Re JS
[2020] VSC 606
•18 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0227
| IN THE MATTER of the Bail Act 1977 |
| IN THE MATTER of an application for bail by JS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2020 |
DATE OF RULING: | 18 September 2020 |
CASE MAY BE CITED AS: | Re JS |
MEDIUM NEUTRAL CITATION: | [2020] VSC 606 |
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CRIMINAL LAW – Bail – Applicant 17 years old – Multiple charges including aggravated burglary, committing indictable offence while on bail and theft – Applicant subject to four sets of bail in respect of multiple charges for like offending during previous 9 months – Whether exceptional circumstances established – Whether applicant an unacceptable risk of re-offending and endangering public safety – Bail Act 1977, ss 3AA, 3B, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Lacy | Dribbin and Brown Criminal Lawyers |
| For the Respondent | Mr S Payne | Victoria Police |
HIS HONOUR:
On 19 August 2020, the applicant was charged by Senior Constable McCooke with two charges of aggravated burglary, one charge of committing an indictable offence (burglary) while on bail, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft of a motor vehicle, two charges of attempted theft from a motor vehicle, and five charges of theft. She was also charged with traffic offences arising from the circumstances in which she was pursued and arrested, including unlicensed driving, dangerous driving, careless driving and failing to stop. Each of those offences were alleged to have been committed by the applicant and her co-offenders between 11pm on 18 August and 1:55 pm on 19 August.
The applicant was born on 14 September 2003, and has just turned 17 years of age. It is alleged that she committed the offences in company with three other co-offenders, namely, James Fernando and Shannon Mondon-Butler, who were each 19 years of age, and the applicant’s younger brother, VD, who was 14 years of age.
The applicant was arrested at 1:55 pm on 19 August. After her arrest, she attempted to asphyxiate herself whilst detained at Parkville Youth Justice Centre. As a result she required urgent medical attention, and she was unable to attend at Dandenong Children’s Court on 20 August. On the following day, 21 August, her application for bail before the Dandenong Children’s Court was refused, on the basis that Youth Justice was not supportive of the applicant being released on bail, and also due to concerns that the applicant posed a risk to the community. Following another assessment by Youth Justice, the applicant made a further application to the Dandenong Children’s Court on 28 August 2020. The magistrate who heard the application was satisfied that exceptional circumstances existed, but refused bail because the applicant constituted an unacceptable risk of reoffending and endangering the community. The matter is currently listed for a contest mention at the Dandenong Children’s Court on 25 September. The applicant now applies to this Court for bail.
The offending
The offences, in respect of which the applicant seeks bail, commenced with the theft of a Mini Cooper motor vehicle from premises in Cranbourne at approximately 11pm on 18 August. The owner of the vehicle, who was asleep, was awoken by the sound of his vehicle starting. He saw three offenders enter the vehicle and drive away.
Next, it is alleged that the applicant and her co-offenders, at 3:30 am, committed a theft at a service station in Paterson Lakes. The offenders were again observed departing from the premises in the stolen Mini Cooper.
It is alleged that thirty minutes later, at 4 am, the same offenders then committed an aggravated burglary on premises at Paterson Lakes. At the time the occupant of the premises was asleep. She was awoken by two male offenders in her bedroom going through her bedside drawers. The occupant’s mother confronted them and chased them out of the house. They drove off in the Mini Cooper vehicle that was stolen from the premises in Cranbourne. Before doing so, they had stolen items from a vehicle in the driveway of the premises, including a number of bankcards, a set of vehicle keys and some cash.
The next offence was an attempted aggravated burglary alleged to have been committed by the applicant and her co-offenders at 5:20 am at premises at Moxham Drive, Clyde North. The occupants of the premises, who were asleep, were awoken by the sound of the offenders attempting to gain entry through a sliding door which adjoined their bedroom. CCTV footage identified the offenders arriving and departing in the stolen Mini Cooper vehicle. As they did so, they stole a pair of Adidas runners from the front door. Subsequently, after the applicant was arrested, her mother found the runners at her home and handed them to the police.
Forty minutes later, at 6:00 am, the applicant and the co-accused are alleged to have committed an aggravated burglary at other premises in Reflections Drive, Clyde North. They attended at the premises in the stolen Mini Cooper. The applicant and Fernando gained entry to the premises through an unlocked roller door, and stole a set of keys to a BMW sedan. The occupant and her two young children were woken by the noise of the burglary. The occupant saw the applicant and Fernando inside her home. She shouted at them to leave the house, and she contacted police. The applicant stole the keys to the occupant’s BMW vehicle and commenced to leave through the front door. The applicant and Fernando left the house. They gained entry to the occupant’s BMW vehicle which was parked outside the residence. The applicant then ran back to the house and shouted abuse at the occupant. She then got into the BMW which departed in company with the stolen Mini Cooper. As a result of the experience, the occupant and her children have been traumatised, and they have had to engage with psychologists and counsellors to assist them to overcome their anxiety issues,
Subsequently, at 8:00 am, the stolen Mini Cooper sedan was identified in premises in Cranbourne. Mondon-Butler and Fernando were each then arrested. Subsequently, at 1:45 pm, the applicant was observed driving the stolen BMW vehicle in Mulgrave. She was also observed getting out of the vehicle and trying to open the doors of cars which were parked on the street. She opened the door of one vehicle and stole a set of keys and a pair of sunglasses from it. Ten minutes later, she was observed by police driving the stolen BMW vehicle along Vincent Street, Mulgrave at an excessive speed. She lost control of the vehicle and collided with a parked vehicle. She then drove into a second parked vehicle. Both of those vehicles were significantly damaged. The applicant was arrested and taken into custody.
Outstanding matters
At the time of her arrest, the applicant was on bail in respect of four other sets of charges. In addition, there were four sets of outstanding matters in respect of which she had been charged on summons. Each of those matters have subsequently resolved, and will be the subject of a plea hearing to be held on 25 September. It is necessary to briefly outline the nature of those matters.
On 2 August 2018, the applicant stole a hoodie from a store in Cranbourne Park shopping centre. She was arrested and charged on summons. On 21 June 2019, the applicant, in company with four other young females, stole a jacket from another store in the same shopping centre. She was arrested, made full admissions, and was released pending summons.
The remaining six sets of outstanding mattes against the applicant involved offences all of which were alleged to have been committed between January and June of this year.
On 30 January 2020, the applicant was arrested by Detective Senior Constable Warner and charged with thirty offences that were committed between 20 January and 22 January. They included one aggravated burglary, two burglaries, three thefts, sixteen charges of obtaining property by deception, five charges of dishonestly retaining stolen goods, one charge of dealing with property being the proceeds of crime, and two charges of theft of a motor vehicle. The aggravated burglary was the first such offence. It was alleged to have been committed by the applicant with three co-offenders at 1:40 am on 20 January at premises at Clyde North. At the time, the occupants of the premises were asleep. Subsequently, on the same day, it is alleged that the applicant broke and entered into two motor vehicles and stole items, and also committed a burglary in Cranbourne West. On the following day, 21 January, it is alleged that she broke and entered into three further vehicles and stole items from them, including a credit card, which she and her co-accused used to undertake fraudulent transactions throughout the day. After the applicant was arrested on 30 January, a search of her premises was undertaken by police, and a number of stolen items, and items that were fraudulently purchased, were seized. On the same day, the applicant was released on bail.
Three days later, on 2 February, the applicant was involved in an altercation with her boyfriend. On 18 June, she was charged on summons with unlawful assault and stating a false name arising from that incident. On 3 June 2020, she was also charged on summons with handling stolen goods, possession of a prohibited weapon (a set of knuckle dusters), and possession of the proceeds of crime, consisting of six assorted bankcards in the names of four different persons. Those offences are alleged to have been committed by the applicant on 18 March.
On 24 March, the applicant was arrested by Senior Constable McCooke and charged with the theft of a Mercedes Benz motor vehicle, dishonestly assisting in the retention of stolen goods (a purse containing bankcards), committing an indictable offence (the theft of the motor vehicle) while on bail, and two charges of possession of a drug of dependence (cannabis and alprazolam). She was released on bail.
Subsequently, on 21 April, the applicant was further arrested by Senior Constable McCooke. She was charged with offences that were committed on 18 April and 21 April, namely, two charges of theft of a motor vehicle, committing an indictable offence while on bail, two charges of handling stolen property, and possession of a drug of dependence (Xanax). The applicant was released on bail.
Finally, on 15 June, the applicant was arrested and charged by Senior Constable Stephens with a number of offences that were alleged to have been committed between 6 June and 15 June. They included one charge of aggravated burglary, one charge of committing an indictable offence (aggravated burglary) while on bail, and six charges of theft of a motor vehicle. The aggravated burglary was committed on a home in Rowville at 1:35 am on 10 June, while the occupants were asleep. One of the occupants was awoken by a torch light shining through her bedroom door. In the course of the burglary, two BMW and Hyundai motor vehicles were stolen.
The four sets of matters, on which the applicant was then on bail, were adjourned by Dandenong Children’s Court on 3 July and again on 17 July, on the latter date until 28 August. In the interim, the applicant was arrested by Senior Constable McCooke on 19 August and charged with the offences in respect of which the present bail application is brought. As I have noted, they have been listed for a contest mention at the Dandenong Children’s Court on 25 September next.
In the meantime, each of the four sets of charges on which the applicant had previously been granted bail, together with four sets of the summary charges, have resolved into a consolidated plea. In total, the applicant will plead guilty to thirty seven charges in respect of which she was on bail, and to seven charges in respect of which she was charged on summons. They are also listed to be heard before the Dandenong Children’s Court on 25 September.
The bail provisions
The present charges against the applicant include Schedule 2 offences under the Bail Act 1977, which, it is alleged, she committed while she was on bail in respect of charges for other Schedule 2 offences. Accordingly, s 4A(2)(c)(i) and s 4A(1A) of the Bail Act provide that the application for bail must be refused, unless I am satisfied that exceptional circumstances exist to justify the grant of bail to the applicant. Section 4A(2) provides that applicant bears the burden of satisfying the Court as to the existence of such exceptional circumstances.
In determining whether exceptional circumstances exist, the Court is required to take into account all the relevant circumstances, including, but not limited to, those prescribed by s 3AAA(1) of the Act. As the applicant is a child, pursuant to s 346(6), the Children Youth and Families Act 2005, s 3B of the Bail Act provides that the Court must take into a number of considerations. They include 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 her family, the desirability of allowing the applicant’s living arrangements and education to continue without interruption, the need to minimise the stigma to the applicant resulting from being remanded in custody, 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 a bail support service.
If the Court is satisfied that exceptional circumstances have been established, s 4D and s 4E of the Act require that the application for bail must be refused, if the Court is satisfied that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of the bail. If the applicant has established the existence of the requisite exceptional circumstances, the prosecutor bears the burden of satisfying the Court as to the existence of such an unacceptable risk.
The meaning of the term ‘exceptional circumstances’ has been considered in a number of decisions of this Court. In essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.[1]
[1]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18] (Tinney J).
In determining whether exceptional circumstances have been demonstrated, it is recognised that the age of the applicant is a significant factor to be taken into account. As Forrest J observed in Re JO:
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.[2]
[2][2018] VSC 438, [14]; Re AN [2020] VSC 569, [36] (Tinney J).
Applicant’s personal circumstances
The applicant does not have any previous convictions. She was born in New Zealand and migrated to Australia with her family about four years ago. Until she was remanded in custody, the applicant resided with her parents and her two younger siblings in Cranbourne North. Her family has experienced some instability since late 2019. More recently, it has been alleged that her father had engaged in a sexual relationship with one of the applicant’s peers who was also aged 17 years. A child protection notification was made on 24 August and an investigation into those allegations was undertaken.
The applicant has engaged in recreational use of Xanax and cannabis at least since early this year. She had been undertaking a certificate 1 course in General Education at Chisholm TAFE until her enrolment lapsed in December 2019 due to a period of disengagement. She proposes to recommence those studies if she is granted bail.
The applicant has not been formally diagnosed with any mental health issue. However, she has stated that she is quick to anger, and that she experiences the occasional feelings of anxiety. On 19 August 2020, she was hospitalised when she was discovered unconscious at the Parkville Youth Justice Centre, having attempted to asphyxiate herself after an altercation with her younger brother VD. Since then, she has been referred to the Orygen Forensic Mental Health Service and she has remained under the observation of Correct Care Australia staff while in custody.
The Court has been provided with two reports by the Youth Justice Bail Service. The first report, dated 27 August, stated that the applicant had engaged well with Youth Justice since being subject to supervised bail on 30 April 2020. The report stated that the applicant was committed to re-engaging with her education, that she had demonstrated compliance with the supervision component of the supervised bail, and that she has the support of her mother. The report also stated that the applicant had demonstrated to Youth Justice that understands the consequences should she fail to comply with the terms of bail on which she is released, and that the period on remand has provided her with an opportunity to reflect on her current situation. The authors of the report recommended that the applicant be released on terms that she comply with an intensive bail plan. That plan would involve the applicant participating in drug and alcohol counselling, engaging with Chisholm TAFE to complete her course, and consulting with the Senior Youth Justice Mental Health clinician.
The second report, dated 9 September, was substantially to the same effect. It noted that since 24 August, a senior child protection practitioner has been involved with the applicant’s family. He was not aware of any risk factors that might affect the applicant if she were to be released into the care of her parents. In view of the allegations concerning the applicant’s father, a clinician engaged in the multi-systemic therapy program has also been involved with the applicant’s family. However, the program has ceased to be provided because of the involvement of Child Protection, and the lack of motivation by the applicant’s mother. The report also notes that, since the incident in which the applicant engaged in self-harm when first remanded in custody, she has been under constant observation by Correct Care Australasia. A registered psychiatric nurse has advised Youth Justice that the applicant has not expressed any further suicidal ideations and has engaged well with her. The applicant is also currently working with a youth outreach worker at Youth Support Advocacy Service, who has been assisting her to develop harm minimisation strategies, and to gain an insight into the impact of illicit substances. That assistance has been provided to the applicant by mobile telephone audio calls. The report again recommends that the applicant be released on intensive bail subject to conditions, including that she comply with all directions of the Youth Justice Bail Intensive Support Service, that she reside at her parents’ home, that she not leave the residence between 8:00 pm and 6:00 am, that she engage in drug and alcohol counselling as directed by Youth Justice, and that she present at the front door of the residence during curfew hours on request by any member of Victoria Police.
The evidence
At the hearing of the application, two witnesses gave evidence, namely, the informant, Senior Constable Ashlee McCooke and Mr Sajid Chaudhery, who was the applicant’s Youth Justice case manager.
The evidence of Senior Constable McCooke principally concerned the family situation of the applicant. Senior Constable McCooke stated that she had had a substantial matter of contact with the applicant’s mother, Mrs RD, over the previous six months. Senior Constable McCooke’s impression is that Mrs RD wishes to support her daughter, but on a number of occasions she has told Senior Constable McCooke that the applicant is out of control, particularly when she is affected by drugs. At different times she has expressed to Senior Constable McCooke that she is ‘fed up’ with the applicant and does not wish to speak with her. Since the arrest of the applicant on 19 August, Senior Constable McCooke has made a number of attempts to contact the applicant’s parents, but neither of them have returned her calls.
Senior Constable McCooke also gave evidence as to some SMS messages that have been extracted from the mobile telephone used by the applicant, and in the possession of the applicant at the time of her arrest. When downloaded, Senior Constable ascertained that on 22 March last, there were some SMS messages which appeared to be between the applicant and her father. If that is correct, the content of those messages would seem to indicate that the applicant’s father knew of the applicant’s offending, that he was warning her to be careful in undertaking a burglary in which she is involved, and that she should not use drugs until she got home. The content of those SMS messages was only drawn to the attention of the applicant’s legal representatives shortly before the hearing of the bail application. Counsel for the applicant stated that the applicant denies being the author of, or involved in, any of those messages.
Mr Chaudhery gave some detailed evidence as to the involvement of the applicant with Youth Justice before her most recent arrest, and the plans that have been made for the implementation of the proposed Youth Justice Bail Intensive Support Service if the applicant were granted bail.
In particular, Mr Chaudhery stated that the proposed plan is more intensive, both in terms of the program that was offered, and the oversight, than the program that had been in place for the applicant before her most recent arrest. It is proposed that the services to be provided to the applicant, under the revised plan, will involve four combined facets. First, Mr Chaudhery, as the case manager, will have twice weekly appointments with the applicant. Secondly, Ms Lanada Gregory, a member of Youth Justice Community Support Services, will provide guidance to the applicant in respect of her recreational and leisure activities on an after-hours basis and on Saturdays. Ms Gregory will be in contact with the applicant once each week. Thirdly, the program would involve a senior mental health clinician from Youth Justice, Ms Jasmine Organ, who is also connected with Monash Health. If the applicant were released on bail, Ms Organ would have an appointment with her next Tuesday, 22 September. Fourthly, the program would also involve the Youth Substance Abuse Service. The applicant’s youth outreach worker, Mr Gareth Joubert, would be involved, through that program, in drug and alcohol rehabilitation counselling. Mr Joubert has told Mr Chaudhery that he had established a good rapport with the applicant, but in the week that preceded her most recent arrest, she had ceased to have contact with him.
Mr Chaudhery also described a timetable which has been prepared for the applicant, should she be released on bail. It would involve the applicant being re-enrolled in the certificate 1 of General Education course that she had previously commenced. She would undertake that course each weekday morning. Each day she would be required to log into the program, and her attendance would be marked. Mr Chaudhery stated he would be in touch with the applicant’s educator to ensure that she attended her course. He said that on each afternoon the applicant would have an appointment either with Mr Chaudhery or with one of the other services which comprise the proposed program, with the exception of Friday. In addition, each Saturday she would have an appointment with Ms Gregory of the Youth Justice Community Service in relation to her social activities.
Mr Chaudhery stated that the protocol for the intensive bail support service would be more stringent than those that were in place in the program that was implemented before the applicant’s recent arrest. In particular, if there was any breach of the conditions of the bail, Youth Justice would be required to inform the police informant within 24 hours. In addition, there would be an immediate care team meeting between the members of the four components of the program in order to address any issue that had caused that breach.
Mr Chaudhery referred to issues relating to the instability of the applicant’s family which, he considered, had played a significant role in the applicant’s conduct and offending during the last nine months. He described the difficult circumstances of the applicant’s home life particularly in late 2019, when her father was working night shift, the applicant’s mother had a new baby, and the applicant had an active role in caring for the baby. It would also appear that there has been substantial tension between the applicant’s parents which, it was considered, might have precipitated the last episode of offending. Mr Chaudhery stated that the applicant had told by him that, since her time on remand, her parents had resolved their differences and had undertaken to address the instability in the applicant’s home.
Finally, Mr Chaudhery stated that he considered that as a result of her recent time in detention, the applicant had gained a better sense of wishing to achieve positive outcomes. She is more interested in re-enrolling into her education, and she expressed a desire not to disappoint her mother.
Applicant’s submissions
On behalf of the applicant, it is submitted that the applicant has established exceptional circumstances justifying her release on bail, consisting of a combination of the following:
(1)The applicant is 17 years of age and at the time of offending she was 16 years of age.
(2)The applicant has no previous criminal history, having received one caution in 2019.
(3)The current remand period represents her first time in custody. She has spent some 29 days in custody.
(4)The applicant is vulnerable while in custody in light of her mental health state and the episode of self-harm that occurred on 19 August.
(5)In light of her youth and circumstances, there is a significant likelihood she would not receive a sentence of detention in a Youth Justice Centre for the offending.
(6)The applicant is facing considerable delay in the matter being heard due to restrictions associated with the current COVID-19 pandemic.
(7)The offending that is alleged in the charges took place in the context of difficult family circumstances affecting the applicant, which have since resolved.
(8)The period which the applicant has spent in detention has been a salutary experience for her, and has caused her to gain insight into her offending and its underlying causes.
(9)Due to the current COVID-19 pandemic, conditions in custody are particularly onerous, and in addition the applicant’s health is at risk while she remains in custody.
(10)The applicant has support in the community through the Youth Justice Intensive Bail program, which is a more onerous program, with increased obligations, than the youth supervised bail by which she had previously been supported.
(11)The applicant has stable accommodation with her family if she were released.
(12)The applicant has been enrolled and accepted by Chisholm TAFE to re-engage with her education. She has expressed a desire to continue that education and vocational training in hairdressing.
Counsel for the applicant further submitted that if the applicant were released on bail, she would not constitute an unacceptable risk of offending, or endangering the safety and welfare of members of the community. In that respect, she relied significantly on the evidence of Mr Chaudhery, and submitted that the intensive bail program that has been devised would provide a material level of assurance against the applicant re-engaging in offending behaviour. There are now a number of people who would be directly involved in the supervision of the applicant’s program, so that if a problem occurred, it is likely to be detected and addressed very quickly. It was further submitted the applicant has now been in custody for some 29 days, which has been a salutary experience for her, which should be sufficient to deter her from further offending. In addition, during the time in detention, the applicant had gained an insight into her conduct, and into the causes of it.
The respondent’s submissions
It is submitted on behalf of the respondent that the applicant has not established the existence of exceptional circumstances, and that there is an unacceptable risk that if she were granted bail, the applicant would commit offences while on bail, and would endanger the safety or welfare of members of the community.
In submitting that the applicant has failed to demonstrate exceptional circumstances, counsel for the respondent addressed each of the matters specified in s 3AAA(1) of the Bail Act which are required to be taken into account in determining whether such circumstances exist. He submitted that the offending, in the main, is inherently serious. Some of the allegations which form the charges are serious examples of those charges. Further, it was submitted, the prosecution case against the applicant is strong. At the time of the offending, that was the subject of the charges on 19 August, the applicant was on bail for four previous sets of matters. She had, to a significant extent, failed to comply with the conditions of the previous grants of bail. In particular, the offences, which were alleged to have been committed on 24 March, the offences which were alleged to have been committed between 18 and 21 April, and the offences which were alleged to have been committed between 6 June and 15 June, include a number of indictable offences committed by the applicant while on bail. The current matters, which were alleged to have occurred on 19 August, include eight indictable offences committed by the applicant while on bail. Further, it is noted that while the applicant might have available accommodation with her mother and the support of Youth Justice, nevertheless that accommodation and support were available to her when all of the previous offending committed by her took place.
In respect of the other matters listed under s 3AAA, counsel acknowledged that the applicant has no criminal history, that she has a special vulnerability by virtue of her being a child, and that while it would be open to a court in sentencing the applicant to consider the imposition of a period of youth detention under a Youth Justice Centre Order, such an outcome is unlikely.
Taking those matters into account, counsel for the respondent submitted that the applicant has not demonstrated that exceptional circumstances exist which would justify the grant of bail.
Counsel for the respondent further submitted that if the applicant were granted bail, she would be an unacceptable risk of endangering the safety or welfare of another person, and of committing an offence while on bail. Counsel noted that the current matters were alleged to have occurred while the applicant was subject to four existing grants of bail. The offending that was the subject of those grants was similar to the matters with which she was charged on 19 August, and demonstrates a lack of regard for the safety and property of other members of the community. The current matters are alleged to have occurred while the applicant was subject to supervised bail under Youth Justice. Further, it was submitted, there was no evidence that the applicant’s home environment has improved since her recent arrest. Thus, it was submitted, the underlying domestic instability which played a role in her offending remained, and might precipitate a further bout of offending by the applicant. Therefore, it was submitted, the conditions proposed for the applicant’s release on bail would be inadequate, and there would be a significant risk that if she were released, she would continue to commit offences while on bail, and in doing so would endanger the safety or welfare of other persons.
Analysis and conclusions
The question, whether the applicant should be granted bail in this case, is particularly difficult. The offending, with which the applicant has been charged, is serious. Most significantly, it occurred in the context of a most substantial spate of offending engaged in by the applicant since January. During that time, the applicant had the benefit of four previous grants of bail. As I remarked at the conclusion of argument, if the applicant were an adult, I would have had no hesitation in refusing her bail. However, the circumstance that at the time of the offending, and at the time of this application, she was and is a child raises other important considerations that must be taken into account.
The first question is whether the applicant has demonstrated that there are exceptional circumstances that justify the grant of bail. In order to answer that question, it is necessary to consider the factors specified in s 3AAA of the Bail Act.
As I have mentioned, a central consideration is the fact that at the time of the alleged offending, in respect of which the applicant seeks bail, she was already on four previous sets of bail in respect of serious offending in which she had engaged over the previous eight months. The alleged offending in this case therefore constituted a blatant breach by her of the obligations imposed on her by each of those orders for bail. That consideration has particular weight, bearing in mind that at the time at which the applicant committed the offences that were the subject of the second, third and fourth grants of bail, she, in doing so, breached a previous grant or grants of bail.
Counsel for the applicant has submitted that the prosecution case against her client is, in the main, weak. That proposition was the subject of detailed cross-examination by counsel of Senior Constable McCooke. At this stage, it is difficult to form any conclusion as to the strength or otherwise of the prosecution case in respect of the charges, particularly since the prosecution brief has not yet been served on the applicant. On the very limited material available, however, it would seem that the prosecution has a quite strong case in respect of the aggravated burglary, the theft of the BMW motor vehicle, and the theft, that were perpetrated at the premises at Reflections Drive, Clyde North, and that were the subject of charges 7, 8 and 9, together with the two charges of attempted theft from motor vehicles (charges 11 and 12). The prosecution appears to have some evidence connecting the applicant with the burglary at Paterson Lakes at 4:00 am (charge 2) and with the attempted burglary at Moxham Drive at 5:20 am (charge 10). The evidence consist of the type of the vehicle in which the offenders arrived at each of those premises, the proximity of each of those premises to the residence at Reflections Drive, Clyde North, the timing of each of those incidents, the identity of the co-offenders, and the location of the applicant’s mobile telephone at the time of those incidents. In addition, the runners, that were stolen in the course of the attempted aggravated burglary at Moxham Drive, were later found at the applicant’s home. Taking those matters into account, I could not conclude, at this preliminary stage, the prosecution’s prospects of success in respect of those charges is weak.
On the other hand, there are a number of relevant factors that weigh in favour of a conclusion that the applicant has established exceptional circumstances. In particular, the age of the applicant at the time of the offending, and at the time of this application, is of significance. As I have outlined, the question whether the applicant has established the existence of exceptional circumstances must be determined through the prism of the fact that the applicant is, and at the time of the alleged offending was, a child. Further, she does not have any previous criminal convictions. I am satisfied that she is quite vulnerable, in light of her attempt at serious self-harm on the evening of her remand. Her vulnerability is exacerbated by the fact that she appears to be addicted to the benzodiazepine, Xanax. Although no formal mental health assessment appears to have been conducted at this stage, I note that after the applicant’s attempt at self-asphyxiation, she was placed under constant observation from Correct Care Australasia, who in turn referred her to an Orygen Forensic Youth Mental Health Service clinician.
A particularly relevant consideration is the likely sentence to be imposed on the applicant should she be found guilty of the offences, and the probable period of delay before the charges are heard and determined. As counsel for the respondent fairly acknowledged, while a term of detention at a Youth Justice Centre might be open to the sentencing court in this case, nevertheless such a disposition is unlikely. The relevant provisions of the Children Youth and Families’ Act 2005, and in particular ss 360 and 361, have the effect that a term of detention in a Youth Justice Centre may only be imposed as a last resort, if no other disposition, specified in s 360(1), is appropriate in the circumstances of the case. Counsel for the respondent also accepted that, in light of the delays that have resulted from the recent COVID-19 pandemic, it is unlikely that, if the applicant contests the charges, they will be heard and disposed of this year. The applicant has already been in custody for some 30 days. Thus, if she were not granted bail, it is quite possible that she might remain in detention for in excess of five months, in circumstances in which, as I have stated, it is unlikely that she will ultimately be sentenced to a term of detention in a Youth Justice Centre.
In that context, a further consideration, which must be taken into account, is the current COVID-19 pandemic that is affecting the community. The effect of the pandemic, in respect of an application for bail, has been discussed in a number of decisions of judges of this Court. No evidence has been adduced in this case as to the steps taken by the authorities at Parkville to prevent an outbreak of the virus. However, counsel has helpfully drawn to my attention the recent decision of Tinney J in Re KN,[3] in which his Honour noted that detailed evidence had been put before him that indicated what his Honour described as the ‘quite extraordinary lengths’ by which justice authorities are trying to to prevent the spread of the virus within the youth justice facilities.
[3][2020] VSC 490.
Nevertheless, the pandemic is relevant for a number of reasons. First, if a case of infection occurs in the facility in which the applicant is detained, then it is probable that the residents of the facility, including the applicant, will be liable to stringent measures to protect them from infection. Those measures are likely to include lengthy periods of lockdown, which, in light of the applicant’s age and vulnerability, would be particularly difficult for her. In addition, as a result of the pandemic, personal contact visits have been suspended at Youth Justice Centres, so that the only contact which the applicant has been able to have with her family is by way of telephone. All of those matters render the applicant’s period of detention, while awaiting the hearing of her case, more onerous.
Finally, if the applicant were released on bail, she would have the benefit of the Youth Justice Intensive Bail Plan about which Mr Chaudhery gave evidence. While, as I shall discuss, that plan is by no means a guarantee against the applicant reoffending, nevertheless, it will provide some assistance to her to divert her from reoffending, and, importantly, it will address a number of the underlying issues which, it would seem, were factors in her recent spate of offending.
As I have earlier outlined, the assessment of whether exceptional circumstances exist in this case must be viewed in light of the fact that the applicant is a child. Taking that circumstance, and the other circumstances into account, and notwithstanding that the applicant committed the offences with which she is currently charged while already subject to four sets of bail, I am persuaded that she has established the existence of exceptional circumstances in this case, which would justify the release of her on bail.
The question, then, is whether the respondent has demonstrated that, if the applicant were released on bail, there would be an unacceptable risk that she would reoffend or that she would endanger the welfare and safety of members of the community.
That question is particularly difficult. In light of the pattern of the applicant’s offending throughout this year, and the serious nature of that offending, it is clear that, if the applicant were released on bail, there would be a not insignificant risk that she might engage in further offending. The critical question is whether such a risk is, in the circumstances, unacceptable. That question must, again, be viewed in light of the circumstance that the applicant is a child. Section 3B of the Bail Act specifies that in making a determination under the Act in relation to a child, the Court must take into account a number of matters specified in that provision, including the need to consider all other options before remanding the applicant in custody, the need to strengthen and preserve her relationship with her family, the desirability of allowing her living arrangements to continue without interruption, and the desirability of allowing her education to continue without interruption or disturbance.
Counsel for the applicant relied on three principal factors in submitting that the risk of the applicant reoffending is not unacceptable, namely, the applicant’s family arrangements, the fact that she has been on remand for in excess of four weeks, and, particularly, the program which will be provided by the Youth Justice Bail Intensive Support Program.
In respect of the first matter, I do have some concerns. It would appear from Mr Chaudhery’s evidence that the applicant’s prolific burst of offending conduct this year has occurred in the context of the quite disturbed home environment in which she was living. The evidence of Mr Chaudhery does not give me much confidence that that issue has been adequately addressed. Mr Chaudhery has only spoken to the applicant, about that matter, while she has been in detention. It does not appear that he has had any discussions with the applicant’s parents concerning the steps that have been taken to address the issues that, apparently, affected the applicant’s domestic environment. Further, while I am persuaded that the applicant’s mother is well motivated, it is clear that she has had very limited capacity to control the applicant’s conduct over the last nine months.
The other two factors, relied on by counsel for the applicant, are of greater moment. The applicant has now been in custody for in excess of four weeks. Mr Chaudhery’s assessment is that she has gained some insight into her offending, and into the need for her to address her addiction to Xanax and her antisocial conduct and for her to resume her education. Based on that evidence, I am persuaded that the applicant has learnt a salutary lesson from her time in detention. While it is a matter for speculation whether that lesson will, ultimately, deter the applicant from further offending, nevertheless it is a factor that weighs against a finding of unacceptable risk.
The program that was outlined in the report of the Youth Justice Bail Service, and by Mr Chaudhery in his evidence, does seem to be quite comprehensive and detailed, and is directed to some of the key elements which were at work at the time of the applicant’s offending. The program will involve the applicant having regular contact with one or more of the members of the services which will be provided to her. It will involve the applicant attending to her education on a daily basis. It will also address, hopefully, her drug problem, and her mental health issues. Further, the program will involve the applicant being actively engaged in constructive and positive steps that are designed to divert her from her offending conduct and the factors which contributed to it. I am satisfied that, in that way, those involved in the program will exercise a reasonable measure of supervision over the applicant, and will be quite well placed to detect whether she fails to comply with any of its requirements.
As I have stated, it is undeniable that there is a material risk that if the applicant is released on bail, she might reoffend. While the program, designed by the Youth Justice Bail Service, should significantly reduce that level of risk, nevertheless it is no guarantee against the applicant reoffending. Nevertheless taking into account the matters that I have discussed, and giving them appropriate weight in light of the fact that the applicant is a child, I am not persuaded that the risk of the applicant reoffending, or endangering the safety and welfare of members of the community, is unacceptable, if she were released on bail.
Conclusion
For the reasons I have stated, I am persuaded that exceptional circumstances exist which justify the grant of bail to the applicant. Further, I am not persuaded that the risk of the applicant reoffending, or endangering members of the community, is unacceptable, if she were released on bail.
Accordingly, I shall grant the applicant bail subject to conditions which will include the following:
(1) That the applicant reside at [redacted].
(2)That the applicant not leave the residence between 8:00 pm and 6:00 am except in the company of a parent or a person agreed and approved by Youth Justice.
(3)That the applicant attend and comply with all directives of the Youth Justice Bail Intensive Support Service.
(4)That the applicant engage in drug and alcohol counselling as directed by Youth Justice.
(5)That the applicant not use a drug of dependence as listed under the Drugs Poisons and Controlled Substances Act 1981 (Vic).
(6)That the applicant present at the front door of the residence during curfew hours upon request by any member of Victoria Police.
(7)That the applicant not associate with, nor communicate with, James Fernando and Shannon Mondon-Butler.
(8)That the applicant comply with the directions of the Chief Health Officer.
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