Re JK
[2022] VSC 527
•7 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0226
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by JK |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 September 2022 |
DATE OF JUDGMENT: | 7 September 2022 |
CASE MAY BE CITED AS: | Re JK |
MEDIUM NEUTRAL CITATION: | [2022] VSC 527 |
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CRIMINAL LAW – Bail – Applicant 16 years of age – Applicant in custody for first time – Applicant charged with multiple dishonesty, violence and bail offences by multiple informants - Whether applicant demonstrates exceptional circumstances justifying grant of bail – Whether applicant poses unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3AAA, 3B, 4A, 4AA, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Roth | Dotchin Tan |
| For the Respondent | Mr A Singh | Victoria Police |
HER HONOUR:
By application dated 31 August 2022, JK (‘the applicant’) seeks a grant of bail. He is sixteen years of age. He is presently remanded in Parkville Youth Justice Centre (‘PYJC’).
Summary of alleged offending
The applicant is remanded with respect to six suites of charges. In chronological order they are:
Informant Charge date Offence date Charges Anderson 31 May 2022 30 May 2022 Robbery.
Handling stolen goods.
Possess cannabis.
Unlawful assault.
Assault in company.
Lee-Archer 28 July 2022 28 July 2022 Handling stolen goods.
Commit indictable offence whilst on bail.
Criminal damage.
Fontana 13 August 2022 7 August 2022 Burglary.
Theft.
Commit indictable offence whilst on bail.
Winkler 18 August 2022 18 August 2022 Handling stolen goods (two counts).
Theft of motor vehicle.
Commit indictable offence whilst on bail.
Ellemor 22 August 2022 22 August 2022 Robbery.
Commit indictable offence whilst on bail.
Cameron 27 August 2022 27 August 2022 Aggravated burglary.
Theft.
Theft of motor vehicle.
Unlicensed driving.
Commit indictable offence whilst on bail.
Until 29 August 2022, when bail was refused by the Children’s Court with respect to the Cameron charges, the applicant had been on five separate grants of bail with respect to the other charges. Bail in those matters was revoked on 29 August 2022. All matters are next listed on 19 September 2022 in the Melbourne Children’s Court.
The applicant is also presently on summons with respect to charges of attempted robbery (two counts), assault in company (two counts), handling stolen goods and possessing proceeds of crime alleged to have been committed between 22 February 2022 and 15 April 2022. Those charges were laid by informant Schalk on 14 April 2022 and are next listed on 20 September 2022 at the Frankston Children’s Court.
Additionally, the applicant will be charged by informant Lai Sang with robbery, handling stolen goods and committing an indictable offence whilst on bail with respect to an incident on 26 August 2022.
Schalk charges
On 21 February 2022 the applicant took possession of a mobile telephone robbed from a man by a co-accused at the Cranbourne Railway Station bus interchange.
On 13 April 2022 the applicant was part of a group of young men who assaulted and attempted to rob a man of his mobile phone at the bus stop outside the Cranbourne Centro Shopping Centre.
On 15 April 2022 the applicant was part of a group of young men who assaulted and attempted to rob a man of his mobile phone in the underpass of the Frankston Railway Station.
Anderson charges
On 30 May 2022 the applicant was part of a group of young men who assaulted and robbed a man of AirPods earphones on a bus that left the Cranbourne Railway Station bus interchange.
Also on 30 May 2022, at the time of the applicant’s arrest, he was found to be in possession of two stolen vehicle keys and a small amount of cannabis.
Lee-Archer charges
On 28 July 2022 the applicant was arrested in Cranbourne in relation to an outstanding warrant. He was found in possession of a stolen bank card. After being arrested and placed in an interview room at the Cranbourne Police Station, the applicant lifted numerous carpet tiles and scattered them across the floor. He also pulled on the metal chair in the room, straining the concrete screws which affixed it to the floor. The applicant was on bail with respect to the Anderson charges at the time.
Fontana charges
On 7 August 2022 the applicant was one of three young men who broke into the Culture Cube store at the Bayside Shopping Centre in Frankston by forcing the roller door with a pair of scissors. They stole clothes and jewellery worth about $2,000. The applicant was on bail for the Anderson and Lee-Archer charges at the time.
Winkler charges
On 18 August 2022 the applicant was a passenger in a Holden Commodore stolen from a Lyndhurst address on 16-17 August 2022. His co-accused, the driver, lost control of the vehicle and crashed into a fence and tree on Heathcote Grove in Officer. The applicant and two co-accused fled the scene. The applicant was arrested later that day. He was found to be in possession of a key to a Mercedes-Benz vehicle that had been stolen from an Oakleigh South address on 17 August 2022 as well as a Westpac bank card stolen from a different Oakleigh South address between 15 and 17 August 2022. The applicant was on bail for the Anderson, Lee-Archer and Fontana charges at the time.
Ellemor charges
On 22 August 2022 the applicant robbed a man of his phone at the Cranbourne Centro Shopping Centre. The applicant was on bail for the Anderson, Lee-Archer, Fontana and Winkler charges at the time.
Cameron charges
On 27 August 2022 at about 5.45am, the applicant and a co-offender entered a Sandringham house while a man, woman and children were inside asleep. The applicant took two sets of car keys, an iPhone and a handbag from a bedroom. The applicant took and drove away a white Mercedes-Benz vehicle. His co-accused took and drove away a blue Mercedes Benz vehicle. The applicant was later arrested in the driver’s seat of the white Mercedes-Benz. The applicant was on bail for the Anderson, Lee-Archer, Fontana, Winkler and Ellemor charges at the time.
Pending Lai Sang charges
On 26 August 2022 the applicant with five other young men approached a man at a bus stop at the Cranbourne Park Shopping Centre. That man has a learning disability and low IQ. The applicant demanded the man’s phone and slapped him to the face when he could not remember its passcode.
Applicant’s personal circumstances
Immediately prior to his remand, the applicant lived with his mother, younger brother and older sister in a flat in inner Melbourne. Formerly he resided with those family members in Cranbourne. The move, supported by the Department of Families, Fairness and Housing (‘DFFH’), was triggered by the applicant’s mother’s inability to prevent the applicant’s antisocial peers from attending and remaining at her home in Cranbourne. The inner city flat is temporary.
The applicant has four half-siblings who reside with his father in Melbourne. He does not have a strong relationship with his father.
Between 2018 and 2020 the applicant attended [redacted]. He also attended [redacted] in 2020. At the time of his remand, the applicant was not enrolled in school and was unemployed.
The applicant has no criminal history.
Legal considerations
The applicant must be refused bail unless he establishes exceptional circumstances that justify the grant of it as he has been charged with a Schedule 2 offence while on bail for a Schedule 2 offence.[1] In considering whether exceptional circumstances exist, the Court must take into account the relevant surrounding circumstances in s 3AAA(1) of the Act.
[1]Bail Act 1977 (‘Act’), s4AA(2)(c). That is, he has been charged with committing an indictable offence whilst on bail as well as aggravated burglary whilst on bail for committing an indictable offence whilst on bail. See Act, Schedule 2, items 22(b) and 30.
The meaning of exceptional circumstances is well known. The circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[2] The Court must again have regard to the surrounding circumstances delineated in s 3AAA(1) when making that determination.[3] Further, 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.[4]
[2]Act, s 4E(1).
[3]Act, s 4E(3)(a).
[4]Act, s 4E(3)(b).
As the applicant is a child for the purposes of the Act,[5] the Court must take into account the seven matters delineated in s 3B(1), namely:
[5]Children Youth and Families Act 2005, s 3.
(a) The need to consider all other options before remanding the child in custody;
(b) The need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers;
(c) The desirability of allowing the living arrangements of the child to continue without interruption or disturbance;
(d) The desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(e) The need to minimise the stigma to the child resulting from being remanded in custody;
(f) The likely sentence should the child be found guilty of the offence charged; and
(g) The need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
The Court may also take into account any recommendation or information contained in a report provided by a bail support service.
The Court must also have regard to the guiding principles set out in s 1B(1) of the Act.
Applicant’s contentions
The applicant argued that a number of factors combined to produce exceptional circumstances.
While the applicant conceded that the alleged offending, particularly the Cameron charges, was serious and that the prosecution cases were strong,[6] it was submitted that it is unlikely that the applicant will receive a custodial sentence. Consequently, his continued remand would be akin to preventive detention.[7]
[6]With the exception of the Cameron aggravated burglary charge on the basis of the absence of both CCTV footage and fingerprints, the vague description given by the home owners and the fact that the applicant was not found in possession of the car until one hour after the burglary.
[7]Re HA [2021] VSCA 64, [63]-[64].
He has no prior criminal history. Aside from a single night in custody in the Frankston Police Station cells, his remand in PYJC is his first experience of custody. It has had a salutary effect on him. Further, the conditions of his remand have been restrictive as a result of COVID-19 measures.
The applicant has the support of his mother and the DFFH. Between 2010 and 2022 there were nine reports to the DFFH concerning the welfare of the applicant’s mother, domestic violence, environmental neglect, inappropriate discipline of the applicant’s (now adult) sister, school absenteeism and a lack of appropriate supervision. The DFFH is considering appointing a specialist investigator attached to the Adolescent Protective Team with respect to the applicant and his brother. And, as noted above, the DFFH has assisted the applicant’s mother with temporary accommodation. The DFFH has informed the applicant’s mother that a permanent home is likely to become available in weeks.
The Court has received and considered a Youth Justice Bail Service Report. The applicant has been assessed by Youth Justice as suitable for supervision by them. The applicant has said that he would participate in this service. Youth Justice proposes to conduct, at a minimum, weekly appointments. Youth Justice will also maintain regular contact with the applicant’s family, provide case management to coordinate any referrals and convene a care team of professional and school services. The principal of [redacted] has indicated to Youth Justice that the applicant can attend that school. Further, it is the opinion of Youth Justice that the applicant’s mother has demonstrated her support for him by her efforts to move him away from his negative peers and by calling police when he was in breach of a previous curfew condition. The applicant’s mother has indicated to Youth Justice that she will drive him to and from school and appointments.
As to risk, the applicant submitted that the risk he poses can be rendered acceptable by appropriate bail conditions and participation in the Youth Justice supervised bail program, an opportunity to which he has not had previous access.
Respondent’s contentions
The respondent submitted that the applicant has failed to demonstrate the existence of exceptional circumstances. It was asserted that the factors relied upon by the applicant did not combine to do so. No detailed arguments were made. The respondent conceded that the applicant was, in the event of a consolidated plea of guilty to the charges, unlikely to receive a custodial sentence.
The respondent also submitted that one of the victims of the 27 August 2022 aggravated burglary opposes the applicant being granted bail as he is fearful of the applicant reoffending. More generally, the respondent submitted that the victims of the alleged offences were vulnerable either because of age or disability.
The respondent further submits that the applicant is an unacceptable risk of endangering the safety and welfare of the public and of committing an offence whilst on bail. The former is based upon the conduct of the applicant on 27 August 2022, namely driving a stolen motor vehicle at high speed without a licence. The latter is based on the six counts of committing an indictable offence whilst on bail that he currently faces.
The respondent points to the fact that supervision of the applicant by his mother has not, to date, prevented the applicant from offending. And, while the applicant would benefit from a Youth Justice supervision program, he will still have time on his hands and is in danger of associating with his anti-social peers.
Analysis
In my view the applicant has demonstrated the existence of exceptional circumstances that justify the grant of bail.
His alleged offending throughout 2022 is of concern. It escalated in frequency and seriousness. The applicant had no regard for the welfare of others or of bail conditions. That said, there are notable features common to most of the alleged offending: it was done in company with peers and it was location-specific.
The applicant’s remand has forced an abrupt break in the pattern. The experience has been surprising and unwelcome to him. As noted in the Youth Justice Bail Service Report, his willingness to participate in the Youth Justice program is motivated by his desire not to go back to PYJC. He is willing to remove the co-accused from his social media profiles and otherwise comply with any non-association condition. He is willing to re-enrol in Year 11 at school. While he was resident at the inner Melbourne flat during the last few weeks of his alleged offending, most of the offending occurred while he was living in Cranbourne and, in any event, it is anticipated that he will soon move suburbs again. Further he will, for the first time, have the intensive supervision of Youth Justice in combination with that of his mother. He will have the support of the DFFH. He will not be idle and daily at large in the community. In short, the circumstances in which he was prone to the influence of negative peers and susceptible to offending behaviour will be radically different.
Without fettering the discretion of a sentencing Magistrate, I accept the submission that a non-custodial sentence is the likely disposition when the alleged offending and the matters personal to the applicant are considered. He has no criminal history. The difficulties of his home life are relevant. It follows that there is a genuine concern that further remand would constitute preventive detention. Further, I accept the observation expressed in the Youth Justice Bail Service Report that the applicant is liable to negative peer influence in custody.
I am further of the view that the risk the applicant poses of endangering the welfare of himself or members of the public or of committing an offence whilst on bail can be rendered acceptable by the imposition of appropriate bail conditions.
The applicant’s alleged behaviour during 2022 presents a picture of a young man spiralling out of control. But, as already noted, his remand has forced a separation from his negative peers and surroundings. His dislike for the experience of custody is evident. The intensive supervision of Youth Justice together with the loving but firm support of his mother and the services of the DFFH will provide him with an intermeshed framework that was entirely absent for most of this calendar year. That framework will be reinforced by the spectre of a return to custody in the event that bail conditions are breached.
Conclusion
The orders of the Court are that the applicant be admitted to bail on 7 September 2022 on his own undertaking, with the following conditions:
(a) Reside at [redacted] (‘the bail address’);
(b) Notify informant Cameron of any proposed change to the bail address at least 24 hours in advance of such change;
(c) Not leave the bail address between the hours of 8:00pm and 6:00am (‘the curfew hours’) except in the company of [the applicant’s mother], or with her permission, or unless directed to do so by a staff member of Youth Justice or a member of Victoria Police;
(d) Present at the front door of the bail address at any time between the curfew hours when requested to do so by a member of Victoria Police;
(e) Not contact any witness for the prosecution except the informant;
(f) Not contact or associate with (either directly or indirectly, including contact attempted through social media) any of the co-accused in the applicant’s criminal matters, namely [redacted];
(g) Comply with all lawful directions and recommendations of Youth Justice staff whilst participating in Youth Justice programs and attend all appointments recommended by staff;
(h) Attend [redacted] on 8 September 2022 and then ongoing thereafter Monday to Friday where school is in session, unless absent with the permission of [the applicant’s mother] or Youth Justice staff;
(i) Not leave the state of Victoria; and
(j) Attend the Melbourne Children’s Court on 19 September 2022.
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