, there is a risk that, if the applicant were released on bail, he might re-offend and in doing so endanger community safety, there are a number of factors, relied on by Mr Richter, which in my view might ameliorate the degree of that risk, without entirely nullifying it.
First, the applicant has now spent thirty-one days in custody. His longest previous period of detention was three days. It might be hoped, and indeed expected, that the applicant has learnt a sharp lesson arising out of his offending. Secondly, if I were to grant bail, it would be subject to strict conditions which are capable of being adequately supervised. Thirdly, the applicant has had positive connection with the Youth Justice Bail Service. While as I pointed out the supervisory role of that Service might, to a degree, be limited, due to the current pandemic, nevertheless, as Ms Linard has made plain in the hearing of the application, the Service will adopt a zero tolerance attitude to any breach of or non-compliance with the bail conditions. Fourthly, one of the conditions of the grant of bail will be that the applicant will reside at his adoptive mother’s home. If the applicant fails to comply with the terms of his bail, and in particular if he associates with co-offenders or other like-minded individuals, he will thereby be placing his adoptive mother’s health, and indeed her life, at quite serious risk. The applicant’s adoptive mother is particularly concerned about that matter, and has made it plain that if the applicant does not comply with his bail conditions, she will exclude him from the home, thus placing him in breach of a condition on which he would be granted bail to be removed. A final and relevant factor is, as Mr Richter has pointed out, during the current pandemic, there is a significantly greater police presence on our roads. On the other hand, and conversely, there are fewer members of the public driving on the roads or indeed walking on the streets. If the applicant were minded to band with other offenders, or were to be seen in company with others, there is a reasonable prospect that he might be intercepted by police and questioned.
As I have mentioned, none of those circumstances, either individually or collectively, entirely negate the risk that the applicant might re-offend and endanger the public safety. However, they do materially reduce the level of risk of the applicant doing so.
The decision, as to whether the risk is unacceptable, is not without its difficulties. However, in view of the applicant’s age and circumstances, and in view of the matters which ameliorate the degree of the risk, I have concluded that the risk, while established, is not in all the circumstances unacceptable.
For those reasons, I propose to grant the applicant bail. In doing so, I substantially adopt the conditions that have been recommended by Youth Justice, namely:
(1)That the applicant attend and comply with all lawful directions of Youth Justice Supervised Bail Support Service.
(2)That the applicant reside at 23 Marylyn Place, Cranbourne, Victoria.
(3)That the applicant engage in drug and alcohol support as directed by Youth Justice.
(4)That the applicant not use a drug of dependence or illicit substances.
(5)That the applicant engage with Mental Health Support as directed by Youth Justice.
(6)That the applicant remain at the premises at 23 Marylyn Place, Cranbourne between the hours of 7.00 pm and 6.00 am unless in the company of an approved agency or adult by Youth Justice.
(7)That the applicant present at the front door of the residence during curfew hours upon request by any member of Victoria Police.
(8)That the applicant not drive a motor vehicle.
(9)That the applicant report to Cranbourne Police Station each Monday and Friday between the hours of 7.00 am and 5.00 pm.
(10)The applicant not associate with his co-offenders.
(11)The applicant appear at Dandenong Court on 24 April next.
9
3
0