Re KE
[2021] VSC 175
•13 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2021 0071
IN THE MATTER of the Bail Act 1977
- and -
| IN THE MATTER of an application for bail by KE |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 April 2021 |
DATE OF RULING: | 13 April 2021 |
CASE MAY BE CITED AS: | Re KE |
MEDIUM NEUTRAL CITATION: | [2021] VSC 175 |
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CRIMINAL LAW – Bail – Applicant charged with carjacking, aggravated burglary, attempted aggravated burglary, theft of motor vehicle, and committing an indictable offence while on bail – Applicant also on bail in respect of three sets of other charges – Whether exceptional circumstances exist – Whether unacceptable risk – Bail refused – Bail Act 1977 ss 3AAA, 3B, 4AA, 4A, 4D, 4E, Children, Youth and Families Act 2005 s 346.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | WEstjustice |
| For the Respondent | Mr G Carr | Victoria Police |
HIS HONOUR:
The applicant, who is 16 years of age, was arrested on 29 January 2021 on one charge of carjacking, one charge of aggravated burglary, one charge of attempted aggravated burglary, one charge of theft of a motor vehicle, one charge of unlicensed driving and one charge of committing an indictable offence while on bail. Having been refused bail by the Children’s Court, he now applies to this Court for bail.
The Alleged Offending
The offences, that are the subject of those charges, were committed between 28 January and 29 January 2021.
The victim of the first charge, that of carjacking, was an elderly 94 year old man. Shortly after 8:00 am on 29 January, the victim got into his Holden Cruz sedan that was parked in the driveway of his home in Altona North, in order to visit his dying wife who was in palliative care. As he did so, he was approached by two males, one of whom is alleged to have been the applicant. They yelled at the victim and forcibly dragged him out of the vehicle. Having done so, the two offenders, and another male who was standing nearby, got into the vehicle and drove off with it. The victim was left lying on the ground near the entrance to the property. A short time later, he was helped to his feet by a neighbour who came to his assistance. As a result of the incident, the victim received minor injuries, including grazing to the right knee and a bruised hand.
Earlier, between 11:00 pm on the previous evening and 4:00 am that morning, three male offenders, one of whom is alleged to be the applicant, broke into an address in Point Cook. They removed car keys that were on the top of a refrigerator, and then stole a vehicle that was owned by the occupant. Those offences are the subject of charges 2 and 3, aggravated burglary and theft. The vehicle was subsequently located at Altona North after it had been involved in a collision.
At about 4:45 am on 29 January, it is alleged that the applicant and his co-offenders climbed over the rear fence of premises in Altona North, entered an unlocked vehicle in the back yard of the premises, and then kicked the rear panel of the back door of the garage. The occupant of the premises, who was woken by the noise, turned on the light, which caused the applicant and his co-offenders to flee. That incident is the subject of charge 4, attempted aggravated burglary.
The applicant was arrested on 29 January. When interviewed, he made admissions to each of the first five offences. In the course of their investigations police located CCTV footage from a McDonald’s shop on Ballarat Road, Footscray that depicted the applicant driving the Holden Cruz that had been stolen in the course of the carjacking. The driving by the applicant of that vehicle is the subject of charge 6, unlicensed driving.
Other Outstanding Charges
At the time of those offences, the applicant was on bail in respect of three other separate sets of charges.
On 28 September 2020, the applicant was arrested by Constable McKinnis on charges of intentionally causing injury, recklessly causing injury and unlawful assault. Those offences were alleged to have been committed by the applicant earlier on that day at 4:00 pm. It is alleged that at that time the victim was walking on a footpath in Hoppers Crossing. He noticed the applicant walking towards him and diverted onto the nature strip to permit the applicant to pass. When he did so the applicant verbally abused the victim and threatened to ‘bash’ him. The victim then walked away. The applicant followed him from behind, and punched the victim to the face, striking his nose with his left fist. The force of the impact was such as that it knocked the victim to the ground. As a result of the assault, the victim sustained a laceration to the nose. That assault is the subject of charges 1 and 2, intentionally or recklessly causing injury. The applicant then continued to verbally abuse the victim, before spitting on him and leaving the area (charge 3 — unlawful assault).
The assaults were witnessed by two other persons. Subsequently, at 7:00 pm, the applicant presented himself at Werribee Police Station in company with his mother, where he was arrested and interviewed. He made full admissions. According to the report of the informant, the applicant demonstrated no remorse towards the victim, and he began to laugh when he was shown photographs of the injuries sustained by the victim. The applicant said he did not feel any sympathy for the victim and did not feel bad about what he had done to him. The applicant was charged and bailed to attend Werribee Children’s Court on 17 November 2020. His bail was subsequently extended. The case is next listed for hearing on 15 June 2021 at the Werribee Children’s Court.
Subsequently, the applicant was arrested on 11 January 2021 on two separate sets of charges.
The first set of charges (comprising nine charges), in respect of which Senior Constable Iannelli is the informant, consists of one charge of home invasion, one charge of aggravated burglary, two charges of attempted theft of motor vehicle, one charge of theft of a motor vehicle, two charges of theft, one charge of handling stolen goods, and one charge of committing an indictable offence (home invasion) while on bail.
Each of those offences (except the eighth charge, handling stolen property) were committed on 5 January 2021. On that date, at 2:49 am, the applicant in company with three co-offenders attended at premises in Balmoral Avenue, Strathmore. The applicant and two co-offenders proceeded into the front yard of the premises and opened the car doors of two unlocked vehicles, rummaging through each of them. At the time one co-offender (‘KK’) was carrying a 30 centimetre long silver bladed knife which he had tucked into his waistband. The applicant and KK then proceeded to the back yard. There they removed their shoes, and entered the premises through an unlocked rear door. The family who lived there were then asleep. The applicant and KK stole keys to two motor vehicles and a handbag containing a purse. When the family dog barked and awoke the residents of the house, the applicant and KK departed from the premises.
Half an hour later, at 3:20 am, the applicant, KK and the two co-offenders attended premises in Carnarvon Road, Strathmore, some 450 metres distant from the premises at Balmoral Avenue. The applicant, KK and the two co-offenders then walked into the back yard area of the premises, where they opened an unlocked back door and entered the premises. There they stole car keys for a Mercedes Benz vehicle, which they stole as they departed the premises. The vehicle was subsequently located, on 6 January, in front of a vacant block in Werribee.
On 11 January, at approximately 1:30 pm, the applicant was observed driving a stolen vehicle in Hoppers Crossing. He drove to his home address in that suburb, and parked the stolen vehicle near it. A short time later, the applicant was arrested. When interviewed by the police, he made full admissions to the offending. In particular, he admitted that he knew that KK had a knife in his possession at the time of the house breaking in Balmoral Avenue.
The second set of charges (comprising 37 charges), that were laid against the applicant on 11 January (in respect of which Senior Constable Stewart is the informant), consists of four charges of aggravated burglary, two charges of attempted aggravated burglary, one charge of attempted armed robbery, one charge of attempted aggravated carjacking, one charge of burglary, nine charges of obtaining property by deception, one charge of attempting to obtain a financial advantage by deception, three charges of theft of a motor vehicle, four charges of theft, and one charge of criminal damage. The charges also include driving charges comprising failing to stop on a police request, driving in a manner dangerous, reckless conduct endangering serious injury and unlicensed driving.
Those offences were alleged to have been committed between 4 January and 10 January 2021. The charge of attempted armed robbery was committed at 11:45 pm on 7 January. It is alleged that the applicant and a co-offender followed the victim who was walking home from work in Altona North. When they caught up with the victim they yelled out at him ‘Give me all of your shit or I’ll stab you’. At the time, the applicant was holding a knife that was between ten and twelve centimetres long at his side. He began to thrust the knife towards the victim in an attempt to intimidate him. The victim refused to hand his items over. In response, the applicant’s co-offender struck him in the face. The victim then fled the scene and managed to contact the emergency number. However, by the time the police attended they were unable to locate the applicant or the co-offender.
On Friday 8 January 2020 at approximately 1:30 am, the applicant and the same co-offender attended premises in Altona North. They switched off the power at the power box, and then shone a torch in the front window. The occupants of the premises, who had been asleep, were awoken. Either the applicant or his co-offender then called out to the victims ‘Give me your money I have a gun’. The victims crawled into their adjoining bathroom and contacted the emergency number triple zero. The applicant and his co-offender then smashed the bedroom window. When the occupant called out that he had contacted the police, the applicant and his co-offender fled.
Approximately ten minutes later, the applicant and the co-accused entered a vehicle that was parked in other premises and stole a Mastercard. They then broke into other premises in Altona North, from which they stole keys to a motor vehicle. They stole that vehicle and drove off. In the following five hours, they used the stolen Mastercard to make six separate purchases totalling approximately $1,415. They also unsuccessfully attempted to set up an Uber account using the stolen Mastercard.
On the same date, the applicant and his associates entered a shed in other premises, stole a set of keys from inside a motor vehicle, and stole two motorbikes from the shed. The owner of the bikes gave chase. He located one of the motorbikes engulfed in flames. He observed the applicant and his co-offender standing next to a vehicle. When the owner of the motorbikes attempted to capture the co-offender, the applicant threatened to damage his vehicle if he did not let go of the co-offender.
On the next day, 9 January, the applicant and co-offenders committed another burglary at premises in Tarneit from which they stole bankcards. They then used the cards to purchase goods to the value of $444. On the next day, 10 January, at 1:00 am, the applicant and co-offenders entered another set of premises in Hoppers Crossing while the occupants were asleep. They stole car keys, cigarettes and a small torch. They were unable to steal the vehicle because it was blocked behind another vehicle.
Later on the same date, at 3:40 am, the applicant and two co-offenders walked past a vehicle that was parked outside premises in Sycamore Street, Hoppers Crossing. One of them, who was holding a large silver kitchen knife, opened the driver’s door and told the female occupant to get out of the vehicle. When she attempted to pull the door closed, another offender told her to get out of the car and pointed the knife at her in a threatening manner. The occupant managed to close and lock the door of the vehicle, and the applicant and his co-offenders then ran off.
About one hour later, at 5:00 am, the applicant and his co-offenders attempted to commit an aggravated burglary at other premises in Hoppers Crossing. They fled when the occupant awoke.
Between about 3:00 am and 5:00 am on 10 January, the applicant committed an aggravated burglary in other premises in Hoppers Crossing while the owner was asleep. He stole the owner’s car keys, which he used to steal his BMW Station Wagon.
On 11 January 2021 at approximately 1:30 pm, the applicant was observed by police driving the station wagon in Hoppers Crossing. When the police attempted to intercept the vehicle, the applicant drove onto the incorrect side of the road putting other road users at risk. He then returned to his home. The police attended those premises and arrested the applicant. The stolen vehicle was recovered.
The applicant was then interviewed by police. He made full and frank admissions to all of the offending which I have described.
The applicant is also subject to two separate sets of charges brought by way of summons, one of which was current at the time of the offending in the present case.
On 15 September 2020, the applicant was charged with unlicensed driving, riding a motorbike without an approved motorbike helmet, and riding a motorbike with a passenger without a helmet. Those charges are set down for a mention hearing in Werribee Children’s Court on 15 June next. Subsequent to the offending in the present case, the applicant was also charged, on 25 February 2021, on two charges of burglary, two charges of criminal damage, and two charges of theft. Those offences were alleged to have been committed on 18 October 2020.
After the applicant was arrested on 11 January, he was remanded in custody. On 12 January, an application for bail on his behalf was adjourned to 14 January, to enable the applicant to be assessed by Orygen Children’s Court Mental Health Advice and Response Service (‘Orygen’). On the return of the bail application on 14 January, the applicant was granted bail on conditions that he observe a curfew between 10:00 pm and 6:00 am, that he reside at his mother’s address, and that he attend and comply with the conditions of Youth Justice Supervised Bail.
It is evident, from a report of the Youth Justice Bail Service dated 22 February 2021, that the applicant failed to comply with each of those conditions. He failed to attend scheduled appointments at the Werribee Justice Service Centre, and Youth Justice was not able to contact him until 29 January. His mother told Youth Justice that the applicant failed to observe his bail conditions, and that he came and went from his father’s house and her house as he pleased. She said that he was unable to adhere to the boundaries that she set, and that he created stress in the home. It is apparent, from the offending, in which the applicant engaged on 29 January, that he disregarded the condition of his bail requiring him to remain at his mother’s address during the curfew hours between 10:00 pm and 6:00 am.
Applicant’s personal circumstances
The applicant was born on 7 October 2004. Although he has a large number of current charges against him, he does not have any previous convictions. He has a sister who is 18 years of age. His parents divorced some years ago. They have both since remarried, and have children by their second marriages.
When the applicant was approximately six years of age, he was diagnosed with Attention Deficit-Hyperactivity Disorder (‘ADHD’). He was prescribed medication to treat that condition, however some years ago he ceased taking that medication. In 2020, he was enrolled at Hoppers Crossing Secondary College. It would appear that he has not been meaningfully engaged in his formal education since he was about thirteen years of age, but he did complete a pre-apprenticeship course in carpentry at the college. At the time of his arrest, he was working with his father in his father’s cousin’s cladding business Elite Rendering and Cladding.
Reports concerning the applicant
As mentioned, the Children’s Court magistrate, who heard the bail application, obtained a report from Orygen. The applicant was assessed by a video conference on 13 January for approximately thirty-five minutes. Ms Olivia Morrow, the psychologist who assessed him, formed the impression that the applicant presented with some likely anger management difficulties on a background of a childhood diagnosis of ADHD, for which he was not currently being treated. She recommended that, in order to support the applicant’s return to the community, he be referred to a private psychiatrist for assessment of his need for medication for ADHD, and that he be referred to the Youth Justice Mental Health Program for further assessment of his mental health and anger issues.
The Youth Justice Bail Service has provided three reports. The first report, dated 22 February 2021, recommended that the applicant was not suitable for the bail service. The second and third reports, dated 26 March 2021 and 7 April 2021 respectively, have recommended that the applicant is suitable for an intensive bail program.
The second report noted that when the applicant was placed on supervised bail with Youth Justice by the Children’s Court on 14 January 2021, he failed to attend his scheduled appointments at the Werribee Youth Justice Service on 21 January and 28 January. The report noted that the applicant had not been compliant with his medication regime for his ADHD, and that he had been regularly using cannabis until his most recent remand. The applicant had re-commenced his medication regime for ADHD on 5 March 2021 while on remand. The report noted that, according to medical advice, a minimum of 21 days is required before any benefits from that medication can be established.
The report assessed the charges against the applicant as being serious and as ‘high harm, high impact offences’. The report noted that Youth Justice had concerns that conditions imposed by the Court might not mitigate the risk based on the applicant’s history of non-compliance and re-offending of a serious nature while on bail. In particular, there were concerns about the applicant’s lack of self-regulation and his violent and aggressive tendencies.
The second report recorded that since the applicant had been on remand, he had been involved in a number of incidents involving violence. On 5 February, he was the victim of an unprovoked assault. On 13 February, and on 18 February, he participated, with other inmates, in unprovoked attacks on other young people. Since 25 February 2021, he had been involved in further incidents ranging from throwing drink bottles at staff, threatening and abusing staff, continuing disobedience, and refusal to engage in lockdown. He also had struck staff members in the ribs. The applicant has been the direct cause of two code blue incidents on 21 March and 22 March respectively which involved him engaging in dangerous behaviour.
The report noted that the applicant’s impulsivity and poor management of his emotions are a significant risk factor to himself and the community. However, he was then adhering to his medication regime which might support an improvement in his conduct, coupled with his engagement with the planned supports which have been compiled in the intensive bail plan. The report noted that if the applicant were released on bail, Youth Justice would utilise the supports of Youth Support and Advocacy Service, Orygen Youth Health and Caraniche Psycho-social Programs to address his behaviour and implement anger management strategies.
The third and most recent report, dated 7 April 2021, is substantially to the same effect. The report notes that since the last bail assessment (on 26 March) the applicant has improved his engagement with Youth Justice. He has attended, and acted appropriately in, scheduled Zoom appointments.
However, on the other hand, since 26 March 2021, the applicant has been involved in three further significant incidents, which occurred on 26 March, 31 March and 3 April respectively. In the first incident, the applicant became involved in an altercation between other young people on remand, as a result of which he received a manager’s warning. In the second incident, the applicant and another youth became involved in an altercation in the program centre classroom which escalated when the applicant physically assaulted the other youth. In the third incident, the applicant spat at a staff member and became threatening and abusive towards her. After he was placed in his room the applicant then punched the walls of his room, thereby injuring his hand.
The third report notes that the applicant’s behaviour and attitude on remand ‘has continued to be extremely poor’. In addition to those three incidents, on 1 April, the applicant was disruptive during dinner time, and he threw rubbish and sauce all over the kitchen. On 3 April, the applicant and another youth shouted racial slurs and derogatory comments towards cleaners, and poured water beneath their doors onto the hallway, creating a hazardous situation for staff.
In the third report, Youth Justice has expressed concerns about the applicant’s lack of self-regulation and his violent and aggressive tendencies. Accordingly, Youth Justice has a ‘high degree of concern’ that clear conditions imposed by the Court might not mitigate the risk based on the applicant’s history of non-compliance with bail conditions, and of engaging in further serious offending while he is on bail. Nevertheless, Youth Justice has expressed the view that, based on the supports available to the applicant, the current intensive bail plan could adequately mitigate those risks.
The report has attached to it an intensive bail plan which is to the following effect:
•The applicant will be engaged in employment with Elite Rendering and Cladding from Monday to Saturday.
•The applicant will engage with Youth Justice and Youth Justice Community Support Service to provide recreational activities including soccer and attending a gym.
•The applicant will engage with Orygen Youth Health to monitor his medication compliance and to address his anger issues.
•The applicant will engage with Youth Support and Advocacy Service for assessment and counselling in relation to his substance abuse issues.
•The applicant will be subject to twice weekly in-house supervision appointments with Youth Justice.
•The applicant will reside with his father and be subject to a curfew each night between 8:00 pm and 6:00 am.
Based on that plan, Youth Justice, in the third report, has recommended that if the applicant is released on bail, conditions be imposed, including the following: that he reside at his father’s home; that he be subject to a night time curfew; that he attend at Elite Rendering and Cladding between 7:00 am and 4:00 pm from Monday to Saturday; that he engage with Caraniche Forensic Youth Services; that he engage in psychological counselling, and in alcohol and other drug counselling services as directed by Youth Justice; that he not use a drug of dependence; that he comply with prescribed medication for ADHD; and that he attend for judicial monitoring at the request of the Court.
The author of the report, Ms Patricia Alexander, gave evidence on the hearing of the application for bail. She confirmed that during the period in which the applicant has been on remand, he has been subject to a large number of lockdowns. The principal cause of those lockdowns has been the lack of staff currently available at the Parkville Youth Justice Centre. During that period, the applicant and other inmates at Parkville have not been able to attend the programs which would otherwise have been available to them.
Ms Alexander stated that, to her perception, the applicant’s attitude to Youth Justice has changed during the period in which he has been on remand. Initially, he was particularly confident, and he demonstrated no understanding of the seriousness of his behaviour in custody and when on bail. However, when Ms Alexander last spoke to the applicant on 1 April, he was more focused and calm, and he appeared to be determined to demonstrate that he would be able to behave satisfactorily if he were granted bail. Ms Alexander described, in some detail, the program that would be available to the applicant if he were granted bail. She stated that the applicant’s family are particularly supportive of him and have expressed a desire to ensure that he attend each of the services which would be available to him. Ms Alexander considered the level of support demonstrated by the applicant’s family to be quite exceptional. She also stated that the applicant has struggled to cope with separation from his family while in custody.
In cross-examination, Ms Alexander stated that the applicant has not established a level of insight into the wrongfulness of the offending conduct with which he is charged. However, he does have an understanding of the hurt that he has caused to his family, and he has expressed a determination to stay out of Parkville Youth Justice Centre if he were granted bail.
The bail provisions
The present charges against the applicant include three Schedule 2 offences under the Bail Act 1977, namely, carjacking (charge 1), aggravated burglary (charge 2), and attempted aggravated burglary (charge 4). Those offences are alleged to have been committed while the applicant was on bail on the charges brought by Senior Constable Stewart and the charges brought by Senior Constable Iannelli, each of which included separate Schedule 2 offences. They comprised aggravated burglary (four charges), home invasion, attempted armed robbery, attempted aggravated carjacking, attempted aggravated burglary, and offences against the Bail Act (being other charges of committing an indictable offence while on bail). Accordingly, s 4AA(2)(c) and s 4A(1A) of the 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 the 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.[1] As the applicant is a child, pursuant to s 346(6) of 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 his 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.
[1]Bail Act 1977, s 4A(3).
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 bail. If the applicant has established the existence of the requisite exceptional circumstances, the prosecution bears the burden of satisfying the Court as to the existence of such an unacceptable risk.[2]
[2]Ibid s 4D(2).
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.[3]
[3]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 T 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.[4]
[4][2018] VSC 438, [14]. See also Re JF [2020] VSC 250, [32] (Tinney J); Re AM[2020] VSC 569, [36] (Tinney J); Re GG [2021] VSC 12, [47] (Incerti J).
Similarly, in determining whether a risk (of reoffending or endangering the safety of others while on bail) is unacceptable, the age and circumstances of the applicant are important considerations. A risk that might, in other circumstances, be deemed to be unacceptable, may, in the case of a child offender, be found to be acceptable.[5]
[5]Mokbel v DPP [No 3] [2002] VSC 393, [10] (Kellam J); HA v The Queen [2021] VSCA 64, [6], [73] (Maxwell P and Kaye JA) (‘HA’).
In a case such as the present, a number of the facts and circumstances, that are relevant to an assessment of whether exceptional circumstances have been established, are also relevant to determining whether a risk of re-offending, or endangering the safety of others while on bail, is unacceptable. In particular, one matter, that has often been regarded as important, in determining whether exceptional circumstances have been established, is the presence or absence of factors which may point to the applicant presenting as an unacceptable risk in any of the ways specified by s 4E(1) of the Bail Act.[6]
[6]Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
Submissions
Counsel for the applicant commenced his submissions by acknowledging that the offences with which the applicant has been charged are particularly serious. He accepted that if not for the applicant’s age, the circumstances that he has so far endured in custody, and the significant support that would be available to the applicant, the application for bail would be doomed to fail. However, counsel submitted that particularly in light of those circumstances, I should be satisfied that exceptional circumstances have been established which would justify the grant of bail to the applicant, and that I should also be satisfied that there would not be an unacceptable risk of the applicant re-offending or endangering members of the community, if he were released on bail.
In support of the application, counsel for the applicant submitted that exceptional circumstances have been established, which consist of the following eight factors:
(1)The applicant’s age.
(2)The anticipated delay in the hearing and determination of the charges.
(3)The fact that the applicant has already spent some ten weeks on remand.
(4)The hardship that the applicant has endured while on remand.
(5)The applicant has available regular employment.
(6)The applicant has now been prescribed, and is taking, appropriate medication for his ADHD.
(7)The applicant has significant family support available to him. In particular, his mother, father and sister are each supportive of his release on bail, and they have expressed to Youth Justice their desire to ensure that he adhere to the terms of bail.
(8)The applicant will have available intensive professional support through Youth Justice, which will involve his engagement with the following services: Orygen Youth Health; Youth Support and Advocacy Service; Youth Justice Community Support Service; and Caraniche Forensic Youth Services.
Further, counsel submitted that the applicant, if released, would not constitute an unacceptable risk of re-offending or of endangering the safety and welfare of a member of the community. In support of that submission, the applicant relied on the factors to which I have just referred, and on the following factors:
(1)The applicant’s improved engagement with Youth Justice.
(2)The applicant’s willingness to engage with support services and his motivation to pursue pro-social activities such as soccer and gymnasium.
(3)The applicant’s expressed desire to make amends for the hurt and harm that he has caused to his family by his re-offending.
(4)Youth Justice has formulated a detailed response plan that would be implemented in the event that the applicant should fail to comply with the terms of bail.
In response, counsel for the respondent submitted that the factors, enumerated by counsel for the applicant, do not constitute exceptional circumstances. In that respect, counsel noted that the applicant is not able to rely on the absence of factors demonstrating that he would not be an unacceptable risk of re-offending or endangering the community. Counsel further submitted that, if exceptional circumstances are established, the material that has been filed by the respondent demonstrates that, if the applicant were granted bail, he would be an unacceptable risk of endangering the safety or welfare of persons in the community, and of committing further offences while on bail.
In support of those propositions, counsel noted the nature and seriousness of the alleged offending in respect of which the applicant seeks bail. He submitted that the prosecution case is, on its face, strong, in relation to the first charge. In that respect, he noted that the applicant has conceded that he was involved in the theft of the motor vehicle. The prosecution will rely on the evidence of the victim and the CCTV footage to support that the applicant was also involved in the use of force in effectuating that theft. Further, notwithstanding that the applicant had the benefit of Youth Justice Supervised Bail when he was released on 14 January, he continued to offend in a most serious manner. He also failed to engage appropriately with Youth Justice Services when he had the opportunity to do so.
Counsel for the respondent further noted that when the applicant was released on bail on 14 January, he breached each condition of the bail, including that he not drive a vehicle, that he observe a curfew, that he reside at his mother’s address, that he not associate with his co-offenders, and that he comply with the Youth Justice Supervised Bail Program formulated by Youth Justice. Counsel noted that while the Intensive Bail Program that is now proffered would be more concentrated than the previous program, the essential elements of the two programs are almost the same. Counsel further noted that the applicant was living with his father when he committed the previous offences that are the subject of charges in respect of which the informants are Messrs Stuart and Iannelli. When he was bailed on 14 January, he was required to reside with his mother. Accordingly, it was submitted, there cannot be adequate confidence that either parent can sufficiently influence or control the conduct of the applicant while he is on bail. Counsel further noted that the applicant has continued to misbehave while on remand, notwithstanding that he has been receiving medication for ADHD.
Analysis and conclusions
The first question is whether the applicant has established the existence of exceptional circumstances that would justify his release on bail.
In respect of that question, the factors enumerated by counsel for the applicant are of some substance. In particular, as I have mentioned, the young age of the applicant is a matter of significant weight in the determining whether the applicant has established exceptional circumstances. Under s 3B(1) of the Bail Act, it is necessary to consider all other options before remanding the applicant in custody, and to take into account the importance of strengthening the relationship between the applicant and his family, by permitting him to continue his living arrangements with his parents.
In addition, the applicant has no previous convictions, and he has already spent some ten weeks on remand. His period of custody has involved a particular degree of hardship. Due to staff shortages at Parkville Youth Justice Centre, the applicant has been subject to a large number of lockdowns, albeit that most of them have been for relatively short periods. In view of the current COVID-19 pandemic, he has not been able to have any personal visits by members of his family. In addition, he has not had available a number of programs.
The potential delay in the hearing and disposition of the charges is another factor relevant to the consideration of whether the applicant has established exceptional circumstances. The charges against the applicant, and the set of charges in respect of which Constable Iannelli is the informant, are listed for a hearing on 13 May in the Magistrates’ Court, on which date the prosecution intends to apply to have the charges uplifted for hearing and determination in the County Court. Regardless of the outcome of that application, it would seem that the hearing and determination of the charges against the applicant will be subject to further delay of, at the least, a number of months, if not more.
It is also relevant that the applicant does have family support, and that he does have available to him gainful employment, if he were released on bail. Youth Justice has devised a detailed and comprehensive intensive bail plan which is directed to addressing a number of the underlying issues that affect the applicant’s behaviour.
The factors to which I have so far referred, when taken in combination, do lend cogent support to a finding of exceptional circumstances. However, those factors must be viewed in the context of other considerations, relied on by the respondent, and which, in my view, are of particular substance.
The offences, on which the applicant is on remand, are serious. Counsel for the applicant realistically acknowledged that, while it would be open to impose a non-custodial sentence on the applicant, in view of the gravity of the offending, the applicant might be sentenced to a period of detention in a Youth Justice Centre.
The offending, that is the subject of charge 1, was particularly serious. I note that the applicant denies being involved in the application of any force to the victim, which is an essential element of the offence specified in s 79 of the Crimes Act 1958. At this preliminary stage, it is not possible to make a conclusive assessment of the strength or otherwise of the prosecution case in respect of that element of the charge. However, I understand that the evidence of the victim will be that the application of force involved not only the co-offender, but also the applicant. That evidence would be supported by the CCTV footage of the incident which I have viewed. Overall, at this preliminary stage, I would consider the prosecution case, that the applicant was criminally involved in the offence under s 324 of the Crimes Act, to be reasonably strong.
Although the applicant does not have any previous convictions, the offences, in respect of which he seeks bail, were not committed in isolation. At the time that he is alleged to have committed those offences, he was on bail in respect of three other separate sets of charges, each of which involved allegations of serious offending by the applicant. It is of particular relevance that the offences in the present case were alleged to have been committed by the applicant just two weeks after he had been released on bail in respect of two of those sets of charges.
Further, as I shall shortly discuss, this is not a case in which the applicant can point to the absence of any material risk that, if he were released on bail, he might either re-offend or endanger the safety of others. The offending, in respect of which the applicant seeks bail, itself involved a troubling degree of violence. In addition, a number of the charges, in respect of which the applicant was already on bail, also involved a significant degree of violence and danger to other members of the community.
Thus, while the applicant has been able to identify a number of factors militating in favour of a finding of exceptional circumstances — in particular, his age, the fact that he has already spent ten weeks on remand in circumstances of some hardship, and the potential delay in the disposal of the charges — those factors are to be considered in the context of the other important circumstances to which I have just referred. Taken together, and in particular bearing in mind the seriousness of the offending, the fact that the applicant is alleged to have committed the offences while on bail in respect of three other sets of charges, and the degree of violence involved both in the instant offending and in the offending which is the subject of the earlier charges, I am not persuaded that the applicant has established the existence of exceptional circumstances that would justify his release on bail at this stage.
Further, I am persuaded that if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of members of the public, and that he would commit an offence or offences while on bail. I have reached that conclusion for the following reasons.
As I have noted, by his offending, the applicant has breached three separate sets of bail to which he was subject. In addition, he has demonstrated an inability or unwillingness to abide by a number of important conditions of his bail that were directed to reducing the level of risk that he would re-offend or endanger others in the community. After he was released on bail on 14 January, he failed to comply with conditions of his bail that he reside at his mother’s house, that he observe a night-time curfew, that he not associate with his alleged co-offenders, that he not drive a motor vehicle, and that he engage with Youth Justice. His conduct, in breaching each of those basic conditions, militates strongly against a conclusion that, if he were released on bail, there would not be an unacceptable risk that he would not adhere to conditions of bail that would be directed to preventing him re-offending and endangering members of the community.
The offending by the applicant in the present case, and the charges in respect of which the applicant was already on bail, each involved a troubling degree of violence engaged in by the applicant. In the aggravated burglary of 5 January, the co-offender was armed with a knife. The applicant is alleged to have carried and wielded a knife in the commission of the attempted armed robbery on 7 January. The attempted carjacking on 10 January involved the use of a knife to intimidate the female occupant of the vehicle which the applicant and his co-offenders were attempting to steal. The carjacking offence on 29 January, that is the subject of charge 1, involved the use of a significant amount of violence against a defenceless and vulnerable old man.
In that respect, it is a matter of particular concern that, according to Ms Alexander, the applicant has not developed any insight into the wrongfulness of the conduct in which he is alleged to have engaged in committing the offences with which he is charged. Ms Alexander, in evidence, stated that the applicant does not understand why the conduct, which is alleged to constitute that offending, has resulted in him being held in custody.
In that context, it is a matter of some concern that, since the applicant has been on remand, he has been engaged in a number of incidents in which he has resorted to violence. He was involved in three such incidents during the period of two weeks that preceded the current application. Notwithstanding that the applicant is already subject to a number of charges against him, and the fact that he has been on remand, he has shown an inability to control his aggressive impulses and to regulate his own behaviour. His conduct while on remand necessarily detracts from any confidence that if he were released on bail, he would refrain from engaging in further offending involving acts of violence.
In that respect, the observations in the most recent Youth Justice Bail Service report are of particular concern. In the report it is stated:
Should [the applicant] be released on bail, Youth Justice have concerns that he will continue to associate with negative peers, which would increase his risk of engaging in high risk situations.
Whilst [the applicant] has stated his intentions to refrain from further involvement with these peers, there are concerns in relation to his behaviour and peer associations whilst on remand. [The applicant] has continued to engage in violent and disruptive behaviour whilst on remand and clearly struggles to deal with his anger issues, frustrations, and impulsiveness.
The report further stated:
Youth Justice have a high degree of concern that clear conditions imposed by the Court may not mitigate the risk based on his history of non-compliance and alleged re-offending of a serious nature whilst subject to bail.
In her evidence, Ms Alexander confirmed that she continued to have that high level of concern about the capacity of bail conditions to sufficiently address the risk of the applicant committing serious offences if he were released on bail.
Counsel for the applicant has identified a number of factors which, he submitted, might reduce the degree of that risk should the applicant be granted bail. However, a number of those factors were already in existence during the period in which the applicant is alleged to have committed the offences that are the subject of the current charges against him.
It would certainly be beneficial to the applicant if he were to accept the opportunity that has been provided to him to engage in gainful employment with his father’s cousin’s cladding business. However, at the time of his arrest, the applicant was working in that business, and his employment as such did not deter him from being engaged in the commission of the offences which are the subject of the charges against him.
I accept that the applicant’s parents are genuinely committed to endeavouring to ensure that the applicant comply with any conditions to which he would be subject if he were released on bail. However, it would seem that his parents have so far been unable to prevent him engaging in repeated offending. While the applicant’s attitude to his parents, and his communication with them, has improved, his conduct while on remand demonstrates that he still has real problems with complying with limits on his behaviour, and with self-regulation and impulse control.
I also accept that the program that has been devised by Youth Justice, which would involve the applicant participating in important rehabilitative treatment and counselling, would be directed to addressing a number of issues which, it would seem, have played a role in the his repeated contraventions of the law. However, as Ms Alexander has acknowledged, notwithstanding the availability of those services, there remains a significant degree of concern that conditions imposed by the Court, requiring the applicant to undergo such treatment, may not sufficiently mitigate the risk that he poses, based on his history of repeated non-compliance with bail conditions and repeated re-offending. As I have noted, in evidence, Ms Alexander confirmed that she continues to have a high degree of concern that, if the applicant were granted bail, the conditions on which he were released may not mitigate the risk to community safety, based on the applicant’s history of non-compliance and alleged re-offending of a serious nature while he was being subject to previous grants of bail.
In short, the applicant has been involved in repeated offending while he has been on bail. He lacks insight into the wrongfulness of the conduct in which he is alleged to have engaged in committing those offences. He has breached the conditions of bail in several respects. He is alleged to have been involved in serious offending that involved a troubling degree of violence. Since he has been on remand, he has been engaged in a number of violent incidents and episodes of errant behaviour. All of those considerations demonstrate that, if he were released on bail, there would be a significant risk that he would re-offend and endanger others. Notwithstanding the factors that have been relied on by the applicant, including his age, it must be concluded that that risk is unacceptable.[7]
[7]Cf HA [2021] VSCA 64, [67], [73] (Maxwell P and Kaye JA).
Accordingly, I am persuaded that if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of other members of the community, and that he would commit further offences.
Summary of conclusions
For the foregoing reasons, the applicant has failed to establish that there are exceptional circumstances justifying the grant of bail. Further, if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of others, and that he would commit further offences.
I should add that I have reached those conclusions after giving the application anxious consideration, in view of the applicant’s age, his family supports, and his prospects of employment, and in view of the comprehensive bail plan that has been prepared by Youth Justice. However, for the reasons set out above, I am compelled to conclude that the application for bail must be refused.
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