Re JO

[2018] VSC 438

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0152

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by JO

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2018
DATE OF JUDGMENT:	7 June 2018
CASE MAY BE CITED AS:	Re JO
MEDIUM NEUTRAL CITATION:	[2018] VSC 438

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CRIMINAL LAW – Application for bail – 13 year old applicant – Bail not opposed – Whether applicant has demonstrated exceptional circumstances – Applicant’s age significant in assessing whether applicant has demonstrated exceptional circumstances – Bail Act 1977 (Vic) ss 3B(1), 4A, 4B, 4E(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich SC with Ms A Brennan	James Dowsley & Associates
For the Respondent	S Ballek	Office of Public Prosecutions

HIS HONOUR:

1. On 31 May 2018, the applicant, aged 13, was arrested and remanded in custody on the following charges:

·Criminal damage;

·Committing an indictable offence whilst on bail;

·Wilful damage of property;

·Unlawful assault.

1. The informant for these offences is First Constable Walia.  The charges arise out of events alleged to have occurred on 31 May 2018 at the residential care facility where the applicant was residing.

1. At the time of this alleged offending, the applicant was on separate grants of bail for five outstanding sets of offences.  These are alleged to have occurred between 1 March 2018 and 6 May 2018.

1. On 31 May 2018, the applicant made an application for bail at the Frankston Children’s Court.  This application was refused on the basis that although the applicant had established exceptional circumstances, he was nonetheless an unacceptable risk of committing further offences.  

1. The applicant applies to this Court for a grant of bail.

The statutory test

1. Under the new legislation, having been charged with an indictable offence that is alleged to have been committed while the applicant was on bail for other indictable offences, the applicant accepts that, by reason of the operation of s 4A of the Bail Act 1977 (Vic) (‘the Act’), he must demonstrate that ‘exceptional circumstances’ exist that justify the grant of bail. Should the decision-maker be satisfied of this, he or she must proceed to consider whether the applicant is an unacceptable risk of a kind referred to in s 4E(1)(a).[1]  If the decision-maker is satisfied that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety or welfare of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person, the Court must refuse bail notwithstanding that the applicant has satisfied the ‘exceptional circumstances’ test.  The burden of proving there is an unacceptable risk of the prescribed type rests with the prosecution.

   [1]See also Bail Act 1977 (Vic) s 4B.

1. Given that the applicant is a child, the Court is also required to take into account the matters listed in s 3B(1) of the Act. I am required to consider the following:

(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 alleged offending – Informant Walia

1. The prosecution allege that at approximately 12:55am on 31 May 2018, police attended the Kananook Railway Station in response to a report from the residential care unit in Seaford that the applicant and a fellow resident had absconded from the unit while under the influence of alcohol, and refused to return as directed.  Police and youth workers attempted to negotiate with the applicant to return him to the unit and were verbally abused.  The applicant was thus in breach of existing bail conditions.  He was arrested and returned to the residential care unit.

1. About four hours later, it is alleged that the applicant threw a piece of fruit at a wall, causing damage to a clock inside the residential care facility.  It is further alleged that the applicant damaged ornaments and pot plants belonging to the Department of Health and Human Services (‘DHHS’), and that he attempted to throw a coffee table at a wall and to upturn a book case. 

1. He was arrested and conveyed to Frankston Police Station.

The applicant’s background

1. As I have said, the applicant is 13 years of age.  He was placed under the guardianship of DHHS by his mother, who was unable to manage his behaviour.  He was placed at a DHHS residential care home.  He has a history of substance abuse after being introduced to an illicit substance by his father at the age of 10.  His father committed suicide by heroin overdose in December 2017.  The applicant has one prior finding of guilt for theft and committing an indictable offence whilst on bail in March 2018, for which he was released on a good behaviour bond.  This conviction is currently the subject of an appeal.  The appeal is listed for hearing in the County Court on 30 July 2018.

The applicant’s submissions

1. In an affidavit affirmed by the applicant’s solicitor, in support of a grant of bail, she submitted that the following matters are established by the evidence, and together establish exceptional circumstances that justify the grant of bail:

(a)   the applicant is a young offender;

(b)  the applicant has stable accommodation available to him upon release at DHHS residential care, as he is currently under the care of DHHS;

(c)   the applicant has support available to him from his mother and his Youth Justice case worker, Jo Linard;

(d)  the applicant is able to continue with the Supervised Bail Program imposed by the Frankston Children’s Court on 20 March 2018;

(e)   the applicant has been assessed by Mr Jeffrey Cummins, forensic and clinical psychologist on 25 May 2018 in relation to the defence of doli incapax.  Mr Cummins provides an evidentiary basis for this defence;

(f)    the applicant has a very limited criminal history including one prior finding of guilt from earlier this year which is the subject of an appeal that has been listed in the County Court on 30 July 2018.  He has not served any time at a Youth Detention Centre;

(g)  the applicant had only been referred to Youth Support and Advocacy Service recently to address his substance abuse issues and has not had the benefit of this referral;

(h)  the applicant’s offending has been isolated to a three-month time frame;

(i)     the applicant is a victim of family violence perpetrated by his father.  The applicant has been in crisis since his father’s suicide.

The prosecution’s submissions

1. The prosecution position on this application is that bail is not opposed subject to the Court concluding that exceptional circumstances exist and appropriate conditions are imposed.  The prosecution conceded that if relatively strict conditions are imposed, then the applicant does not represent a s 4E unacceptable risk.

1. 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[2] 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.

   [2]See paragraph 7 of these reasons.

Analysis

1. I am satisfied that the applicant has demonstrated exceptional circumstances.  In particular, I am satisfied that a combination of the following factors operate to meet that stringent test:

(a)   The applicant’s very young age and his difficult circumstances;

(b)  Bail is not opposed, as I have explained;

(c)   The support offered by Youth Support and Advocacy Service, his mother, DHHS and the Supervised Bail Program;

(d)  The potential of a doli incapax defence.

I am also satisfied that the prosecution have not established that the applicant is a s 4E unacceptable risk provided relatively strict conditions are part of his bail undertaking.

1. I propose to grant the applicant bail on his own undertaking to attend at the Frankston Children’s Court in 12 June 2018 on the following conditions:

1.        The applicant reside at Department of Health and Human Services Residential Care at an address known to police and recorded on the Court file;

2.        The applicant not leave the Residential Care between the hours of 9.00pm and 6.00am except in the company of persons nominated by Youth Justice;

3.        The applicant present at the front door of the Residential Care during the curfew hours at the request of any member of Victoria Police, except if absent from the Residential Care in the company of persons nominated by Youth Justice;

4.        The applicant report each Wednesday and Saturday to the Frankston Police Station between 6.00am and 9.00pm;

5.        The applicant meet with Jo Linard of Youth Justice once per week;

6.        The applicant not use a drug of dependence as listed under the Drugs Poisons and Controlled Substances Act 1981 unless prescribed;

7.        The applicant not consume alcohol;

8.        The applicant attend drug and alcohol counselling through Youth Support and Advocacy Service (‘YSAS’) and comply with all lawful directions of YSAS staff;

9.        The applicant comply with all lawful directions of his Youth Justice case worker.

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