Re JH
[2023] VSC 444
•1 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0095
| IN THE MATTER of an application for bail | |
| Between: | |
| JH | Applicant |
| -and- | |
| VICTORIA POLICE | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2023 |
| DATE OF ORDERS & EX TEMPORE REASONS: | 29 May 2023 |
| DATE OF PUBLICATION OF WRITTEN REASONS: | 1 August 2023 |
CASE MAY BE CITED AS: | Re JH |
MEDIUM NEUTRAL CITATION: | [2023] VSC 444 |
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CRIMINAL LAW — Application for bail — Applicant charged with multiple offences, including aggravated burglary (intent to steal/persons present), theft of car, possess weapon, breaching bail conditions — Applicant charged on summons with numerous other offences — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of offending or endangering others — Applicant aged 18 — Aboriginality — Deprived background — Intellectual disability — Mental health afflictions — Presently, no case on aggravated burglary — If convicted, custodial sentence unlikely — Delay — Even if convicted and custodial sentence imposed, period to be spent in custody before hearing likely to exceed any such sentence — Risk of preventative detention — Extensive supports available on bail — Salutary experience of first time in adult custody — Damaged individual — Exceptional circumstances established — Unacceptable risk not established — Bail granted on own undertaking with conditions; Bail Act 1977 (Vic), s 3A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H Lewis | Victoria Legal Aid |
| For the Respondent | Mr A Austin | Victoria Police, Legal Practice Group |
HIS HONOUR:
Overview
On 29 May 2023, I granted an application for bail by JH,[1] and released him on his own undertaking, with conditions.
[1]While the applicant JH is aged 18 and the charges for which he applies for bail are to be heard in the Magistrates’ Court, there is necessarily an interaction between these matters and other charges dealt with, and some still to be dealt with, in the Children’s Court. In those circumstances, and given the prohibition, in s 534 of the Children, Youth and Families Act 2005 (Vic), on publication of reports of proceedings in the Children’s Court containing any particulars likely to lead to the identification of a child or other party to, or witness in, such proceedings, or the particular venue of that court (other than, relevantly) the Koori Court (Criminal Division)), I have described the applicant as JH and, where appropriate, have employed similar means to describe other persons or organisations that might be connected with the Children’s Court aspects of this matter.
I gave ex tempore reasons and indicated to the parties that I did not intend to publish written reasons. While the parties were content with that course at the time, more recently, JH’s solicitor has asked whether I might publish written reasons. I am happy to do so.
What follows is a revised and edited version of my ex tempore reasons, which I have left in the present tense.
Revised/edited reasons
Background
This is an application for bail by JH, who turned 18 in January this year.
He was arrested on 1 May 2023. Several charges were laid by three different police officers, and he has been held in custody since that time. The most serious of the charges is one of aggravated burglary (of the persons-present-intent-to-steal variety). Most of the other charges allege thefts, including of a car, retaining stolen goods, and breaches of conditions of bail. These offences were said to have been committed in April and May of this year.
JH applied for bail in the Magistrates’ Court on 2 May, but without success.
On 18 May, JH’s bail on other charges was revoked. On 3 April, he had pleaded guilty to a consolidation of those charges, including for breaching bail conditions, possessing GHB, possessing a controlled weapon, shoplifting, and trespass. These offences are alleged to have been committed in February and March. He was released on bail on 3 April, and sentencing was deferred until 18 May. In addition, the same day, JH made a second unsuccessful application for bail on the “new” charges laid on 1 May.
In February and March, JH was charged on summons with numerous other offences, most of which are alleged thefts or attempted thefts from motor vehicles. It is alleged that these offences were committed on 14 and 16 October 2022, when JH was only 17. Thus, they are matters to be heard by the Children’s Court.
JH has an extensive criminal history in the Children’s Court which began when he was only 15. Included among his prior matters are findings of guilt or convictions for theft of motor car, burglary, aggravated burglary (intent to steal/persons present), affray, driving offences, graffiti, shoplifting, assault, damaging property, possessing a controlled weapon, and breaching bail. He has been placed on non-custodial orders (which he has breached), and has served multiple periods of detention in a youth justice centre.
JH is currently subject to a youth supervision order (“YSO”) imposed in the Koori Court of the Children’s Court. This order is expressed to continue until 10 October 2023.
Tests for bail
There is no dispute that, because of the circumstances in which he finds himself, to be bailed, JH must establish exceptional circumstances exist justifying the grant of bail.
As well, it is submitted on behalf of the informants that, even if that hurdle is cleared, there is an unacceptable risk that JH would either offend on bail or endanger another person, and that bail should be refused on that basis. Initially, it was suggested that JH also presented an unacceptable risk of failing to answer bail. But as I understand things, in the end, that assertion has not been seriously pressed by Mr Austin, who appears on behalf of the informants in this Court.
Exceptional circumstances
Mr Lewis, who appears for JH in this Court, submits that a range of factors combine to establish the necessary exceptional circumstances, including the following.
First, there is JH’s status as a First Nations person, and his connection to his culture. In this regard, counsel relies on s 3A of the Bail Act 1977 (Vic).
Secondly, Mr Lewis refers to JH’s disadvantaged background and childhood.
Thirdly, he relied on JH’s youth, as, after all, he has only turned 18 a few months ago.
Fourthly, counsel refers to JH’s diagnosed intellectual disability and his difficulties with mental health.
Fifthly, he relies on the fact that this is JH’s first time in adult custody. In that connection, he refers to the experiences JH has had whilst in custody, including suffering injury as a result of an incident with another inmate.
Sixthly, counsel submits that, notwithstanding JH’s criminal history, it is likely that he would receive a non-custodial sentence were he found guilty of all the charges. In this regard, counsel refers to the nature of the offences charged, which he submits are not at the serious end of the scale.
Seventhly, it is submitted that there are weaknesses in the prosecution case. I should make a particular point about that. It is conceded by Mr Austin that, as matters currently stand, the most serious of the charges, the aggravated burglary, would be incapable of proof. That said, he explains that forensic testing is currently underway, the results of which may improve the viability of that charge.
Eighthly, Mr Lewis refers to the time that JH would be likely to spend in custody before final determination, if bail were not granted. As we shall see, any such delay is all the more important when regard is had to the likelihood that JH would not receive a custodial sentence, were he found guilty of the charges.
Finally, counsel refers to JH’s special vulnerabilities, which, he submits, are apparent from the from all the circumstances, including those I have already mentioned.
As I understand his submissions, in the end, Mr Austin does not seriously contest that exceptional circumstances have been established. In that regard, I note that he places emphasis on, among other things, JH’s youth, his Aboriginality and other personal circumstances as going towards satisfaction of that statutory test.
In my view, in addition to those considerations, when regard is had to the fact that (as things stand at the moment) the aggravated burglary could not be proved, the remaining charges are for offences that, while not insignificant, are such that it is likely that, if found guilty, JH would not receive a sentence of imprisonment or youth detention at all. Alternatively, if he did receive a custodial sentence (whether with or without proof of the aggravated burglary), it is unlikely that that sentence would exceed the 28 days or so he has spent in custody already, whether or not that sentence (in the case of imprisonment) might be combined with a community correction order or some other non-custodial order. That is not to say that a magistrate might not take a different view. But, at this stage, I am to assess what I think is the likelihood, and I do not think that it is likely that anything beyond that sort of sentence would be imposed.
That view then throws the issue of delay into sharper relief. I am told that the matter is to come back to court for mention on 1 June, that there could be a contest mention within a week or so of that hearing, and then a final hearing date is likely to be fixed for about eight to ten weeks hence. So, that would mean JH would spend something approaching three or four months in custody before the charges were ultimately dealt with. While that is a comparatively short delay when compared with the delays routinely estimated in this Court on bail applications in matters heading off to the County Court (indeed, those delays are often measured in years, not months), or even where matters will be heard in the Magistrates’ Court, nevertheless, it is the sort of delay that means that there is a real likelihood that any further time spent in custody would amount to preventative detention for JH (about which I shall say more shortly).
So, for all those reasons, I am satisfied that there are exceptional circumstances justifying bail.
Unacceptable risk
I turn then to the question unacceptable risk.
As I have said, the risks alleged are that JH would commit an offence while on bail or that he would endanger the safety or welfare of any person.
In light of JH’s criminal history, and the fact that the current charges allege offences committed while released on bail, I accept that there is a risk of his offending while on bail.
It might be said that the same risk carries with it a risk of endangering the safety or welfare of any person, although I think the nature of his criminal history and the character of the current allegations suggest a lower risk of behaviour of that kind.
In any event, the first point to make is that the matter I mentioned a moment ago — the real risk of preventative detention — is a factor that also comes into play when considering whether any such risk is unacceptable. Preventative detention is alien to fundamental principles that underpin our system of justice,[2] and that consideration is, I think, all the more acute when dealing with a young person.
[2]See, e.g., HA (a pseudonym) v The Queen [2021] VSCA 64 at [63]–[64] (per Maxwell P and Kaye JA).
Secondly, regard must be had to the supports that would be in place if JH were bailed, and they would be numerous. They include the fact that he would be in effectively supported accommodation through his NDIS programme. Connected with that is an organisation called Buddies CAN, which would provide him intensive support two hours a day, twice a day.
Thirdly, there would be the supports to be received from Pathway Essentials. I heard evidence from Vladimir Keca, the Managing Director of that organisation. Mr Keca is a man dedicated to the support of young people in crisis, who have had disadvantaged backgrounds, or who, for whatever reason, have not engaged with the education system or other more conventional aspects of society. His organisation would link JH with all manner of services, as needed. Mr Keca has worked with JH before, up until the end of 2021. He has re-engaged with him more recently. He spoke to JH not long before his arrest, and he interviewed him in custody on 10 May. One of his colleagues, Chris Lee, also saw him a week later. Mr Keca believes that JH has the capacity, and the will, to engage in the services that Pathway Essentials can offer.
Fourthly, as I indicated earlier, JH is subject to a YSO. This order contains various conditions with which he is required to comply. There are, however, concerns that he might be in breach of that order.
Whether or not that YSO is revoked because of a past breach, in my opinion, there are sufficient supports in place to reduce the risk that JH might otherwise present of committing offences or of endangering others were he released on bail.
Fifthly, another factor important to making that assessment is the evidence that JH has spent the last 28 days in adult custody, and for the first time. Mr Lewis submitted that I should accept that this has been a salutary experience for JH. I do accept that submission. As well as being involved in an incident where he was injured in prison, I expect it has been a confronting experience for JH to be in adult custody, and that it has been a good deal more challenging than being in youth detention or subject to a YSO or the other orders that he has been on in times past. Of course, there is no guarantee that this salutary effect will last, but I am satisfied that it should be brought to account in reaching my ultimate conclusion.
And that conclusion is that, in light of the foregoing matters, as well as the proposed conditions of bail, I am not satisfied there is unacceptable risk that JH will offend while on bail or otherwise endanger any other person or his own welfare.
Some risks are worth taking. JH is only 18. To use a phrase that Mr Keca resisted (out of care), but which I think is apt, he is also a damaged individual. I shall not go into the reasons why I take that view. Suffice it to say that the material before me shows that, by the age of 18, JH has led a life that only very few in the community have or could even contemplate. If there is any reasonable prospect of reclaiming a young person, then I think that is a chance that should be grabbed with both hands. Hopefully, granting him bail will give JH the opportunity and the impetus to set himself right, with the assistance of those who are prepared to assist him. But, in the end, it is going to be up to him.
Conclusion and order
In any event, in all, as I say, I am satisfied that exceptional circumstances exist that justify bail and I am not satisfied there is unacceptable risk of the kinds alleged.
In those circumstances, JH should be granted bail.
Accordingly, I order that JH is to be admitted to bail upon his own undertaking and on the following conditions:
a) JH is to reside at [redacted] (“the residence”).
b) JH is to be present at the residence between the hours of 10:00 p.m. and 6:00 a.m. (“the curfew hours”) and 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, except when in the company of his grandfather [XY] or at his grandfather’s premises at [redacted].
c) JH must not contact, directly or indirectly, witnesses for the prosecution except the informants or their nominees, or any Youth Justice worker.
d) JH is to comply with all lawful directions of Pathway Essentials.
e) JH is to appear at the [redacted] Magistrates’ Court for mention at 9:30 a.m. on Thursday 1 June 2023, and thereafter as directed by that court.
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