Re JM
[2019] VSC 156
•13 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0059
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by JM | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 March 2019 |
DATE OF JUDGMENT: | 13 March 2019 |
CASE MAY BE CITED AS: | Re JM |
MEDIUM NEUTRAL CITATION: | [2019] VSC 156 |
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CRIMINAL LAW – Application for bail – Children’s Court – Charges of aggravated burglary, theft, criminal damage, unlawful assault, obtaining property by deception, attempting to obtain property by deception, handling stolen goods, unlicensed driving, marking graffiti without consent – Applicant required to show compelling reasons – Special vulnerability – Likely sentence – Availability of support and treatment services – Bail not opposed – Compelling reason shown – Unacceptable risk not demonstrated – Bail granted subject to conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. De Vietri | Victoria Legal Aid |
| For the Respondent | Ms H. Spowart | Victoria Police |
HIS HONOUR:
On 3 March 2019, the applicant was arrested and charged with aggravated burglary, three counts of theft, criminal damage, unlawful assault, obtaining property by deception, attempting to obtain property by deception, handling stolen goods, unlicensed driving and marking graffiti without consent. The charges relate to incidents alleged to have occurred between 20 February 2019 and 2 March 2019.
The applicant is 16 years old and has been in custody since his arrest. On 5 March 2019, the Ballarat Children’s Court refused his application for bail in respect to these charges.
At the time of the alleged offending, the applicant was subject to a summons to answer charges of unlawful assault (three counts), recklessly causing injury, and contravening a family violence intervention order (‘FVIO’), in respect to incidents alleged to have occurred between 26 November 2018 and 1 January 2019 (‘the Informant Aranyosi matters’). The applicant remains released on summons in respect to these matters.
Both sets of charges are next listed for mention at the Ballarat Children’s Court on 18 March 2019. On 6 March 2019, the applicant filed an application for bail in this Court.
The alleged offending
20 February 2019
The prosecution alleges that on 20 February 2019, the applicant stole a wallet containing credit cards and approximately $100 from the change rooms at the Ballarat Aquatic Centre.
The wallet was found on the windowsill of the applicant’s bedroom during a search conducted by police on 2 March 2019. Police note there are surveillance cameras at the aquatic centre, but the footage has not yet been collected.
It is further alleged that on 20 February 2019, the applicant and two co-accused marked the rear side of a property with graffiti. Police identified the applicant from CCTV still images provided by the owner, but are waiting for a full copy of the footage.
One of the co-accused is yet to be interviewed and the other is yet to be identified.
25 February 2019
It is alleged that at approximately 12.50am on 25 February 2019, the applicant broke into a property in Mount Clear by smashing the window of the rear laundry door. The resident of the address and the complainant in this matter is a 56 year old woman who lives alone.
It is alleged the applicant took a knife from the kitchen before entering the complainant’s bedroom where she was asleep in bed. The complainant woke to see a male in her bedroom holding a torch and a knife. She screamed and the applicant allegedly pointed the knife in her direction, walked around her bed and hissed at her. He proceeded to take the complainant’s mobile phone and assorted jewellery from the bedside table. It is further alleged the applicant stole the complainant’s purse, car keys and house keys.
After the intruder left the premises, the complainant called police. Due to her description of the male, police showed her a photo board containing a picture of the applicant, whom she immediately identified.
It is alleged the applicant used the complainant’s mobile phone and bank cards to purchase ALDI mobile credit to the value of $50.48. Additional purchase attempts were made from Dell Australia and Apple Store, and police are making further enquiries in respect to the use of the phone.
1 – 2 March 2019
Between 5.00pm on 1 March and 7.30pm on 2 March 2019, it is alleged that the applicant cut the lock and entered a property in the suburb of Canadian. It is alleged the applicant found the keys inside a Mazda Tipper Truck and drove the vehicle out of the yard. This truck is classed as a heavy haulage vehicle, requiring the driver to hold a special class of licence.
The truck was located later on 2 March 2019, with a witness informing police he observed two females and a male matching the applicant’s description leaving the vehicle. Police are yet to obtain a statement from this witness.
In the early hours of 3 March 2019, police located the applicant underneath a vehicle in Sebastopol. The applicant was taken to the Ballarat Police Station, and the keys for the Mazda Tipper Truck and several small empty ‘deal bags’ were found in his jacket.
Arrest and interview
At the time of his arrest, the applicant was observed to be highly drug affected. He stated he had taken a few Xanax and two points of ‘ice’ over two days, and that he had been doing ‘a heap of stupid shit the past couple of weeks’. He was unable to be interviewed due to his condition and was lodged in the cells, before he became unwell and was taken to hospital.
Subsequently, the applicant was returned to the Ballarat Police Station. During an interview, the applicant:
·stated when asked about the theft of the wallet, ‘I probably did steal it but I can’t remember doing it’;
·stated when asked about marking the graffiti, ‘Yeah that’s me. I don’t do specific tags I put mates names down that are locked up’, and acknowledged he was one of the people in the CCTV still images;
·made no admissions to the aggravated burglary and stated he had no recollection of doing that and he ‘would remember doing that to an old lady’, although police made no direct reference to the age of the complainant; and
·stated, ‘I wandered into a construction yard entered a tip truck and found the key in a roof pocket, drove it around for a total of 16 hours and parked it in Wilson Street. I know it’s wrong it’s not my property. I feel ashamed. I’m just fucked up after losing my girlfriend. I’m just a fuck head’.
The applicable legislation
Pursuant to s 346(6) of the Children, Youth and Families Act 2005 (‘the CYF Act’), the Bail Act 1977 (‘the Act’) applies to the present application, except insofar as it is inconsistent with the CYF Act.
Pursuant to s 3B(1) of the Act, the Court is required to take into account the following matters in making a determination in relation to a child:
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(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 applicant is charged with two Schedule 2 offences under the Act, namely:
(a) aggravated burglary;[1] and
(b) an indictable offence that is alleged to have been committed by the accused while subject to a summons to answer to a charge for another indictable offence.[2]
[1]Bail Act 1977 (Vic) sch 2 item 22(b).
[2]Bail Act 1977 (Vic) sch 2 item 1(b).
As such, pursuant to s 4C(1A) of the Act, the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the burden of satisfying the Court that a compelling reason exists.[3]
[3]Bail Act 1977 (Vic) s 4C(2).
Pursuant to s 4C(3) of the Act in considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’. Section 3AAA provides the Court must take into account all the circumstances that are relevant to the matter, including, but not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, ss 4C(4) and 4D(1)(b) of the Act provide the Court must apply the ‘unacceptable risk test’. Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In applying the unacceptable risk test, s 4E(3) of the Act provides the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
The applicant
The applicant was born in September 2002 and is 16 years old.
The applicant was removed temporarily from his mother’s care when he was 18 months old. His father passed away when he was about seven years old. Approximately two years later, his mother met her current partner, who was physically abusive towards the applicant and towards her in front of the applicant. This partner reportedly has a very serious criminal history.
In November 2015, when the applicant was nine years old, he was removed from his mother’s care and made subject to a care by Secretary order. Since this time, he has lived in and out of various placements, including two kinship placements, multiple residential care facilities and motels. From July 2018 until the time of his arrest, he was residing at a Department of Health and Human Services (DHHS) residential care facility in Ballarat East. His current care by Secretary order expires on 25 March 2019.
On 4 March 2019, the applicant’s case managers at Berry Street referred him to DHHS as they believed he met the criteria for a placement in secure welfare, under s 72P of the CYF Act. Berry Street assessed the applicant as posing an immediate risk to himself and that his protective needs could not be met in his current placement. Despite this, DHHS determined the applicant should remain at the residential care facility in Ballarat East under a care by Secretary order.
The applicant’s mother lives in Ballarat and remains in a relationship with the same partner. In her affidavit in support of the application, Lucy Andressen of Victoria Legal Aid states the applicant maintains a close emotional connection to his mother and demonstrates protectiveness towards her. He has expressed ongoing fears for his safety due to his step-father, and instructs that many of the occasions he absconded from the residential care unit were to visit his mother.
Criminal history
The applicant has a relevant criminal history, including findings of guilt for offences of burglary, theft, dishonesty offences, damaging property, contravention of intervention orders, possession of weapons, assault, possession of drugs of dependence, unlicensed driving, failing to answer bail and committing offences whilst on bail.
However, it is submitted on behalf of the applicant that this criminal history is limited. In particular, it was noted the dishonesty charges relate to objectively minor incidents, including theft of a $5 sandwich, attempted theft of a can of soft drink, dealing with proceeds of crime by eating chips and beef jerky stolen by other children, and theft of a scooter.
The applicant is currently serving two twelve month Youth Probation Orders, to which he was sentenced by the Ballarat Children’s Court following consolidated pleas on 23 October 2018 and 29 January 2019.
The Informant Aranyosi matters and family violence orders
Pursuant to s 5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is a FVIO, or any other family violence safety notice or domestic violence orders in force against the applicant.
The prosecutor has indicated there is one FVIO in place against the applicant, naming his ex-girlfriend as the affected family member. His ex-girlfriend is 17 years old and is also the complainant in the Informant Aranyosi matters. There is also an earlier FVIO naming the applicant as the affected family member, against his ex-girlfriend.
The FVIO is in place as a result of the Informant Aranyosi matters, which involved five family violence incidents that occurred between April 2018 and January 2019 and involved various verbal and physical assaults between the pair.
Submissions and evidence
The applicant contends that the factors outlined below are established by the evidence and together demonstrate a compelling reason that justifies the grant of bail. It is further submitted that these factors establish that any risk may be ameliorated to an acceptable level through the imposition of bail conditions.
Availability of accommodation and support services
At the hearing of this matter, the applicant exhibited a Youth Justice Bail Service Report, authored by Andrew Palmer and dated 12 March 2019. Mr Palmer also gave detailed evidence before me.
It is of particular significance that Youth Justice recommend the applicant for an intensive bail program. The Court was provided with a timetable for his engagement with appropriate services, as well as a non-compliance response plan. Mr Palmer confirmed Youth Justice’s proposal was for the applicant to undertake the Youth Support and Advocacy Service (YSAS) Withdrawal Program for a period of up to 10 days, and then commence the intensive bail program supported by Youth Justice Community Support Service (YJCSS). It was further noted that the applicant would remain supported by Berry Street under his care by Secretary order.
It is submitted the applicant has stable accommodation available to him at both the YSAS Fitzroy Withdrawal Unit and his previous residential care facility in Ballarat East.
I was provided with evidence that the YSAS Withdrawal Unit would admit the applicant into its voluntary detoxification program if bail were granted to him today. Mr Palmer outlined that the program involves overnight stays with 24 hour supervision and offers individual needs assessments, daily activities, and drug and alcohol education. The applicant would also have access to a gym, a pool, acupuncture and massages. He would be permitted visitors, so YJCSS and Berry Street workers could continue to engage with him there and during his transition to the community.
Upon discharge from YSAS, it is proposed the applicant would undertake an intensive bail program involving:
·educational activities through Berry Street and a local secondary school’s Discovering Other Talents & Skills program;
·intensive case management with Berry Street;
·alcohol and drug counselling and other health appointments;
·recreational activities supported by YJCSS and Berry Street; and
·scheduled visits with his mother.
Youth Justice assert such services would enable the applicant to be monitored and risk factors managed, and that support workers would report any non-compliance with bail conditions. It is submitted the applicant has demonstrated a willingness to address his issues with illicit substances and engage with available services.
Seriousness of the alleged offending and strength of the prosecution case
The applicant concedes the offences of aggravated burglary, assault and related charges arising out of the incident alleged to have occurred on 25 February 2019 are ‘undoubtedly serious’. However, he denies these allegations and submits the only evidence provided by the prosecution is the complainant’s identification of the applicant on a photo board. The applicant notes his defence intends to raise issue with this identification process.
It is noted the charges relating to the theft of a motor vehicle and unlicensed driving on 1 – 2 March 2019 are also serious, and the applicant has made full admissions in respect to these allegations. The applicant has likewise made full admissions to the theft and graffiti offences, although it is submitted on his behalf that these offences are objectively minor in comparison.
In respect of the most serious offence before the Court, the home invasion charge, I note there is evidence from the complainant identifying the applicant as the perpetrator, and that he was later found with various items belonging to the complainant. However, I was informed that the applicant currently intends to contest the charge. It is not my role to form final views about whether the applicant will be found guilty of this offending. The best that can be said is that the case against the applicant is neither strong, nor inherently weak.
Delay and likely sentence
It is noted on behalf of the applicant that if he was not granted bail, he would spend 15 days in detention before the next mention of his matters on 18 March 2019. This would be the longest period he has ever been remanded.
The applicant contends the length of time he is likely to spend in custody if bail were refused may exceed the sentence imposed if he was found guilty. It is submitted that CYF Act provides primacy must be given to the principle of rehabilitation when sentencing a child, and a court must not impose a sentence at a level of the sentencing hierarchy unless satisfied it is not appropriate to impose a lesser sentence. It is submitted, particularly as this is the first extreme escalation of the applicant’s behaviour, that a non-custodial and therapeutic disposition of the matter would still be appropriate in the circumstances.
The respondent agrees that if the matter was contested, there would be a delay of some months and the applicant would spend a considerable period of time in custody, greater than any sentence he would likely receive.
Special vulnerability
It is submitted on the applicant’s behalf that there are a number of factors that make him particularly vulnerable in custody. This factor is a matter for specific consideration pursuant to s 3AAA(1)(h) of the Act.
The applicant is a child with a history of deliberate self-harm and suicidal ideation, including attempted suicide by drug overdose. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Post-Traumatic Stress Disorder (PTSD), has substance abuse issues and remains at risk of self-harm. The respondent accepted these submissions.
Taking these factors into account, particularly in the context of the applicant’s personal circumstances outlined above, I am of the opinion that the applicant has demonstrated a special vulnerability.
Risk factors
Youth Justice have identified risks that the applicant may relapse into illicit drug abuse and that he has a history of not engaging with services, absconding from his DHHS residence, and non-compliance with bail.
The respondent also notes the applicant has issues with drug use and convictions for failing to comply with previous bail conditions. However, as I will note later, the respondent agrees that any risk can be made acceptable through the imposition of stringent conditions.
Conclusion
In the affidavit of Thomas Randla dated 12 March 2019, the respondent conceded it was open for the Court to find a compelling reason exists that justifies the grant of bail, but opposed the application on the basis there would be an unacceptable risk that the applicant would commit an offence if released on bail, endanger the safety or welfare of members of the community, and fail to surrender himself into custody.
In light of the Youth Justice report and Mr Palmer’s evidence, the respondent revised its position and submitted I could be satisfied any risk may be ameliorated to an acceptable level through the imposition of appropriate conditions. Acting with an appropriate sense of fairness, the respondent finally submitted that, having read the Youth Justice report and heard the viva voce evidence, the respondent had not met the onus required to establish that unacceptable risk had been made out. The respondent conceded that it was open for the Court to find compelling reason had been shown, and that any risk could be reduced to an acceptable level through the imposition of stringent conditions on a grant of bail.
In Re Ceylan,[4] Beach JA considered the inquiry required under s 4(4) of Authorised Version No. 138 of the Act as to whether an accused shows compelling reason why their detention in custody is not justified. His Honour held:
For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[5]
[4][2018] VSC 361.
[5]Ibid [46].
His Honour further determined:
compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary … to show a reason which is irresistible or exceptional … in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist. [6]
[6]Ibid [47].
The statutory provisions which applied in Re Ceylan have since been amended. Beach JA considered the current provisions Re Alsulayhim[7] and held:
The test in Ceylan was whether there was compelling reason why an applicant’s detention in custody was not justified. Section 4C requires a compelling reason ‘that justifies the grant of bail’. While the statutory language is slightly different, the expression ‘compelling reason’ remains. Having considered s 4C in context, there is no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason’. Further, the presence of the indefinite article in s 4C before the words ‘compelling reason’ does not mandate any different approach, to the issue of whether bail should be granted, from that described in Ceylan.[8]
[7][2018] VSC 570.
[8]Ibid [28].
In Re JO, T Forrest J further held, in the context of a child applicant facing the exceptional circumstances test:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[9] (emphasis added)
[9][2018] VSC 438 [14].
His Honour’s comments have been cited and affirmed by this Court on several occasions where the exceptional circumstances test applies.[10] In my opinion, his Honour’s remarks are also pertinent to cases such as the present where the compelling reason test applies. As T Forrest J stated, the Court must take into account the considerations set out in s 3B(1) of the Act when making any determination under the Act in relation to a child. As such, determining whether an applicant has shown a compelling reason exists that justifies the grant of bail is a different exercise in the case of child.
[10]Re TP [2018] VSC 748 [34]; Re NB [2019] VSC 37 [29]–[30]; Re DB [2019] VSC 53 [46]; Application for Bail by LT [2019] VSC 143 [37]; Re DR [2019] VSC 151.
Section 3B(1)(a) of the Act requires the Court to consider all other options before remanding the child in custody. Further, and of particular relevance to the applicant, ss 3B(1)(b) and (d) require the Court to take into account the need to strengthen the child’s relationship with their family, and the desirability of allowing their education and training to continue without disturbance. In the applicant’s case, the intensive bail program proposed by Youth Justice is designed to address both these important issues.
Having weighed the submissions and evidence before me, and taking into account s 3B of the Act and all the surrounding circumstances, I am satisfied the applicant has shown, through a combination of factors, that a compelling reason exists that justifies the grant of bail. I am particularly swayed by the applicant’s youth and special vulnerability, the comprehensive support services available through the Youth Justice intensive bail program, and the attitude of the respondent to the application.
Having considered all these factors, I further find that stringent conditions to a grant of bail can ameliorate what might otherwise be unacceptable risk factors.
Accordingly, I will grant bail to the applicant on the following conditions:
(a)He attend the Ballarat Magistrates’ Court on 18 March 2019 and then surrender himself.
(b)He report to [YSAS] in Fitzroy by 3:00pm on 13 March 2019 and:
(i)participate in and complete the YSAS Fitzroy Withdrawal Program; and
(ii)comply with all lawful directions of any officer of YSAS.
(c)He reside at a premises approved by [DHHS] (‘the approved premises’) … and not change that address without the leave of the Court.
(d)He remain at the approved premises between the hours of 7:00pm and 6:00am each day for the duration of bail, unless in the company of an officer of YSAS or Youth Justice, or a delegate of DHHS.
(e)He present himself at the front door of the approved premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(f)Upon discharge from the YSAS Fitzroy Withdrawal Program, he report Monday, Wednesday and Friday to the Ballarat Police Station between the hours of 6:00am and 7:00pm.
(g)He report to [YJCSS] and Berry Street within two working days after this order coming into force and:
(i)comply with all lawful directions of any officer of YJCSS or Berry Street; and
(ii)attend all appointments as directed by YJCSS or Berry Street.
(h)He abstain from the consumption of any alcohol or drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(i)He submit to drug and alcohol testing if required to do so by any member of Victoria Police for the duration of the bail period.
(j)He not contact, directly or indirectly, the co-accused for the duration of the bail period.
(k)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(l)He not leave the State of Victoria.
(m)He not attend any points of international departure.
(n)He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 5 April 2019, and any further dates this Court appoints during the course of this order.